IANAL, but I think double jeopardy only bars convictions for both crimes as a result of a single incident - I’m certain I’ve seen people charged with both robbery and possession of stolen property or both attempted murder and assault* as part of the same prosecution.
No, double jeopardy means the state can’t retry you if it fails to make it’s case in the first trial. It doesn’t mean that you can only ever be guilty of one crime at a time. It’s pretty common for a criminal who murders someone to be charged with the murder plus illegal possession of a firearm plus illegal carry of a firearm, for example.
Those are clearly separate offenses in that it is possible to murder someone without a firearm. Those are two evils which the state can punish.
However, if I am guilty of theft, then by definition I am also guilty of possessing stolen property. It is similar to how I cannot be found guilty of both robbery and larceny. Why? Because in order to commit robbery, I must also commit a larceny. It’s double jeopardy.
I /think/ that around here, if you were convicted of both crimes, the sentencing guidlines (which have the force of law) would not give you sequential sentences. You’d get maybe 1 and 3, served at the same time.
You could of course appeal, and if only one was overturned you’d still be serving the other.
Lesser included offenses come up all the time, when you have a crime with multiple levels of severity. If you’re convicted of the most severe, that includes all of the lesser ones as well, but the jury might decide that there’s enough evidence for a lesser included offense but not for the big one.
Suppose, for instance, that you’ve got solid evidence that the defendant murdered someone, but you don’t know if the jury will agree that it was premeditated. You charge the guy with both first-degree murder and second-degree murder, and see what they say.
The above is is not an accurate statement.
Double jeopardy protects against three general scenarios:
[ul]
[li]Subsequent trial for a crime following a conviction of that crime[/li][li]Subsequent trial for a crime following an acquittal of that crime[/li][li]Multiple punishments for the same crime[/li][/ul]
In your example, it’s no problem to imagine charging murder plus illegal possession of a firearm plus illegal carry of a firearm. But if the jury were to convict for all three, it’s possible that two of those charges would have to merge into one for sentencing purposes. It depends on the specific elements of “illegal possession of a firearm,” and “illegal carry of a firearm.”
The rule is that two crimes might actually be one crime for double jeopardy purposes, and the way it’s determined is: they are different crimes only if each requires proof of an element that the other does not.
Going only by the title of the offense, it sounds to me like “illegal possession of a firearm,” can be proved with all the same elements of “illegal carry of a firearm,” except for the carrying. If that’s the case, and “illegal possession” contains no extra element that does not appear in “illegal carry,” then the two crimes are the same for double jeopardy purposes and the convictions will merge for sentencing purposes.
[quote=“Bricker, post:26, topic:795511”]
Double jeopardy protects against three general scenarios:
[li]Multiple punishments for the same crime.[/li][/quote]
Interesting, I did not realize that the third one was considered double jeopardy, just the first two. I thought it was just a general principle that some areas adhered to and some didn’t, I had no idea the ‘lesser included offenses’ concept was tied into DJ.
In most of the US, it’s illegal for a felon to possess a firearm at all, which is what I was thinking of for possession (I mentioned ‘criminal’ because I was thinking of someone with an existing criminal record). Then there is a separate crime for carrying a deadly weapon (or specifically firearm) without a license/permit or into a specific area or for the purpose of committing a crime. So it looks like that specific example still works because there are distinct elements that apply to one crime but not the other. “Posession” requires that the person be a felon (and ‘carry’ doesn’t), while ‘carry’ requires that the person transport the weapon out in public somewhere without appropriate permit or into a prohibited area or to commit a crime.
That’s a fair point. As I understand it, the reason to create the possession offence and to do away with the receiving offence was to eliminate the possibility that even if the individual was found in possession, they could avoid a conviction for theft on a reasonable doubt, and also avoid a conviction for receiving - that’s the point that Noel Prosequi was making.
Now, someone found in possession can be charged with possession. If there is also evidence that the person may have stolen the property, they could be charged with both offences. If convicted of theft, the court would normally enter a stay of proceedings on the possession offence, for the reason you gave.
(We don’t do an overlap in charges under double jeopardy, as Bricker has outlined is the case in the States. Rather, we have a different principle, the rule against multiple convictions for related offences, called the Kienapple Principle.)
But, you can see a situation where a person could be convicted of both theft and possession.
Suppose Cat Woman steals a lovely diamond, but keeps it to admire, not to sell.
If Batman finds her in possession a year later, she could conceivably be convicted of both theft and possession, because the fact of keeping the diamond in her own possession for such a long time after the theft might be enough to take it outside the Kienapple principle.