There’s a crime that’s been in the news the past few days, where a professor in Philadelphia is accused of murdering his wife. According to the news stories, he’s been charged with both first-degree and third-degree murder. Can someone explain this to me? I would have thought first-degree murder and third-degree murder would be mutually exclusive, provided they’re talking about the same act, which seems to be the case here.
It’s probably a “lesser included offense.” This means that if the jury decides he’s not guilty of first-degree murder, they still may find him guilty of third-degree murder. But he can’t be guilty of both.
But are you saying that if someone is tried for a first-degree murder, they can’t be convicted of anything but first-degree murder? In other words, the third-degree murder charge is the prosecution’s back-up plan? But in that case, why not second-degree murder as well?
It depends on the elements required to prove something is a crime. I don’t know the statutes in question, but there may be an element required to prove second-degree murder that if present in this particular crime would be first-degree murder as well. So third becomes the backup to first for this crime.
Take, for example, a thug who points what appears to be a gun at you and takes your wallet, your watch, your wife’s purse and jewelry, etc. What’s a DA going to charge him with? Well, look at the following, loosely adapted from New York’s penal law, which I happen to know better than that of other states:
Petty larceny is stealing something.
Grand larceny second degree is stealing things aggregately valued at over $1,500.
Grand larceny first degree is stealing things aggregately valued at over $10,000.
Robbery third degree is stealing something with the threat of force.
Robbery second degree is stealing something using force where the victim is reasonably afraid for his life.
Robbery first degree is stealing something using a deadly weapon or something intended to represent one where the victim is reasonably afraid for his life.
The jury may not agree that the DA has proved robbery first degree, and convict the accused of one or more of the lower offenses. But the DA will charge him with the lot, giving the jury opportunity to convict if they believe that “he done it” even if they can’t reach a verdict that all the elements required for robbery first degree were present.
Murder third degree is probably something like “criminally and feloniously take the life of another.” First degree requires proof of malice aforethought. Second degree, to get hypothetical here, might be that the death occurs in the commission of a crime planned and intended to give grave physical injury – he planned to hurt her bad but not necessarily to kill her, but she died, in other words. Since the previous intent has to be proven for either 2nd or 1st degree, proving it in this particular crime makes it first degree – and if the jury doesn’t agree it’s been proven but do agree he criminally took her life, it’s 3rd degree.
With both charges in front of it, the jury may:
Acquit on both first and third.
Convict on both first and third.
Acquit on first degree murder, but convict on third.
Acquit on third but convict on first.
The first two are easy to understand. If the jury acquits on both charges, the guy walks out of the courthouse. If they convict on both charges, then the convictions merge into one conviction for first degree murder for sentencing purposes.
The third is easy, too – the jury doesn’t believe all the elements of first degree murder have been proven, but they believe that all the elements of third degree murder were proven. The man is sentenced for third degree murder, whatever that is in Pennsylvania.
The fourth can seem puzzling. The jury, in one breath, says, “He’s not guilty of third degree murder, but he is guilty of first degree murder.” Yet all of the elements necessary to prove third degree murder are ALSO present for first degree murder!
A jury’s verdict will stand even if it is logically inconsistent, as long as it is legally consistent. This rule comes to us from Dunn v. U.S., a Supreme Court case from the 1930s. Legally inconsistent verdicts are those where both crimes arise from the same set of fact and involve the conclusion that the same essential element or elements of each crime were found both to exist and not to exist.
Logically inconsistent verdicts, in contrast, happen when the jury acquits and convicts the accused of crimes composed of different elements, but arising out of the same set of facts. These may be the result of compromise during deliberations or result from the jury’s desire to show leniency.
Assuming in Pennsylvania that third degree murder is a lesser-included offense of first degree murder (that is, first degree murder contains all the elements of third degree murder, plus more), and assuming the theory of the case makes the third degree charge a lesser-inluded offense, then the last example would be a legally inconsistent verdict and the judge would not accept it.
It makes for more dramatic TV when the verdict is read in the order of progressively worse offenses. When they acquit on third-degree, the defendant can be shown breathing a sigh of release and then blammo - convicted of first degree. Bet you didn’t see that one coming, gonif!
Thanks, this is helpful information. It makes me wonder if this is a common prosecutorial practice. It never came to my notice before, but that just may be me. Is there ever a worry that throwing in a lesser charge could create the perception among the jury that there’s not enough evidence to sustain the more serious charge?
Taking a look at the Pennsylvania statute:
It appears that second degree murder in PA is a codification of the felony murder doctrine, and the facts in this case don’t appear to involve the commission of an inherently dangerous felony, which leaves first and third. States that have the death penalty generally have differing requirements for murders that merit the death penalty on one hand, and a “catch all” provsion for all other murders on the other. Pennsylvania appears to be one of those states.
Sure - but it’s balanced by the worry that they ACTUALLY don’t have enough evidence to convict on the more serious charge.
If they choose to charge only the most serious, the prosecution is rolling the dice; the jury has only two choices: to convict or acquit. If the prosecution fails to convince the jury of each element, they lose the whole thing.
If they charge lesser-included offenses, then they may get a lesser conviction instead of an acquittal… or a lesser conviction instead of a greater conviction. The prosecutor has to look at what his evidence is and how the jury will receive it.
A related but as yet unasked question: can the DEFENSE demand a lesser charge?
In other words, can the defense come along and say, “Hey, the evidence shows that my guy snapped and pulled the trigger in a fit of rage, so you should charge him with the lesser-included offense!”
No. The defense can of course argue to the jury that there was no intent, and that they must acquit because of the lack of that element, but they generally can’t force the prosecution to charge a lesser offense.
They do get a bit more of a vote when it comes to affirmative defenses, though. As long as there’s even a scintilla of evidence to support, say, a self-defense theory, the defense is entitled to a jury instruction explaining self-defense and how it may negate the criminality of a homicide.
Different result here in Texas, at least as concerns a jury charge. Here you’re entitled to a jury instruction on a lesser included offense if “the lesser included offense is included within the proof necessary to establish the offense charged, and some evidence exists that if the defendant is guilty, he is guilty only of the lesser offense.” Penry v. State, 903 S.W.2d 715, 755 (Tex.Crim.App.1995). If a defendant is charged with murder and the evidence fairly raises the issue of voluntary manslaughter, the court must honor a request for an instruction on the lesser included offense. If the evidence suggests instead that the defendant is either guilty of the crime charged or none at all, he’s not entitled to a such a charge.
Yes, but is mopery a lesser included offense of dopery?
::: d & r :::
Only in Blackacre.
Ah, Beryl Mooncalf shall live forever in our hearts.