… but the jury thought that you were only guilty of second degree murder, could they, or the judge change the charge to second degree murder, or would the defendant be found not guilty, or would a mistrial occur? And if they were found not guilty, would they be able to be charged with second degree murder under double jeopardy?
On the first point, you’re talking about the concept of a “lesser included offence,” that is, an offence which is less serious than the offence the accused is charged with, but has similar elements.
How it works will depend on the jurisdiction. From previous threads, I gather that in some states in the US, the prosecutor has the authority not to allow lesser offences to be considered: it’s the offence charged or nothing. In other jurisdictions, it’s not the call of the prosecutor, but the judge: the judge instructs the jury on lesser included offences. It’s then up to the jury: if they do not find the accused guilty of the charged offence, they have to consider whether they find the accused guilty of the lesser included offence.
For example, I’m posting from Canada, where we use the second approach. The difference between first and second degree murder is premeditation: if the accused intended to kill but without premeditation, then it’s second degree. If the accused intended to kill with premeditation, it’s first degree. If the Crown has charged first degree murder, the judge will instruct the jury on this difference. If the jury concludes that the accused intended to kill, but without premeditation, then they should find the accused guilty of second degree murder.
On the second question of double jeopardy, if all of the elements of the lesser included offence were contained in the original charged offence, and the jury found the accused not guilty, that’s a ruling on the lesser included offences as well. The Crown could not then bring a charge of second degree murder.
IANAL, but my understanding is that in the USA the jury can only deliver a verdict of fact, not law. The jury affirms or denies that the accused did some actions, and it’s the court that declares that those actions meet the legal definition of crime-X.
That’s not quite right. Yes, it’s the judge’s job to determine the law. The judge does that by instructing the jury on the law, after all the evidence is in.
It’s then the jury’s job to decide the facts, based on the evidence they’ve heard, and then to measure those facts against the law stated by the judge. If they determine that the facts show the accused committed the offence, set out in the judge’s summary of the law, then they should convict. If they determine that the facts don’t come within the law summarised by the judge, or have any doubts, then they acquit.
Their verdict of “guilty” or “not guilty” is the verdict of the Court.
The judge has no role in the final verdict.
Under what circumstances can a judge ‘set aside’ a jury’s verdict?Or can he?
I have a vague idea that a jury which convicts even though the Prosecution has done nothing in the way of making a case, the judge can say ‘thank you for coming in, now get out of here you jerks’.
Also: ‘Directed Verdict’ - Judge says ‘acquit - there is no lawful basis for conviction’. Can this happen?
The first is called a judgment n.o.v. - judgment “non obstante verdict” - judgment notwithstanding verdict. The argument is that the jury’s verdict of guilty is unsafe for some reason and should be set aside. We don’t have them in Canada, so I don’t know much more than that.
The second is a directed verdict of acquittal: were the defence moves, after all the prosecution’s evidence is in, that the prosecution has not led any evidence on an essential point. That’s a pretty hard standard to meet; not just weak evidence, but no evidence. But, if the defence can make that argument, then the judge directs the jury to bring in a verdict of “not guilty.”
So, could a case that started out as Murder 1 end up, due to Lesser Included offenses, with a jury finding the defendant only guilty of “Discharging a firearm within city limits”?
No, because that’s not a lesser included offence. The elements of the firearms offence don’t overlap with murder:
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you can commit murder without a firearm;
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murder is not limited to a city limit
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causing death or injury to another person is not an element of the firearms offence
Those are just some differences that come to mind.
However, if a trial is really going sideways, it’s possible the Crown might lay a new charge, of discharging a firearm, on the understanding that the accused will plead to that and the Crown will stay the murder charge. Highly unlikely that a trial could go that badly, though.
If you start with first degree murder, defined for the purposes of this exercise as premeditated intention to cause death, then the chain of lesser includeds might be:
1st degree murder (intentionally calling death with premeditation) => second degree murder (intentionally causing death but no premeditation) => manslaughter (causing death without intending to do so; no premeditation).
Not even battery or some version of assault?
All states are different, but my state allows either the State or the defense to request a lesser included offense instruction. The instruction must be given if the following two part test is met:
- The objective test—forget the facts of the matter at hand, just look at the offense. It must be impossible to commit the greater offense without also having committed the lesser in order to qualify. Northern Piper’s description of the degrees of homicide fit the bill.
Something that does not fit the bill is grand larceny of an automobile (the intent to take a car and deprive the rightful owner of it permanently) and joyriding (the intent to take a car and deprive the owner of it temporarily). My state supreme court has held that since joyriding requires an element not included in grand larceny (intending to deprive temporarily), it is not a lesser included. Some states differ.
Likewise, discharge of a firearm is not a lesser included of murder. Since it is possible to commit murder without discharging a firearm at all, then it does not qualify.
- The subjective test—the facts of the matter at hand must support an inference that a reasonable jury could believe the lesser included offense. Imagine a murder committed execution style. The defendant says I didn’t do it. If the defendant is guilty, it is first degree murder; no reasonable construction of the facts would make him only guilty of manslaughter. Therefore no instruction will be given.
If both tests are satisfied, the lesser included instruction is given.
At that point, you start to get into the definition of manslaugther in a particular jurisdiction. I’m familiar with Canadian law, where manslaughter is essentially “unlawful act manslaughter” - if you commit a criminal act without intending to kill someone, and someone dies, that’s manslaughter.
So, if you’ve assaulted someone and that person dies, that would be manslaughter. You couldn’t make out just a charge of assault in that situation.
If you assaulted someone and that person didn’t die, then you wouldn’t be charged with murder.
Either way, assault wouldn’t be a lesser included offence for murder.
Depending on how manslaughter is defined in other jurisdictions, maybe it would be an included offence - I don’t know.
And, I agree with ultra vires’s summary: even though second degree is a lesser included offence of first degree, if there is no evidence to support an allegation of intentional murder without premeditation, in that particular case the judge should not put second degree to the jury.
I think battery would be a lesser included for murder. I’m not sure how a murder would be committed without causing a harmful contact with a person.
Is assault a lesser included for battery? I’m arguing in front of the state supreme court next spring that it is not. Since it is possible to commit a battery without placing a person in fear of harm, it fails part #1.
Since the facts of my case, if true, shows a completed battery, no reasonable jury could believe that the defendant attempted yet failed a battery so it fails part #2.
I’ll let you know how it works out. 
We don’t have battery, so I’m not sure exactly what it entails.
One the one hand, if you have an assault but it’s difficult to show causation, it’s arguable that is a lesser included, even if the guy dies.
However, it is possible to commit murder without assault. The classic example is poisoning. So if it is possible to commit murder without an assault, can assault be a lesser included on the first, objective branch of the test you gave?
Good luck in the Supreme Court!
Battery is generally defined as an intentional harmful or offensive contact with another person.
Assault is the placing of another person in reasonable apprehension of a battery, or an attempted battery (I throw a punch at you but miss).
For the same reason as you, I do not believe that assault is a lesser included offense of murder.
It is possible to commit a battery without an assault (imagine sneaking up on someone from behind and punching them in the back of the head. No reasonable fear because the person never saw it coming; also no reasonable jury could conclude that the defendant tried but failed to punch the person).
Ah, it sounds like your “battery” is similar to our “assault”.
The reason I don’t think battery (US) / assault (CAN) is a lesser included offence for murder is that it’s possible to commit murder without physically assaulting the victim.
Poisoning is one example: one can poison the victim’s food surreptitiously without ever touching the victim or the victim even being aware of it.
Another way is the classic movie trope of cutting the brakes in the victim’s car.
In either case, if the plan works, one has intentionally caused the death of the victim but without any physical contact.
“Since he owed us money for all the heroin he’s bought, we were going to rough him up and scare him, but the gun accidentally went off”
2 men argue on a public street, first guy tells second guy, “I’m going to kill you!” The first guy reaches into his coat and the second runs away in fear. First guy pursues. Second guy is found dead of multiple stab wounds.
Plenty of witnesses to the assault, but nobody actually saw the murder happen or even saw if the assailant was actually armed. With no witnesses and weak physical evidence, prosecution may not get a murder conviction but the assault is easy to prove.
That’s how I imagine assault being a lesser to murder, since the assault definitely made the assailant a suspect and showed motive (anger over an argument) and witnesses might have thought the assailant was armed. Or would the assault and murder be separate events if they happened in two different locations? And then you have assault and murder as separate but related charges.
Here both poisoning and cutting car brake lines would be considered battery (among other things). The case law states that the injuries to the people would have been intentionally caused by the defendant.
IOW, the defendant set in motion a chain of events reasonably likely to proximately cause the harmful contact with the poison or the brick wall. Pulling a chair out from underneath someone as they are about to sit is a hornbook battery example without actual physical contact.
Don’t you all up north follow the same olde English common law that we do in the States?