I'm looking for the rule of law in a criminal case when the State increases its own burden..

Maybe I’m remembering wrong, but IIRC there is a tenet of law that once the state bites off a larger piece of the pie than they needed to, they are stuck with it.

Suppose that in your jurisdiction, the elements of burglary are:

  1. entry of a dwelling during the nighttime;
  2. with the intent of committing a felony or larceny therein.

John Smith is on trial for burglary, but the State for some reason gets an indictment, proposes (and is granted) a jury instruction which reads to the effect that in order to find John Smith guilty of burglary, you must find that:

  1. John Smith
  2. on January 11, 1997 between the hours of 12am and 2am
  3. in this County and State
  4. did enter the dwelling house of Ann Smith
  5. with the intent to commit a felony: to wit, kidnapping, therein.

The State has make a tactical mistake of limiting the jury to 12am and 2am. Suppose the uncontroverted evidence shows that it was actually 4:15am but the jury convicts anyways.

Isn’t there some general legal rule (not really specific to any state) that requires the State to prove beyond a reasonable doubt that it occurred between 12am and 2am? Or am I off base.

**I realize that typos can usually be amended. Say the State put January 21, when it and everyone else knew they meant January 11. That can be corrected. I am talking about a fact that it affirmatively alleges.

From the Canadian perspective, that isn’t the case. It used to be at common law, but Parliament has given the Courts the power to amend an indictment, to bring the charge into accord with the evidence.

So in your case, if the Crown charged between midnight and 2 am and the evidence discloses all the required elements of the charge, only at 4 am, the Crown can apply to amend the information. Unless the defence can show prejudice, the amendment will likely be granted.

Timely question. Nope.

But in that case, the erroneous jury objection added an element to the offence.

Ultra Vires’s example is that the prosecutor has limited the facts alleged to be a crime, not that added an improper element to the crime, so I’m not sure that case answers his question.

Well, I think it’s fair to say that whatever comes after “In order to find John Smith guilty…” are the elements of the crime for the purposes of that trial.

Between 12 and 2 isn’t an element of the actual crime, but it’s an element of the crime the jury was instructed upon.

No, they’re the facts alleged, not the element of the crime.

The elements of the crime are set by the legislature, not by the judge.

The prosecutor can restrict the scope of the facts they intend to prove, but that does not affect the elements of the crime.

Thanks to all for the answers so far. Let’s say, though, that the Crown did not amend the indictment and the case went to the jury as I proposed. Could the defendant win a directed verdict post-trial and/or have an appellate court rule that the evidence was insufficient to support the verdict because of the time element?

When the court instructs the jury on the elements of a crime, what they do is say “Defendant is charged with X. X means bla bla bla. In order to find Defendant was guilty of X, you must find element 1, element 2, element 3, etc.”

Like so, for instance:


That’s the instruction we’re talking about here. Insert a #3 in there and you’ve added an element. There’s no other interpretation of “you must find” other than that it’s an element of the offense. Otherwise, you know, why must you.

Not in our system. The time to apply for a directed verdict of acquittal is the close of the Crown’s case, before leading any defence evidence. I’ve never been in that situation, but I would assume that if the defence stood up and applied on that basis, the Crown would immediately move to amend, using the provision I mentioned.

If that didn’t happen, and there was a jury verdict of guilty, I doubt that this kind of defence would be acceptable on appeal. I think the Crown would still have the power to move to amend, plus our appellate law gives the appellate courts the power to dismiss an appeal if the alleged error was not of sufficient weight. If the Crown still has the power to move to amend on appeal, then I think that would result in the Court dismissing the accused’s appeal. But, as I said, I’ve never been in this situation, so I’m just speculating.

I guess the bottom line is that things like the amending power are in our Criminal Code to avoid cases being decided primarily on procedural irregularities, rather than the substance of the evidence, so I think the Court of Appeal would generally not be sympathetic.

I think you are talking about double jeopardy and lesser included offences.

From the link :

A lesser included offense shares some, but not all, of the elements of a greater criminal offense. Therefore, the greater offense cannot be committed without also committing the lesser offense. For example, Manslaughter is a lesser included offense of murder, assault is a lesser included offense of rape, and unlawful entry is a lesser included offense of Burglary.

So, if someone is tried for Buglary and acquitted, they cannot later be charged with unlawful entry for the same incident. Even if all the elements of unlawful entry can be proved, no prosecution can be brought.

Maybe they should have tried him for unlawful entry to begin with, but they didn’t, and they are stuck with the results.

No, it’s not double jeopardy or lesser included offences. Ultra Vires is talking about an old principle of common law pleadings in criminal matters: if the evidence led by the Crown did not precisely match the allegation in the information or indictment, then the accused was entitled to an acquittal, even if the evidence led by the Crown met all the elements of the offence.

It dates back to the time when all felonies carried a death sentence (eg - stealing something worth £5 or more was a capital offence). The courts would strictly construe the information/indictment against the Crown. If the Crown did not strictly prove the allegation, an acquittal would result.

It was the epitome of “getting off on a technicality.” The Crown had led evidence that proved all elements of the offence, but because the Crown drafted the information/indictment more narrowly than the theoretical scope of the offence, the accused would be acquitted.

That’s got nothing to do with lesser includeds. Ultra Vires’s example is based on the offence of burglary, not any lesser included offences, and not about the prosecution trying a second time.

I’m afraid I don’t know what to call this type of pleadings technicality, Ultra Vires. I just remember it coming up in our Crim Pro class as an example of the rigidity of the common law of pleadings.

My sense is that it’s a cognizable Due Process issue…if the accused relies on the indictment to his detriment.

In other words, if, even though the crime of burglary merely requires nighttime, the information alleges “between midnight and 2 AM,” and if the defense theory is that the accused was in jail on an unrelated offense and was not released until 4 AM, then I suppose the defense could object to permitting the information to be amended – the defense theory was predicated on the original information.

But if the defense theory is that the accused was nowhere near the scene of the crime all night, then amending the information doesn’t prejudice the defense.

I agree with that point, Bricker, but in our system we wouldn’t approach it as a due process issue, but rather by asking if the amendment should be granted under the Code provision relating to amendments, which takes due process concerns into account.

The relevant provision is s 601 of the Criminal Code:

So in your example, the accused would argue against the amendment, on the basis that to grant it would be contrary to 601(4)(d) and (e).