So now you’re a lawyer, but you’re not proud of it. Well, the logic skills you’ve displayed would lead one to conclude you can’t be a very good lawyer, so perhaps your lack of pride is justified.
I am beginning to see what people mean about your thinking skills. Regardless of the user name, I assume Human Action is human because he/she is posting on this message board. Being human isn’t required, but it seems a safe assumption. I assume Chefguy is a chef until he states otherwise, and some of his posts are directly related to being a chef and support my assumption. The user name pchaos conveys nothing to me about being a lawyer. If you don’t want people to think of you as a lawyer, don’t mention it anymore.
To a certain extent it was…but I brought it out in a very self-deprecating manner. It still didn’t work. I’m sure that a lot of attorneys post on SDMB but they haven’t been dumb enough to admit it.
Find the post in that thread where I explained Blockberger v. US. The test for whether two crimes are different for double jeopardy purposes is if each includes an element that the other does not.
In your example, we don’t have that. Offense X includes an element that Offense Y does not, BUT Offense Y does not include an element that X does not.
So they’re not different offenses – Y is a “lesser-included offense” of X.
So, during the same trial, the state could charge both X and Y, and the jury could respond by:
[ul]
[li]Acquitting on both X and Y[/li][li]Convicting on both X and Y[/li][li]Acquitting on X and convicting on Y[/li][li]Acquitting on Y and convicting on X[/li][li]Hanging on X and convicting on Y[/li][li]Hanging on X and acquitting on Y[/li][li]Hanging on Y and convicting on X[/li][li]Hanging on Y and acquitting on X[/li][/ul]
Each of these scenarios has it’s own analysis.
Acquitting on both X and Y
The accused goes completely free, and the state is barred from retrying him on either X or Y.
Convicting on both X and Y
The two offenses are the same for the purposes of Double Jeopardy, so they merge into one offense for sentencing purposes. The state is barred from retrying him again on X or Y in the future.
Acquitting on X and convicting on Y
This is a consistent jury verdict. That is, the jury pretty obviously found elements B and C proven beyond a reasonable doubt, and did not find element A proved beyond a reasonable doubt. The accused is sentenced for Y, and the state is barred from retrying him on X or Y again in the future.
Acquitting on Y and convicting on X
This is an inconsistent jury verdict. To convict on X, the jury must have found elements A, B, and C beyond a reasonable doubt… so how could they also acquit on Y? To determine what would happen here, we’d have to have more fact detail, to determine if the inconsistent verdict is logically inconsistent or legally inconsistent, and we’d have to know what jurisdiction we were in. Federal courts and most state courts will let inconsistent verdicts stand, reasoning that they may result for factors such as jury leniency. So in the majority of cases, federal and state, the result will be that the accused will be sentenced for Y, and the state is barred from retrying on X or Y. The seminal case for the federal system is US v. Dunn. If you’re interested in a further explanation of those states which address the differences between logical inconsistency and legal inconsistency, let me know…we’ll have to delve into collateral estoppel and the mysteries of Ashe v. Swenson, but I’m game if you are.
Hanging on X and convicting on Y
Also treated as an inconsistent verdict. The accused will be sentenced on Y; the state cannot retry on X or Y.
Hanging on X and acquitting on Y
Perfectly consistent. The jury disbelieved element A, and acquitted on offense Y. They could not reach a verdict on lesser-included offense X. The accused may be retried only on X, because the Double Jeopardy Clause does not bar a retrial after a hung jury.
Hanging on Y and convicting on X
This also varies by state. The prosecution may have the option of retrying on Y or accepting the X guilty verdict.
Hanging on Y and acquitting on X.
An acquittal on X means either A, B, or C was not proved beyond a reasonable doubt. Collateral estoppel may stop the prosecution from retrying count Y; it depends on an analysis of the facts of the case and the theory of the case presented to the jury. Again, Ashe v. Swenson is the seminal case.
Similar calculations come into play when assessing a trial for just one offense followed by a trial for the other offense. The Double Jeopardy Clause generally prevents a subsequent prosecution for the same offense following a conviction, or following an acquittal. Since these are “the same offense” for DJ purposes, most instances of a trial for X following a trial for Y would be prohibited, or vice-versa – assuming the first trial ended with either a conviction or an acquittal.
Hope this helps!
You my good man, have no soul.
To some degree I agree. I don’t like hanging around attorneys much either. They just talk shop too much…it’s always the latest in what the CA Supreme Court is doing…or they want to talk about the latest Obamacare regulations…whatever.
Even worse, is the one upmanship, the I bought a second vacation home…so when are you going to get yours type inquiry.
I like hanging out at my local church where people really know me…and forgive me for being an attorney…lol.
Off the top of my head, Bricker, Hamlet, jtgain (although he may still be in law school). Also, there’s someone whose handle starts with a G. Possibly also RNATB. There’s lawbuff, but he’s not a lawyer. Kimmysomething is one.
I don’t know why I’m feeding you, though. I just can’t resist, I guess.
ETA: KimmyGibbler
Eh, it was worth admitting it for the Benson joke. Possibly the best zinger in the history of debates.
GFactor.
And there’s pravnik, who was here as a poster, went through law school, and is now in practice – he grew up into a lawyer on these very boards!!
BottledBlondeJeanie is a former prosecutor.
Oakminster does family law and is/was a magistrate.
Who the fuck are you responding to with this post?
Oakminster and BrainGlutton are also lawyers, I believe.
Not me, until September 2014 (hopefully). jtgain is in the same boat but I think he is taking the bar exam this month.
In addition to those Bricker named, there’s BrainGlutton, who I believe has retired from the practice of law; Elendil’s Heir, who is a magistrate in Ohio; and friedo (I think). And Ascenray, who does administrative law in the DC area. And Drain Bead and Hello Again.
Right! Gfactor. I had forgotten about Oakminster and BrainGlutton. I didn’t know about pravnik or the other ones.
Me, I’d never claim to be a scum sucking lawyer. But I am a scum-sucking geophysicist working mostly for the oil/gas business. I should probably see a doctor about all the scum I’m sucking.
“Woe is me, people don’t like me because I’m a lawyer.”
No, dumbass, people don’t like you because you’re dumb. The tired US Protestant “persecution” complex is one of the most ridiculous things I’ve ever experienced.
Like I said I’m not here to proselytize. In many of the threads, I was just trying to find out what atheists believed. What I found out is that the basic attitude is okay. In other words you need to be skeptical and scientific in your approach to life, but it is not the type of life I would want for myself.
Sometimes I would rather just act based on informed intuition and faith. None of us are going to get out of this alive. But while I’m alive I want to give a 100% and sometimes that means you need to act based on courage and faith.
He’s not, for what it’s worth. He just mentioned it yesterday.
I’m taking the opposite route with you.
I won’t believe you’re a Labrador or a Deceiver until you provide evidence to the contrary.
Me, well I like to think I’m Great, but I’m not particularly against Bobs in general.
Lying troll trolls and lies. Nothing new.
You’re 100% correct, my good man.
I’m actually a very honest German Shepherd.
You might be able to get him with the “Labrador” part, but he is either telling the truth about being a “Deceiver”, or he’s lying about being a “Deceiver”… in which case he’s still telling the truth about being a “Deceiver”.