The doctrine seems to be that, should I be acquitted of Murder, I cannot then be tried for any LIO of Murder - Homicide, Manslaughter, whatever.
I hope this is because the original jury (let’s exclude bench trails for the moment) was made intimately aware of ALL of the LIO’s to Murder, and that their refusal to convict implicitly meant "we find him innocent of Murder, Homicide, Manslaughter, and every other possible LIO.
Is this correct - because otherwise, the LIO rule seems exactly backward - if the prosecution can’t prove premeditation, thus defeating the Murder charge (make up something that IS a correct defect for Murder), should the defendant walk on a charge which does NOT require that element to be proved?
Why would the defendant walk, if the jury can convict him of a lesser included offense anyway? If the state can’t prove premeditation, but proves all the elements of Murder 2 (or whatever) then the jury generally has that option available.
That’s my Q: CAN the jury convict of LIO, and do they know they can?
The Q of the complexity of some of the issues (esp. Murder) would seem to require that jurors almost be lawyers to understand which crime can apply to what circumstance.
I wanted to avoid Bench trials, because the Judge would certainly know the fine points of Bricker’s Mopery v Dopery, as well as Murder and its variants.
Yes and yes, and they frequently do. Part of the judge’s job is to provide clear jury instructions regarding the elements of every charge and LIO that they must consider. The jury can ask the judge questions about the instructions if they desire, though judges tend to avoid providing very specific answers lest they appear to influence the jury.
Going to have to sit on some juicy trial just to hear the instructions - some of those have got to be convoluted.
Or can a Judge simply refer to law and come up with bullet-proof instructions for each possible crime? Is it a matter of finding the right section of law and simply reciting it?
This is partly from law school and partly from some googling to refresh my memory. In the vast majority of states (all but Texas and West Virginia), there are model jury instructions for specific crimes that can be read to the jury with no or minimal changes. Sometimes, I believe the judge will hear what both the defense and prosecution attorneys have to say about how the jury instructions should be formatted, and take that into account when drafting new instructions or modifying previously-used ones. It’s not uncommon for the losing party in a criminal case to argue on appeal that the jury was improperly instructed and thus didn’t understand the law well enough to reach the proper conclusion.
So no - the instructions are neither bullet-proof nor simply a matter of reciting the relevant statutes or cases that make up the law. They are someone’s best effort to distill all the complexity of the relevant law into a few paragraphs that the average juror can understand…not an easy nor always a completely successful task.
I’m too lazy to check, but doesn’t the prosecution have the option to force the jury to choose between murder and acquittal? Isn’t this sometimes done for strategic reasons so as to make a conviction for murder more likely? I think the logic is that if the prosecution believes the jury might be on the fence for a murder conviction, giving them the choice of a lesser included offense means that the defendant could get a lighter sentence so they decide to gamble and force them to go for all or nothing.
That was my understanding from reading about various crimes, that the LIO options were up to the prosecution. Quite often they offer no alternative, to force the jury to find for the worst crime. Of course, the jury is (AFAIK) forbidden to know the sentence ranges or guidelines as part of the presentations, so the prosecution avoids the possible backlash of “we’re not going to convict him of THAT if it means 10 years in jail.”
I thought it was the other way around - if you are acquitted of Assault, they can’t come back and retry you for Murder. If you are acquitted of Assault OR Theft, they can’t come back and try you for Robbery because Robbery includes LIO’s of Theft and Assault. Also, I thought if you were convicted of an LIO, they can’t come after you later for a larger offense. E.g. if you stabbed someone with a knife in a fight, were arrested, and offered to plead guilty to a misdemeanor assault to get the matter closed at the least cost to the prosecution, the prosecutor and judge accept the plea and enter final judgment, and then a week later the victim dies of his wounds, you can no longer be convicted of murder because you were already convicted of a LIO which carried an implicit acquittal of all the offenses that include it (murder, robbery, rape, aggravated assault, assault with a deadly weapon, etc.).
I don’t recall how these apply to criminal cases but in addition to double jeopardy, there are also legal doctrines like res judicata and collateral estoppel that work to oppose the relitigation of matters already decided.
I do know the federal constitution’s Double Jeopardy clause does NOT forbid trying a person for murder, and being aquitted, then charging him with “Conspiracy” to commit murder, if the facts arise.
Of course, given our marvellous justice systems (oth north and south of the 49th parallel) by the time a trial is finished and a verdict rendered, it’s probably a year or two later.
Isn’t there some principle that says that you must charge a person in a timely manner? You can’t wait until 2 years later to charge someone, unless new evidence arises to justify the delay. I doubt that “he’s not guilty” is valid “new evidence”.
Conspiracy requires proof of planning between two or more parties, IIRC. It’s a different charge than murder.
That’s not the case in Canada. The Crown does not have that authority. It is the responsibility of the trial judge to advise the jury of all possible lesser included offences, and the jury is required to consider them, starting from the most serious and down to the least serious. If the jury decides on conviction on one of the more serious ones, they can’t convict on any of the less serious ones. And, once they give a verdict of acquittal, it covers the main charge and the lesser ones, unless they specifically address the lesser ones. That verdict bars the Crown from pursuing one of the lesser charges.
Speaking solely as someone who has served on a number of juries, at least in California, the jury is not only given explicit instructions about the charges and possible verdicts, but is also given a jury verdict form that lists the specific issues that the jury must resolve. If you scroll down at this link, you can see a form for differentiating first and second degree murder. We also had a question about the weapon used, since that was an aggravating factor in the charge (an extremely large, bloody knife got passed around to the jury inside a protective evidence bag).
Then I assume it is the judge who decides if the circumstance could even fit the definition of lesser crimes?
I.e. In the case of Robert Latimer, who put his severely imparied daughter in a truck, and fed the exhast into it; the jury was not given a choice of lesser charges other than first degree murder. I assume the judge in this case determined that the actions could not be construed as “un-premeditated”, nor could it be “manslaughter” as in “I didn’t mean for the action to cause death”.
But then, if the charge is say “armed robbery” then there’s a whole spectrum of crimes all the way down to “petty theft”. At a certain point, there must be a stopping point? If the evidence mentions a thousand-dollar wacth was taken at gunpoint, then “theft under $200” is not allowed?
Well…you are correct that an acquitted defendant cannot be retried for a lesser included offense of the original charge, but juries do not find defendants “innocent”. Juries find people “not guilty”, meaning that the prosecution has failed to prove guilt beyond a reasonable doubt.