Sometimes you’ll read where a person is arrested for “gun possession by a felon, failure to report for parole, having a dirty windshield, and driving a getaway car in a bank heist”
Then he is tried just for the last item.
A hung jury can’t decide whether he was driving or (literally) riding shotgun, so he gets off.
What happened to the other charges?
Well, I can’t say that I’ve ever read that particular list of offenses, but I get your point.
I’m not a lawyer, but I think this is the deal: You’ll get arrested for whatever the police think is applicable. (They’re not lawyers, either.) The appropriate prosecutor will prosecute you for whatever laws s/he thinks 1) you broke and 2) will result in a conviction. There’s really no connection between the two events.
Then, of course, you may be convicted of some charges and acquited of others, depending on the evidence and the skill of the the attorneys.
Anyway, I think there are three points in the decision tree: the arrest (the cops), the indictment (the prosecutor) and the trial (the judge/jury). Nothing can be added through the process, barring new information, but anything can be culled depending on facts, law, or somebody’s mood.
Any legal beagles care to correct any glaring flaws?
Bassguy’s got it generally right.
The police have some legal training, but they’re not lawyers. They charge what they think is appropriate. When the Crown prosecutor gets the file, he/she reviews it and may change the charges. If the facts don’t support some of the charges, they get dropped. However, if the facts may support some other charge, it’s open to the Crown to ask the police to lay a new information, including that charge.
Charges can also be added following the preliminary inquiry, if the evidence led at the prelim is sufficient to support additional charges that the police weren’t aware of at the time they laid the information. The Crown prosecutor can add those charges to the indictment.
There’s also a question of the appropriate use of prosecutorial discretion. Not every charge is worth prosecuting. If a gung-ho cop charges the accused with everything under the sun, and the Crown tries to take everything to trial, they’re running the risk that the Court may find that they’ve abused the court’s process, and stay some of the charges.
Multiple charges also provide the prosecution and defense a lots of material for negotiation before a trial.
Remember, trials are expensive and time consuming for both sides. A misdemeanor DWI trial typically lasts three days.
Often, the prosecutor will offer to drop an Assault charge for example, if the defendant pleas guilty to a Disorderly Conduct or whatever else they might feel is appropriate.
Mrs. Tonk does this every day.
She pleads guilty to Disorderly Conduct every day?! Now that’s my kind of woman! You’re a lucky one, Honk…
As a related point, the prosecutors are not averse to piling on charges in some cases. There is the famous case of some of the states passing new laws for marijuana tax stamps. Obviously no dope dealer is going to go to the tax offices and purchase tax stamps, that would be signing up for the police to come visit. But whenever someone was busted for pot posession, they added the new charge of tax evasion. Obviously the law was a clear attempt to add more penalties for the same crime. The courts eventually struck it down for that exact reason, it was double jeopardy. Since the state knew nobody would “legitimately” purchase the stamps, the stamps’ sole purpose was additional prosecution.
wow. they’re usually a half day up here.
There are two kinds of “secondary” crimes.
The concept of a “lesser-included offense” is important here. If I point a gun at you with the intention of killing you, and fire, and you die, it’s murder. But let’s face it - it’s also assault with a deadly weapon, simple assault, and maybe even “discharging a firearm in the city limits.”
The question is - does the greater offense include the lesser for purposes of double jeopardy analysis?
The seminal case on this issue is Blockberger, which gives us the “same elements” test - if the state must prove all of the elements of the lesser offense, plus more, to prove the greater offense, then the crimes are the same for the purposes of double jeopardy, and an acquittal on the greater offense also serves as a bar to re-trial on any uncharged lesser offenses.
Either side may ask that the lesser-included offenses be included at trial. The prosecution may choose to indict for first degree murder, second degree murder, and manslaughter. Or they may choose to only submit a charge of first degree murder to the jury, reasoning that they want an all-or-nothing verdict from the jury.
The defense may request an instruction on any lesser-included offense for which evidence exists to support the lesser charge. In other words, if the defense’s theory of the case is that the wrong man was charged, and the defedant is completely innocent, they couldn’t ask for a manslaughter charge. But if they present evidence that the shooting was an accident, they’re entitled to get the jury to consider manslaughter as an option.
I take it goes the other way? If someone is acquitted of a lesser charge, they can’t be charged with a greater one?
In cases of multiple murder, I’ve seen the prosecutors bring only one count to trial (the one with the best evidence). The idea being that if the defendant is acquited, he/she can be retried for any of the other crimes, or when more evidence becomes available. It’s a way to ensure that somehow, the perp will end up behind bars.
Exactly correct - unless the jury returns both verdicts during the same trial. Verdicts may be inconsistent - that is, the jury might think they were saying yes to the murder and no to the manslaughter. If the jury finds guilty on two lesser-included offenses, they merge into one for conviction and sentencing purposes. If the jury finds guilty on the greater and aquits on the lesser, the conviction on the greater stands.
But if someone is aquitted on a lesser charge, he may not be tried again on a greater-included charge, assuming the same facts would be necessary to prove the crime.
Bricker, in the US system, does the judge have any say in the lesser offences going to the jury? I’m not a trial lawyer, but the idea of the prosecutor saying “we’re only going with first degree,” and that binds the Court, strikes me as odd.
Here, the case goes to the jury, and the judge generally instructs on lesser includeds, regadrless of whether either side asks for it. The approach is that it is the Court which decides if there is sufficient evidence to support charging the jury; the Crown and the accused can’t play tactical games, as it’s the court’s job to ensure that the jury considers all of the possible issues that are raised by the evidence.
Sorry for resurrecting an old thread, but in answering this thread, I discovered that someone had asked me a question which I completely ignored. I apologize – somehow I missed it!
The judge must approve, and deliver, the instructions to the jury. Accordingly, any lesser-included offenses requested by the defense must be approved by the judge, and will be charged to the jury only if some evidence from the trial supports the theory. For example, if the accused is charged with armed robbery, then simple robbery is technically a lesser-included offense. If the accused claims he was there but unarmed, and never robbed the guy, the defense is entitled to an instruction on the lesser-included offense of simple robbery. If the guy’s defense, on the other hand, was that it’s mistaken identity; he was never there at all, he cannot ask for an instruction on simple robbery.
On the prosecution side, they too are entitled to have the jury consider all lesser-included charges specified in the indictment or that are supported by the evidence. The judge may not, sua sponte, ask a jury to consider a lesser-included offense that neither the prosecution or defense requests. This does give rise, occasionally, to “tactical games” where the prosecution will dismiss the lesser-included offenses, afraif that if they don’t, the jury will cop out and nail a rapist for assault. By taking that option away, they force the jury to either convict on the top count of the indictment, or acquit.