Let’s say there’s been a string of murders or other major crimes where the evidence indicates pretty much conclusively that all were committed by the same perpetrator. And let’s also assume that the presumed perpetrator is brought to trial. Assume there have been a dozen muders.
My question: why doesn’t the prosecutor keep one or two murders (or sexual assaults or bank robberies or whatever) “in reserve” in case the presumed perp is found innocent on the other ten (especially if on a “technicality” or because of a naive jury or for some other reason that allows the person who (presumably) committed the crime to “get off”? That way, if the (presumed) perpetrator is acquitted, they can try him again using a different strategy or judge or locale, etc. I assume ‘Double Jeopardy’ doesn’t apply, so why is this practice not done?
Prosecutors routinely do this: If they catch a serial killer, they only charge him with the murders they can most easily prove. If he gets off, they can charge him with others (but will need to work harder to prove it).
Similarly, prosecutors routinely charge criminal with multiple charges (e.g., first degree murder, first degree manslaughter), so the juries might be willing to convict on the lesser charge.
Prosecutors need to make a strategic decision about how the jury will look at the case and the sentencing that the jury or judge imposes. Sometimes having a single extremely strong case is best. The trial is shorter; they jury is less confused; the defence has less chance to bring up holes in the weaker cases and create doubt. Sometimes emphasizing the wider harm done is more effective because it gives the jury more incentive to rid the streets of the perpetrator and impose a longer sentence or more consecutive ones.
Other considerations include: the time and staffing required for one large case as opposed to many smaller cases; the weakening of memories and loss of evidence as time goes by; the desire to declare a case closed by a conviction instead of leaving it legally open for years or forever; the effect that cleaning up an entire body of crimes will have on public opinion; and the priorities of the current prosecutors against future ones.
There may be some legal reasons that holding back deliberately makes for weaker cases but I’m sure our resident attorneys can handle that better.
RealityChuck is right. I’ve tried to find a cite to back that up, but my Google-fu is apparently lacking at the moment.
I have a vague recollection (read: “I’m dumb, so I’m probably wrong”) that this happened in the Henry Lee Lucas case. Lucas was thought to have committed dozens of murders, and confessed to killing hundreds of people. But he was eventually tried for “only” 11, albeit in 11 different trials. Thus, if any one of the prosecutions was unsuccessful, then he could have been tried on one of the other murders.
I apologize if this is more than you wanted, but there’s some nuance involved. Double jeopardy generally attaches to bar subsequent prosecution for the same acts. So the government is generally precluded from later trials for “lesser included acts,” like a trial for second degree murder after you’ve been acquitted for first degree murder of the same victim.
On the other hand, even if a defendant is acquitted of charges that he violated a state law, the federal government can still prosecute the defendant without violating double jeopardy. The most prominent recent example of this is the officers filmed beating Rodney King. They were acquitted of state charges, but some were later convicted and sentenced in a federal court of violating King’s civil rights. However, the federal government generally doesn’t prosecute criminals for crimes of which they’ve been acquitted in state court, unless the Attorney General finds that the case meets the requirements of the Petite policy.
I know that’s a lousy example but I can’t think of another one off the top of my head. I suppose had they not prosecuted for, say, the Ron Goldman murder, the family would have been more than distraught.
It just seems to me that the DA (or crown attorney in my country) don’t hold back a case or two; they prosecute all cases for which they have good evidence.
In the OJ case - of double jeopardy would apply. It arrises from the same set of fact. You couldn’t charge a 9-11 conspirator with one murder and then rety them 2900+ times every time he is acquitted. You can probably charge for each separate plane - or at least you could for PA, VA, and NY.
In a case of a serial killer - if it is separate evidence - you could try him separately (seperate trials) for each one. If the case is based solely on a confession - I’m not sure you could. Basically if a jury decides once to acquit on the states story - I don’t think you can retry. If there is a separate story each time - I think you can. Not sure exactly where dividing line is - but you couldn’t charge Adam Lanza (if he had lived) for each kid killed in a separate trial.
How could you possibly know this? I couldn’t tell you every possible crime anybody in my area is arrested for, and whether the evidence for it is good or bad. Unless you’re on the inside, you can’t know this for any case. If all you read about are the most sensational national cases, then your sample is fatally biased.
In the UK a person who is convicted can ask for ‘offences taken into consideration’ during sentencing. They can admit to other crimes to wipe the slate clean. Also there tends to be milder punishment for these admitted crimes. Often they get no more punishment then they would receive from the original convicted offense.
I’m not an expert on criminal law, nor on the Nicole Brown Simpson/Ron Goldman murders. However, I was tempted to disagree with you. In Blockburger v. US, 284 U.S. 299, 304 (1931), the US Supreme Court said, “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” So I was thinking that, if Brown-Simpson and Goldman were killed by more than one swing of an axe, and specific intent to kill each person is necessary to convict for murder, then the elements of each crime would be distinct, and he could be convicted for the murder of one and acquittal of the other without the two being inconsistent.
So I did a bit more research.
The closest case I could find was Ashe v. Swenson, 397 U.S. 436 (1970). In that case, the defendant was accused of robbing 7 people at a poker game. He was tried for robbing only one person, and acquitted. The State then tried him for robbing a second person at the same poker game, and he was convicted. The US Supreme Court held that the 2nd prosecution violated the Double Jeopardy clause.
So upon further review, I think I agree with you. (The moral – as always – is that I’m dumb.) If someone more knowledgeable than me wants to weigh in, I would appreciate it.
The rules about joinder of criminal charges are very complex and vary in detail across jurisdictions. Generally speaking, there has to be some nexus among the crimes being joined into one trial, so that you don’t join three murders, an unrelated bank robbery and a speeding offence, for example (questions of jurisdiction based on the varying levels of seriousness of those offences aside). Questions of prejudice to the accused person also arise in pretrial arguments about joinder and severance as well. There is much analysis at the granular level of the detail - it is not as simple as just saying “He is charged with 14 murders so we’ll lump them all together in one mega trial.” In my experience, about 4 homicides is the most one can expect a jury to keep track of in a trial without being overwhelmed by the detail.
And much depends on tactical considerations on the defence side, too. Suppose you are a teacher charged with the molestation of a number of children. You might want to argue that they all got their heads together to make up a story for some oblique reason, and it becomes difficult to do that if there is one trial per complainant. On the other hand, that strategy is fraught with the risk that the jury will be prejudiced by the multiplicity of complainants.
Often, the rule is that cases which can be joined should be joined, so that there is a risk that if you hold back charges for the tactical reason suggested by the OP, a later court will rule that trying him for offences that should have been joined is an abuse of process. There can be plenty of good reasons for not having one mega trial, of course, but just doing it for “insurance” isn’t generally considered one of them.
In an earlier version of my OP, I had posited that the number of crimes reported in the media or from other sources matched the number of cases tried simultaneously. That’s what I meant, and should stated, when I made the claim that they prosecute “all cases” with good evidence, and I was further assuming that the numbers matched in general.
The Picton serial killer is an example of the Crown only going ahead with the strongest case. He’s suspected of killing 49 women, but he’s only been charged with 26 of them. Of those, the Crown only proceeded to trial on 6, and got convictions on all of them, so he’s now in jail on 6 life sentences. The Crown has stayed the other 20 charges.
I presume that the Crown has only proceeded on those 6 charges because they were the strongest ones.
Getting back to the OP, there is a danger if the Crown is intentionally holding back charges “just in case.” Pre-charge delay can be a breach of s. 7 of the Charter of Rights. If the Crown has enough evidence to proceed on a charge, and intentionally does not lay the charge, the accused may be able to have the matter stayed as a breach of s. 7.
And, if the Crown does charge and then does nothing on some of the charges, they may be infringing the accused’s right to a trial within a reasonable time, guaranteed by s. 11 of the Charter. Again, that could result in a stay at the motion of the accused.
Yes, I am posting from Canada - Fordville (aka Toronto).
The prosecution of Picton, as you noted, is an example of selective prosecution based on the strength (or lack thereof) for each case.
To me, before this thread, it would have made sense if the Crown had strong evidence against Picton in some of the murders but nevertheless still opted not to proceed in all those cases in order to have another crack at him if he were acquitted. Your post clears up for me why they didn’t go that route. Thanks!
I looked up the Picton case in the British Columbia Court of Appeal in CANLii. Turned out that it wasn’t the Crown’s decision to proceed only with the 6 cases; they wanted to proceed with all 26 at once, but the trial judge separated the 6 cases from the other 20 and ruled that the 6 cases would proceed as a group.
Piction was convicted of second degree murder on the 6 cases, which carries a life sentence. The judge gave him a parole ineligibility of 25 years, which is the same sentence he would have got if he had been convicted of first degree murder.
Both Picton and the Crown appealed. Picton appealed his conviction and asked for a new trial. The Crown appealed the judge’s severance, arguing that it had prejudiced their case by not allowing them to proceed with the overwhelming evidence of 26 murders. The Crown conceded that if the Court of Appeal dismissed Picton’s appeal, there would be no practical effect to their appeal. However, they asked the Court of Appeal to rule on the severance issue, to clarify the law in this area.
On the Crown’s appeal, they unanimously agreed that the trial judge should not have severed the 26 charges, but stayed the effect of their ruling because of their decision to uphold the convictions: R. v. Picton, 2009 BCCA 300. This part of the decision clarified the law in this area, but did not warrant a re-trial, given the sentence Picton was serving on the second degree convictions.