In the Zimmerman case, the jury has been given the option of finding him guilty of manslaughter, which is a lesser charge than 2nd-degree murder. Has there ever been a case in which the jury had the option of a greater charge than the original one?
You can’t do that. You can be charged with crime A, and found guilty of lesser included crime B. Not the other way around.
No, not in any western system of which I am aware. That stems from the onus of proof, and the obligation of the prosecution to bring charges that the defence knows it has to meet. If you were charged with, say, culpable driving causing death, and notwithstanding the prosecution’s choice of charge, a jury could convict you of murder, then every case would have to be fought as though it were a murder, potentially involving the defence leading evidence to disprove elements like intent, even if not charged, just to avoid a murder conviction.
The prosecution brings charges it thinks can be proved, but some charges contain lesser, included offences that emerge from the definition of the elements of the greater charge as you observe. If even the prosecution doesn’t think it can prove murder, how could the jury safely find murder? Remember, convicting of a lesser included offence means essentially deleting one or more express elements of the greater. But working in the other direction, there are no express elements identified that the jury might consider. How could the defence know if the jury was thinking about intentional murder? Or felony murder?
Shortly put, the charges place the upper bound on what the jury can find.
Nope.
The trial starts with a set of charges. These can be brought several ways: basically by the prosecutor directly through an “information” or “bill of particulars” or some other name, or via a grand jury indictment.
Among those charges might be other lesser charges, not included explicitly but automatic because of their list of elements. Other lesser-included charges might be fact-dependent, existing not automatically but only if the jury accepts certain facts during the trial.
As the trial progresses, evidence may be adduced that would support those charges.
When the evidence concludes, the judge has to decide on which offenses the jury will be instructed. This is a balancing act… the prosecution may resist the inclusion of a lesser-included offense if they feel their case on the top count was strong, and fear the inclusion of a lesser charge might encourage a compromise verdict. The defense’s calculus is the reverse: if they feel the jury was sympathetic to the prosecution’s theory of the case, they will push for a lesser-included offense.
The defense can also object to the inclusion of lesser-included offenses added after the evidence is in. They can say the particular LIO wasn’t supported by the facts adduced at trial, or they can say their defense was predicated on defending only the charged count all along. For example, if the defense readily acknowledged the killing in a first degree murder case, but spent all their time arguing no premeditation, they might object to the sudden switch to second-degree murder, noting that their entire strategy was premised on defending only first-degree. That strategy may work, or the judge could point out that in fact the defense spent time vigorously disputing ALL the elements of first-degree murder, and their case wouldn’t have been conducted differently even if second had been also charged from the beginning.
In the end, the judge weighs every argument and exercises his discretion to charge the jury. But a judge that allowed a greater charge would be abusing that discretion by saddling the defense with a charge they never planned on defending.
Follow up question. The jury tells the prosecutor, “Hey, we would have gone with a more serious charge.”
Could the prosecutor then have a 2nd trial, for the more serious charge? After all, since the defendant wasn’t found innocent, there isn’t double jeopardy, right?
Jeopardy doesn’t mean “conviction.” Jeopardy attaches when the jury is impaneled and sworn.
In addition to what Bricker said, a govt. can NOT instruct a jury to convict on a greater charge, as Due Process and the right to a Fair Trial would be violated.
If they found a person guilty of a charge on thier own, in violation of a Jury Instruction or law, the conviction would be thrown out, period.
Florida Rules of Crminal Procedure;
RULE 3.510. DETERMINATION OF ATTEMPTS AND LESSER INCLUDED OFFENSES
On an indictment or information on which the defendant is to be tried for any offense the jury may convict the defendant of:
(a) an attempt to commit the offense if such attempt is an offense and is supported by the evidence. The judge shall not instruct the jury if there is no evidence to support the attempt and the only evidence proves a completed offense; or
(b) any offense that as a matter of law is a necessarily included offense or a lesser included offense of the offense charged in the indictment or
July 10, 2013 Florida Rules of Criminal Procedure 172 information and is supported by the evidence. The judge shall not instruct on any lesser included offense as to which there is no evidence.
Here is some case law for Ohio, for a general overview.
http://opd.ohio.gov/RC_Casebook/lesser_included_offenses.htm
No.
The Double Jeopardy Clause protects against three acts: successive prosecution for the same offense following an acquittal; successive prosecution for the same offense following a conviction; and multiple punishments for the same offense.
Two offenses are different, for double jeopardy purposes, if each contains an element that the other does not.
One interesting exception, as I understand it, is that if a person is convicted and successfully appeals his conviction it can open the possibility that he can be retried for the same crime in some circumstances. His appeal is essentially held to be a waiver of his double jeopardy protection.
The only thing even close to this is that a Grand Jury can indict on other not included offenses that it finds probable cause for even if there had not been a complaint signed for those charges.
Correct, although it’s not really an exception: successive prosecution for the same offense following a conviction is one of the protections. An appeal asks the reviewing court to overturn the conviction, to find that the conviction was unsound. If successful, it means there WAS no conviction, so no Double Jeopardy protection is present.
There is an exception to that non-exception: an appeal based on legal insufficiency of the evidence. If that type of appeal is successful, it means that the appeals court has found the case against the appellant was legally insufficient to begin with, that as a matter of law, he should have been acquitted. If that happens, then he’s free to go and cannot be retried, because a retrial would be a subsequent prosecution after an acquittal.