CRIMINAL LAW AND PROCEDURE

Which amendment to the Constitution prohibits double jeopardy?

Can someone be convicted for multiple crimes for one act?

How can a person be charged with multiple crimes through the legal concept of “lesser included offenses”?

How do lesser included offenses not violate double jeopardy protection?

Focus upon the material elements of crimes and how they can vary to allow for multiple prosecutions for the same acts or similar offenses. Provide examples to support your answer.

THIS ASSIGNMENT ABOVE IS COMPLETE YOUR NEXT ASSIGNMENT IS TO…

Respond to at least two of your classmates’ posts… 200 WORDS EACH….TWO RESPONSES…EQUALS 400 WORDS TOTAL….

WHILE RESPONDING TO THE STUDENT’S FEEDBACK YOU MUST ANSWER THE FOLLOWING QUESTIONS…

Fairness should be considered in any criminal law or procedure issue. Provide analyses of your classmates’ postings with an emphasis on whether or not it seems fair to the defendant to have to defend against crimes presented in multiple forums.

Can we assume that it is fair to the State to prosecute in multiple jurisdictions (where the State has large amounts of resources for such actions)?

Remember; do not merely agree with your classmates without additional information. A substantive response advances the discussion in a meaningful way; merely agreeing with your classmates is not a substantive response….

First Response from Kimberly Linker

As it has been decided many years ago with the signing or initiation of Constitution where double jeopardy has been distinguished in its fifth amendment or clause elements that protect the defendant. It reads in part saying, no crime be it a capital one or one of infamy where a person has to answer such be deprived or life, liberty or property unless due process has been established. There are other circumstances surrounding this amendment as in self incrimination and a few other standards beneficial for the accused.

Within the fifth amendment there is a clause that states, "the protection from double jeopardy also prevents a court from sentencing a defendant to multiple punishments for the same crime." (Wright, 2013) Be it as it may, even with the finding or introduction of new evidence there is no legal grounds for retrying a defendant in a court of law.

The aspect of a lesser included offense does not carry as much time where sentencing is concerned and the verdict of a jury on specific counts or charges where the higher charge for instance may be selling or distributing narcotics where the lesser may be intent to sell or, possession. "A person cannot be convicted of a crime and its lesser included offense for the same action." (Wright, 2013) Here, the lesser included offense does not violate double jeopardy based on where "the courts zigzagged through various tests.20 Lesser included offense doctrine eventually became a confusing "Hydra" analysis involving issues of double jeopardy, double punishment, sua sponte instructions, duplicity, and multiplicity." (Felicetti, 2011)

Lastly, lesser included offenses do not violate double jeopardy if a different offense is committed during a single crime in other words, "It is, however, possibleand commonfor multiple crimes to be committed during the same criminal episode. Criminal events often feature separate actions that constitute separate crimes and not lesser included offenses." (Wright, 2013)

References:

Felicetti, G. E. (2011). Surviving the Multiplicity/LIO family Vortex1. The Army Lawyer, , 46-56. Retrieved from http://search.proquest.com/docview/869070704?accountid=32521

Wright, R. (2013). Introduction to criminal law and procedure. San Diego, CA: Bridgepoint Education, Inc.

Second Response from Michael Ellis

Which amendment to the Constitution prohibits double jeopardy?

The Fifth Amendment to the U.S. Constitution is a very specific c and powerful group of words. The amendment protects us against both self-incrimination as well as the right to be tried twice for the same crime. Specifically the double jeopardy clause states “Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb in criminal or civil cases”. Our textbook give a case study of Mel Ignatow, who was a man tried and acquitted of rape and murder in 1991 in Kentucky. During the investigation a former lover cooperated with authorities in exchange for immunity, she lead them to the body of the victim. No solid evidence could be found linking Ignatow to the murder which he was subsequently acquitted of. 6 months after the trial evidence was found in the suspect’s home, rolls of un-developed film linking Ignatow to the murder. The film documented each moment of the rape and murder of the victim by Mr. Ignatow; however the suspect had already been acquitted of the murder and under the double jeopardy clause of the Fifth Amendment couldn’t be tried again. Mr. Ignatow was convicted of perjury for providing false testimony which he served five years for (Washburn N.D.)

Can someone be convicted for multiple crimes for one act?

If by the commission of a crime multiple crimes are also committed but are lesser and not included by definition of different elements than yes an offender can be charged and convicted of multiple crimes. For example most people have heard of a bank robbery on either the news or seen one portrayed in a movie. If those individuals use guns and force people to stay in the bank during the robbery than multiple cries such as; brandishing of a weapon in a threaten or harmful manner, use of a fire arm during the commission of a crime, robbery, wrongful detention, among a plethora of other state and federal codes all during a robbery. This also comes into play if the offense or act involves multiple victims since each crime against each person is a separate charge (Wright 2013). In the example of the bank robbery if ten people were present then ten charges of unlawful detention would be filed.

How can a person be charged with multiple crimes through the legal concept of “lesser included offenses”?

Many things are involved in preparation of criminal charges, time, date, state of mind, among other circumstance. Time and location are very important, for example if an individual hits one person with a bat the victim runs away and then is approached by the offender two minutes later at which time he hits him again bare fisted the offender can be charge with both felony assault as well as simple assault due the fact that the two incidents even the simple assault which is the lesser included crime happened at a different time and place however was a part of the same incident.

How do lesser included offenses not violate double jeopardy protection?

According to legal precedent if during the commission of a crime elements of a less serious crime are also met that crime is referred to as a lesser included crime (Wright 2013). For a simple example we will talk about a bar room fight in which one man picks up a glass bottle and hits another man. The offender has committed a felony assault by using a weapon, however still met all the elements of simple assault. With this same example in mind the double jeopardy clause prevents us from being charged with the same crime twice, due to the fact that simple assault is lesser and therefore included its considered the same offense.