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265.8 Lesser Included Offenses: Double Jeopardy Issues

    265.8.1 Lesser Included Offenses: Double Jeopardy Issues -- General Principles
    265.8.2 No Conviction Of Both Greater And Lesser Included Offenses
    265.8.3 Conviction Of Lesser Offense -- Impact On Greater Offense
    265.8.4 Double Jeopardy: Following Successful Appeal Based On Trial Error
    265.8.5 Double Jeopardy Bars Retrial On Prior Theory Which Was Charged But Not Litigated
    265.8.6 Double Jeopardy: No Subsequent Trial On Lesser Included Offense If Jeopardy Has Attached On Greater Offense

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PRACTICE NOTE: By protecting against multiple prosecutions for the same offense, the double jeopardy clause promotes finality in the criminal justice process, and thereby protects the accused against undue anxiety, expense and embarrassment. (See Cook and Hermann, Criminal Defense Checklist (West, 1999 ed.) § 7.02(1); see also generally Caplow & Griffin, Multidefendant Criminal Cases: Federal Law & Procedure (West, 1998) § 2:20; Gurulé, Complex Criminal Litigation - Prosecuting Drug Enterprises & Organized Crime (Lexis, 1996) § 14-1--14-3; Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) pp. 18-1-2; Rudstein, Civil Penalties & Multiple Punishments Under the Double Jeopardy Clause: Some Unanswered Questions (1993) 46 Ok.L.Rev. 587-654.)

    "[T]he State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." (Green v. U.S. (1957) 355 US 184, 187-88 [78 SCt 221; 2 LEd2d 199; see also Arizona v. Washington (1978) 434 US 497, 503-04 [98 SCt 824; 54 LEd2d 717].)

    "The double jeopardy guarantee has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." (U.S. v. Crosby (DC Cir. 1994) 20 F3d 480, 483.)

    If a person has been tried and acquitted of a crime that person cannot be retried for that offense. (See Cook and Hermann, Criminal Defense Checklist (West, 1999 ed.) § 7.02(6).)

    In U.S. v. Dixon (1993 ) 509 US 688 [113 SCt 2849; 125 LEd2d 556], the United States Supreme Court overruled Grady v. Corbin (1990) 495 US 508 [110 SCt 2084; 109 LEd2d 548], holding that Grady was based on faulty historical analysis which had produced undue confusion.

See generally, FORECITE National™ 305.12.2 [Lesser Included Offenses].

See generally, FORECITE National™ 265.1.4 [Lesser Included Offenses: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: It has been held that a defendant may not be convicted of both the greater and lesser included offenses. (People v. Pearson (CA 1986) 42 C3d 351, 356-57 [228 CR 509].) In such cases the jury should be instructed that if it finds the defendant guilty of one charge it must acquit on the other. (See e.g., CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 17.03 [Two Counts–Same Occurrence–Only One Crime]; 17.12 [Jury May Return Partial Verdict--Non-Homicide–Express Acquittal First] (West, 6th Ed. 1996).)

See generally, FORECITE National™ 305.12.2 [Lesser Included Offenses].

See generally, FORECITE National™ 265.1.4 [Lesser Included Offenses: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: People v. Fields (CA 1996) 13 C4th 289, 310-11 [52 CR2d 282] held that conviction of a lesser offense does not constitute an implied acquittal of the greater offense. However, if the jury is discharged without rendering a verdict as to the greater charge, the defendant cannot be retried on the greater charge under California law. (See Wharton’s Criminal Law (West, 15th ed. 1993) § 65 [no retrial of greater offense if defendant convicted of lesser included offense]; Cissell, Federal Criminal Trials (Lexis, 5th ed. 1996) § 10-3; see also Price v. Georgia (1970) 398 US 323 [90 SCt 1757; 26 LEd2d 300].)

    Hence, in such a situation, the prosecution must elect whether to move for a mistrial so that the entire matter may be retried or to accept the verdict on the lesser charge and forego the opportunity for a retrial on the greater charge. (Fields, 13 C4th at 310-11.)

See generally, FORECITE National™ 305.12.2 [Lesser Included Offenses].

See generally, FORECITE National™ 265.1.4 [Lesser Included Offenses: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: "When an appeal results in reversal of conviction for trial error, the defendant can be retried with no violation to the double jeopardy clause." (Cook and Hermann, Criminal Defense Checklist (West, 1999 ed.) § 7.02(10).)

    However, reversal of a conviction for insufficiency of the evidence bars retrial. (See Oregon v. Kennedy (1981) 456 US 667, 676 [102 SCt 2083; 72 LEd2d 416]; see also Cook and Hermann, Criminal Defense Checklist (West, 1999 ed.) § 7.02(11).)

See generally, FORECITE National™ 305.12.2 [Lesser Included Offenses].

See generally, FORECITE National™ 265.1.4 [Lesser Included Offenses: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: See Saylor v. Cornelius (6th Cir. 1988) 845 F2d 1401, 1403 [failure to submit the accomplice theory to the jury was the prosecution’s making, thus further prosecution on this theory would violate the double jeopardy clause].

See generally, FORECITE National™ 305.12.2 [Lesser Included Offenses].

See generally, FORECITE National™ 265.1.4 [Lesser Included Offenses: Federal Circuit Model Instructions And Notes].

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VOLUME 12 - CHAPTER 265

PRACTICE NOTE: See Wharton’s Criminal Law (West, 15th ed. 1993) § 66.

See generally, FORECITE National™ 305.12.2 [Lesser Included Offenses].

See generally, FORECITE National™ 265.1.4 [Lesser Included Offenses: Federal Circuit Model Instructions And Notes].