Sunday, February 12, 2006

Double jeopardy and proving each element of a crime

Ouch: am I right that in Mullaney v Wilbur, the accused is kind of screwed either way? If manslaughter and murder are the same crime, just of different degrees, then the state can establish a pretty low standard and then require the defendant to prove facts that push his particular act down from murder to manslaughter. If they are different crimes, then he can be tried twice: go for murder first, then if it doesn't stick, retry him on manslaughter. Given jury stochasticity, this substantially increases the likelihood of a conviction. Or am I wrong: are the crimes too close together, triggering double jeopardy? I hope we learn this in this class...

UPDATE: I am told by a fellow-small-grouper that the doctrine of "lesser included offenses" bars this. More to come as we get to this.

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