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NCJ Number: 97750 Find in a Library
Title: In Search of a Reasoned Approach to the Lesser Included Offense
Journal: Brooklyn Law Review  Volume:50  Issue:2  Dated:(Winter 1984)  Pages:191-228
Author(s): J L Ettinger
Date Published: 1984
Page Count: 38
Format: Article
Language: English
Country: United States of America
Annotation: This paper analyzes the concept of lesser included offense in Federal criminal proceedings, discusses case law on the subject, and proposes a standard to be applied in identifying the lesser included offense.
Abstract: When the defendant's alleged conduct is so complex or aggravated that guilt in the charged crime partly depends on certain acts that by themselves amount to a less serious, but uncharged offense, a judge may present that lesser included offense to the jury. Although considerable case law exists on the subject, the decisions lack analysis and opinions are split regarding which standard to apply in determining whether a crime amounts to a lesser included offense. It is also unclear when a party of a Federal criminal prosecution has the right to have an uncharged lesser included offense presented to the jury. In addition, the courts have recognized that their rulings may affect the laws relating to the prohibition against double jeopardy and the proper function of the jury, but have been reluctant to explore the nature or acceptability of those implications. The significant language on this issue is found in Federal Rule of Criminal Procedure 31(c). Three standards have been considered for use: the strict statutory standard that focuses entirely on statutory language, an intermediate standard that focuses on essential facts, and a lenient factual standard that analyzes the facts as charged in the indictment and as proved at trial. The consideration of the evidence introduced at trial enlarges the scope of the standard. The lenient factual standard should be used, because it is the only approach that enables the parties to react to their assessments of the trial and permits the jury to evaluate the evidence fully. Both parties to a criminal proceeding should have access to lesser included offense instructions. A total of 191 case notes are supplied.
Index Term(s): Appellate courts; Jury instructions; Multiple charges; Right against double jeopardy; US Supreme Court decisions
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