Lesser included crime=double jeopardy for retrial?

On May 6, 8:35 am, Mike <prabb...@shamrocksgf.com> wrote:
> Stuart A. Bronstein wrote:

> > Think of it this way - if some elements are necessary components of two
> > different crimes, and the defendant is found not guilty of those
> > elements, he can't be guilty of the other crime either.
>
> Actually that analysis doesn't work. Let's say that law A makes driving
> fast illegal and law B makes driving drunk illegal. Now driving is a
> necessary component of both laws.

That's not what  Stu was talking about.   The lesser and greater offense both must share _every_ element of the lesser offense.   Your example would not preclude prosecution for drunk driving if the defendant driver were ticketed for speeding, not because DUI adds different elements that were not present in the lesser offense, but because a DUI conviction does NOT require proof of speeding. which IS a required element of the lesser offense.

> Now in the hypothetical case that started all this, the elements that
> made a violation of law A (attempted murder) were ALL included in law B
> (actual murder) but that's not quite what you said above.

Yes it is.   The elements required to prove attempted murder form a completely included subset of the elements needed to prove murder.   So, if one of those essential elements has not been proven after a trial to which jeopardy attaches, murder cannot be proven either.

> And also I
> wasn't questioning if he could be found guilty of murder if the SAME
> evidence wouldn't support a charge of attempted murder (which I agree he
> couldn't be) but would it be considered double-jeopardy if he was
> CHARGED with the murder if he was found not guilty of the attempted
> murder

Yes, because the acquittal of attempted murder, regardless of the reason, acts as a bar against later prosecution for a "greater inclusive" crime, to use Stu's phrase, even if new evidence is uncovered.  That's the whole point of the double jeopardy rule.  Otherwise, a person acquitted once could be re-tried for even the SAME crime, any time the state alleged it had uncovered "new evidence" that was not available at the first prosecution.

> (slightly different question since there could be new evidence
> that showed him actually guilty of murder. But Mike Jacobs did point out
> that it would be double-jeopardy to charge a greater-inclusive crime,
> the same as a lesser-included crime and I have no problem with it now
> that it's been answered. I.e. it wasn't so much that I didn't understand
> the double-jeopardy issue but that I wasn't sure how the courts had
> ruled this particular application of it.)

By George, Now He's Got It.   But I think that was Stu's insight on this thread, not mine, to give credit where due.

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