Interesting. So the jury in theory could just find a lesser charge of some sort and convict him of it, say assault for example? Seems wrong to allow the jury to decide what the person should be convicted of rather than simply deciding on what he or she has been indicted for.
Eye witness for prosecution !
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Interesting. So the jury in theory could just find a lesser charge of some sort and convict him of it, say assault for example? Seems wrong to allow the jury to decide what the person should be convicted of rather than simply deciding on what he or she has been indicted for.
It has to be a actual lesser-included offense, though. Meaning the elements of the lesser offense are inherent in the initial charge. It can't be an offense that has a necessary element not present in what the defendant was indicted for.
For example, let's say someone was charged with Possession of Marijuana for Sale. The evidence includes scales and baggies found in the home. The jury could have the option (if the Judge allows it) of convicting of simply Possession of Marijuana, but not of Possession of Drug Paraphernalia, even though evidence of paraphernalia was admitted at trial. That's because possession of the drug is inherent in the possesion/sale charge, but possession of paraphernalia is not.
Couple of things, and thank you for humoring me and my ignorance. 1) How can a judge allow/not allow something that is state law. 2) If a defendant in the course of the trial and defending himself against a charge says something that incriminates him to a lesser charge, how is that not violating his 5th amendment rights. If he thought he was defending himself against the lesser charge for instance he might have plead the 5th, not taken the stand, or his attorney might have chosen to introduce different evidence. Just seems like a shotgun approach to me and one that puts the advantage in the prosecutors corner rather than in the defendants corner where it is supposed to be. I would like to again point out that this is more about the process for me than this actual case.
The judge has discretion to allow a lesser-included to be put on the verdict forms, generally based on the evidence that comes out at trial. If the defense is arguing mistaken identification or third-party defense or something like that, then a lesser-included wouldn't be allowed at the defense request. I've never actually had the State make a request for a lesser in a case; it's always been from the defense side, although I can see it making sense in a murder case. The state laws and court rules (at least in Arizona) give the judge that discretion.
As far as B goes, since each element of the lesser is something that would have to be proven in order to prove the primary charge, it isn't a 5th amendment violation; the defendant chose to waive his right to remain silent by choosing to take the stand. And Marine is right, that is a big reason why defendants often don't take the stand, although two bigger reasons are 1. prior criminal history is generally inadmissible but CAN be brought in for impeaching credibility of the defendant testifies, and 2. people get nervous and if you can get everything you want to say in through other witnesses, it is usually easier than risking the defendant getting completely understandable anxiety on the stand and fumbling over something that can be pounced on and twisted in closing argument.
The thing to remember about lesser-included offenses is that they are not additional offenses. They are things that would have to be proven in order to get a conviction on the primary charge. If ANY element of a lesser-included is not an element of the primary charge, it won't be allowed.
Here are a couple of the regularly-cited cases on lesser-includeds in AZ:
In determining whether an instruction on a lesser-included offense is proper, the Arizona Supreme Court has set forth a two-part test: (1) whether the offense is a lesser-included offense of the crime charged, and (2) whether the evidence otherwise supports the giving of the instruction. State v. Vickers, 159 Ariz. 532, 542, 768 P.2d 1177, 1187 (1989).
When the record is such that the defendant is either guilty of the crime charged or not guilty, the trial court should refuse to give a lesser-included instruction. State v. Van Adams, 194 Ariz. 408, 984 P. 2d 219 (1999).
A lesser-included offense must be composed solely of some, but not all, of the elements of the greater offense so that it is impossible to have committed the crime charged without having committed the lesser one. State v. Kinkade, 147 Ariz. 250, 253, 709 P.2d 884, 887 (1985);
In determining whether an instruction on a lesser-included offense is proper, the Arizona Supreme Court has set forth a two-part test: (1) whether the offense is a lesser-included offense of the crime charged, and (2) whether the evidence otherwise supports the giving of the instruction. State v. Vickers, 159 Ariz. 532, 542, 768 P.2d 1177, 1187 (1989).
When the record is such that the defendant is either guilty of the crime charged or not guilty, the trial court should refuse to give a lesser-included instruction. State v. Van Adams, 194 Ariz. 408, 984 P. 2d 219 (1999).
A lesser-included offense must be composed solely of some, but not all, of the elements of the greater offense so that it is impossible to have committed the crime charged without having committed the lesser one. State v. Kinkade, 147 Ariz. 250, 253, 709 P.2d 884, 887 (1985);
- Feb 26, 2001
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You should be banned for life for this. And then you should be raped and run over by a train shortly after.
Another Idiotic post from the Tramp, sorry, I mean the Race Crusader, You go Girl.
:toast:
- Feb 26, 2001
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I thought I was on ignore? You bitches are all the same.
:mj07: :mj07: :mj07: :mj07: :mj07: :mj07: :mj07: :mj07: :mj07: :mj07: :mj07: :mj07: :mj07: :mj07: :mj07: :mj07: :mj07:
You are a worthless piece of shit for posting something like that. At least bigoted simpleton's like Hedge own up to when they post crap, you are now backpedaling saying it was an innocent repost from another forum, as to somehow distance yourself from being a class A douche.
How about you set TFresh aside just like umf, King69 and DrRays, and start over with another new name?
- Sep 1, 2012
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What a bunch of whining bitches. Here let Penn tell you :
:stfu: :stfu: :stfu: :stfu:
Big fukking deal someone made that gif and I posted it. Get the fuk over it. Cry baby assholes.
Plenty worse stuff been posted here....
Admin: Take the rest of the weekend off :sadwave:
:stfu: :stfu: :stfu: :stfu:
Big fukking deal someone made that gif and I posted it. Get the fuk over it. Cry baby assholes.
Plenty worse stuff been posted here....
Admin: Take the rest of the weekend off :sadwave:
like that time YOU wished Jack would die in his sleep because your pussy was hurting during the Orange Bowl? :shrug:
Go fuck yourself asshole.
Still zero idea why you continue to post at a site where you wished Jack would die you fucking coward.
I understand Jack's very lenient policy about not banning people for stupidity (I understand it, I don't get it), but this guy crosses the line and he does it intentionally.
How he is still here is a mystery.
How he is still here is a mystery.
