(an appellate court may remedy multiplicity error by either permitting the government to elect which conviction to dismiss or by making the election itself either remedies the error of a double conviction for the same act). 68 (CAAF 2000) that says “dismissal of the lesser-included offense is required by the Supreme Court’s recent cases on the Double Jeopardy Clause of the United States Constitution” is abrogated to the extent it holds that the dismissal of the lesser included offense is required to cure multiplicity error identified on appeal). (mandating which conviction to dismiss to remedy multiplicity error is not dictated by the Constitution, as dismissing either conviction eliminates the double jeopardy issue thus, to remedy multiplicity error by permitting the government to elect which multiplicious conviction to retain and which to dismiss ensures a judgment free of the constitutional infirmity of a double conviction for the same act). 420 (the lesser included offense must not always be dismissed to remedy multiplicity error while often it is the lesser included offense which is dismissed, where the lesser included offense is the more serious offense because it carries higher punitive exposure, it is not unreasonable for the government to request that the elementally greater offense be dismissed). Lesser Included Offenses: Lesser Included Ancient civilizations relied on the blood feud to provide justice when one person killed another -the relatives of a slain person had a duty to avenge the death.MISCELLANEOUS MATTERS: Multiplicity and Lesser Included Offenses: Lesser Included Offenses While the blood feud manifested a rough "eye-for-an-eye" retributive justice, it could, in theory, lead to an endless series of killings as each death was avenged. The Greek playwright Aeschylus dramatized a cycle of blood feud revenge in The Oresteian Trilogy, which ended with the Greek gods deciding that a trial is a better way to achieve justice. Part of the reason to replace the blood feud with a trial is to permit the cycle of revenge to end, to provide a final outcome to a dispute, and to create repose in the litigants. But to protect the finality of outcomes, there must exist a principle forbidding a retrial of the same case or the same issue.Ī double jeopardy principle has been part of Western legal systems for thousands of years. The Code of Hammurabi, for example, in the nineteenth century B.C.E. sought to prohibit judges from changing judgments (law 15). The Greek philosopher Demosthenes said in 355 B.C.E. that the "laws forbid the same man to be tried twice on the same issue." In the Roman Republic,Īn acquittal could not be appealed. 391 interpreted a passage from the Old Testament to mean that not even God judges twice for the same act. The English common law principle that there should be one punishment for one crime first manifested itself during the confrontation between King Henry II and St. Henry, the great-grandson of William the Conqueror, enacted a law that required punishment in the king's court of clergy who had already been punished in the church courts. In opposing this law, Becket relied on St. Jerome's principle forbidding more than one judgment for the same act. After four of Henry's knights killed Becket, the pope condemned Henry's provisions permitting the double punishment of clergy. Henry relented and today, over eight hundred years later, courts still condemn double punishment. The Fifth Amendment provides: "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." The evolution of double jeopardy law from the twelfth century to today cannot be easily summarized, but the great English commentator Sir William Blackstone could state confidently in 1765 that there was a "universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offence." This "universal maxim" led directly to the Fifth Amendment double jeopardy clause, which is strikingly similar to Blackstone's statement of the common law maxim.
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