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Say Mark is charged with A (let's say Murder), but the charges don't stick because e.g. he didn't do it on purpose. Can Mark then charged as a follow-up for B (e.g. involuntary manslaughter)? Or does getting exonerated from A mean you can't keep charging him with lesser crimes like B until something sticks? And if you can charge him with B, does that mean you have to do a whole nother trial?

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  • related and possible dupe - law.stackexchange.com/questions/82726/…
    – Neil Meyer
    Commented May 15, 2023 at 8:19
  • If super users can comment if that is a dupe I would appreciate it. I'm uncertain if it is.
    – Neil Meyer
    Commented May 15, 2023 at 8:20
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    This is why any competent prosecutor will include lesser charges as a fallback plan if the main one fails, because it would be too late to do so after the trial. If the prosecution in their overconfidence presses only for first-degree murder, then the murderer might get declared not guilty despite overwhelming evidence, if some on the jury is strongly against the death penalty.
    – vsz
    Commented May 16, 2023 at 5:32
  • @vsz but then the members of the jury are committing that thing we are not supposed to talk about. Commented May 16, 2023 at 14:43
  • When the "charges don't stick" in the process matters in U.S. law with the critical question being as related in an answer whether jeopardy has attached or not (and how, an agreement of a prosecutor would be different from a dismissal for illegally obtained evidence would be different from a jury acquittal). Also, it isn't uncommon for lesser charges to have a shorter statute of limitations than more serious charges (see, e.g., Donald Trump's business record falsification case). So, sometimes, the lesser charges can't be brought.
    – ohwilleke
    Commented May 17, 2023 at 17:42

4 Answers 4

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It depends on what you mean by "doesn't stick." If Mark is acquitted of murder in state court, he can't be tried again in state court for the same act of homicide. If the charges are dropped or dismissed without prejudice before jeopardy "attaches" then Mark can be charged again and tried for manslaughter or even murder.

From Wikipedia:

The Double Jeopardy clause encompasses four distinct prohibitions: subsequent prosecution after acquittal, subsequent prosecution after conviction, subsequent prosecution after certain mistrials, and multiple punishment in the same indictment. Jeopardy "attaches" when the jury is impanelled, the first witness is sworn, or a plea is accepted.

Any lesser crimes that could be charged for the same act (or acts) are instead considered concurrently with the main charge (or charges) at the original trial. See lesser included offense at Wikipedia.

And if you can charge him with B, does that mean you have to do a whole nother trial?

Yes. If you can charge Mark again, this means that jeopardy did not attach. In this case, if a new charge is to be brought, the entire process starts again from the beginning.

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  • The article on lesser included offenses indicates that if capital punishment is an option, then the court must instruct the jury that they have the option to convict for a lesser included offense. In such a case it's pretty obvious that an acquittal in a murder case implies an acquittal for manslaughter. But what if the jury doesn't receive such instruction? Does acquittal for robbery automatically imply acquittal for larceny, even if the jury didn't know convicting for larceny was an option?
    – T Hummus
    Commented May 14, 2023 at 13:45
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    @THummus: I don't think that paragraph is true for the US, or US states, at least not all of them. AFAIK, in those jurisdictions, the jury can only convict or acquit on the counts actually charged. If the prosecutor charged robbery and larceny, the jury has the option to acquit of robbery and convict of larceny. If the prosecutor charged only robbery, and the jury doesn't find the elements of robbery were proved, they must acquit; in that case the defendant cannot be retried for larceny. Commented May 14, 2023 at 15:44
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    @THummus: So it becomes a strategic decision for the prosecutor whether to charge the lesser included offense (thus giving the jury an "out") or not. Commented May 14, 2023 at 15:45
  • 2
    @NateEldredge, on the other hand, robbery is not a lesser included offense of homicide, so if you charge with homicide and the jury acquits, you can still charge with robbery at a later date.
    – Mark
    Commented May 14, 2023 at 18:47
  • Don't forget the grand jury, which has the ability to reduce the charge instead of just no-billing the addition charge
    – Kevin
    Commented May 15, 2023 at 14:35
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Criminal Code, s. 662 provides that the accused is at jeopardy of all lesser included offences that are subsumed within the offence charged or as described in the count.

An offence is “included” if its elements are embraced in the offence charged (as described in the enactment creating it or as charged in the count) or if it is expressly stated to be an included offence in the Criminal Code itself.

(R. v. G.R., 2005 SCC 45, paragraph 25)

Where the accused was at jeopardy of a conviction on a lesser included offence, the principle against double jeopardy (specifically, autrefois acquit) precludes a subsequent prosecution on that lesser included offence.

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  • 3
    In non-technical language, if for example someone's charged with murder but the evidence only supports a lesser charge like manslaughter, the murder trial can and should convict them of manslaughter. So they were already implicitly (or explicitly?) on trial for manslaughter as well; a new trial isn't needed to decide that (and thus isn't allowed.) Makes sense. Commented May 15, 2023 at 3:56
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The CPS offers guidance on this. You can't be retried for a lesser or more serious offence unless "new and compelling" evidence comes to light.

Under normal circumstances they get one bite of the cherry.

Retrial of Serious Offences

If a person was acquitted of a qualifying offence within section 75 (1) [of the Criminal Justice Act (2003)] then that person is treated as also having been acquitted of any alternative offence which is itself a qualifying offence, i.e. an offence of which he or she could have been convicted in those proceedings because of the offence being charged in the indictment...

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The defendant cannot be put on trial twice for the same crime*. But the judge can derubricare the crime, which is a technical term to say that the judge can reduce the charge.

[*] After the first degree the prosecutor could challenge the verdict and trigger a second degree trial, but that would be something different.

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