Lesser included offenses

This is the third in a series of posts related to James Fields, Jr., who drove his car into a crowd of counterprotestors in Charlottesville, Virginia. His charge was recently upgraded from second to first degree murder. Last week I wrote about the difference between these two charges.

As I said last week, in order to get a first degree conviction, the prosecutor will have to prove that Fields premeditated the killing. That’s going to be somewhat tricky, because there’s no evidence that Fields planned the act more than a few moments in advance. A few moments is legally enough to constitute premeditation, but it makes for a difficult case. What happens if the jury finds insufficient evidence of premeditation?

Well, Fields almost certainly won’t go free. For one thing, he’s also facing about ten other charges related to the incident, including malicious wounding. More importantly, however, the jury could still find Fields guilty of the lesser included offense of second degree murder.

What does that mean? Every crime is made up of individual ingredients, called elements. Prosecutors must prove all these elements in order to gain a conviction. Sometimes two offenses consist of very similar elements. For example, larceny is taking someone else’s property, while robbery is taking someone else’s property through threat or force. Breaking and entering is unauthorized entry into a structure or vehicle; burglary is unauthorized entry into a structure or vehicle with intent to commit a felony or steal something inside. In these examples, larceny is a lesser included offense of robbery, and b & e is a lesser included offense of burglary. Each lesser offense includes some but not all of the elements of the greater offense.

Okay. So second degree murder is intentionally taking human life. First degree is intentionally and with premeditation taking a human life. Second degree is a lesser included offense of first degree. And the law says that when a jury fails to find a defendant guilty of first degree murder, they can still convict for the lesser offense if the prosecutor has proven all the lesser offense’s elements. In Fields’s case, even if the prosecutor fails to prove premeditation, he might prove that Fields intentionally killed the victim.

First versus second degree

I’m in the middle of a series of posts related to the case of James Fields, Jr., who drove his car into a crowd of counterprotestors in Charlottesville, Virginia, killing one person and injuring others. He was originally charged with second degree murder, but the charges have been upgraded to first degree.

So what’s the difference between first and second degree murder?

Both crimes involve the same act: taking a human life. What differentiates them (and all other forms of homicide) is the defendant’s mental state. For second degree, the defendant must intentionally kill. For first degree, he must kill intentionally and with premeditation. In other words, second degree might be a split second decision, but first degree requires some amount of forethought. Because we believe that a planned murder is more blameworthy, first degree carries a more serious penalty than second.

Now, when I say “premeditation,” you may be picturing a villain spending months scheming away, developing the perfect plan to do away with her nemesis. That would certainly count. But the law doesn’t actually require that much. In fact, the defendant might ponder for only seconds before she acts. Or if the killing takes some time—such as when the victim is strangled, for example—the pondering might even take place during the act itself. All that’s required is proof that the defendant had time and opportunity to think about what she was doing to the victim.

It’s also worth noting that the defendant doesn’t have to develop intent to kill any particular person. It’s enough if he decides to create substantial risk to human life in general—such as shooting into a passenger train, setting up a bomb in a public place, placing poison in something people are likely to consume, or dropping a heavy object off an overpass onto a highway.

In Fields’s case, videos show the defendant driving slowly toward the crowd, backing up and then accelerating directly into numerous people. He then quickly reversed again, striking more people before getting away. The prosecutor will have to prove that in those short moments before his foot hit the gas, Fields deliberately decided to strike people with with his vehicle at a substantial speed. If the prosecutor can prove that, Fields may end up convicted of first degree murder.

Next week: What if the prosecutor can’t prove premeditation?


Evolving charges

On August 12, 2017, a group of people were in the streets of Charlottesville, Virginia, counterprotesting white nationalists. James Fields, Jr., a man with a reported fascination for Nazis, apparently deliberately drove his car into a crowd. He killed one person, Heather Heyer, and injured dozens more. Just last week, prosecutors announced they’d be seeking a first degree murder conviction against him. For the next few weeks, I’ll be posting on some issues related to this case.

Today I’m going to talk about how criminal charges might evolve in a case.

In a typical criminal case, a person is arrested by police. The police report will list at least one potential criminal violation; police are supposed to have probable cause to believe that the suspect has committed this crime.

The prosecutor will review the report and decide whether to pursue the case (incidentally, this is one reason why police must have decent writing skills). If the prosecutor opts to go forward, she’ll issue something called a criminal complaint. This will specify the parts of the criminal code which the defendant is alleged to have violated. These charges may or may not be the same crimes named in the arrest report because the prosecutor may find that fewer, additional, or different offenses are better substantiated.

Within a short period of time—usually two business days—the defendant will be arraigned. As part of this process, he’ll be informed of the charges in the complaint.

In Fields’s case, the complaint charged him with second degree murder along with a slew of lesser offenses such as malicious wounding.

After the arraignment, the prosecutor will conduct additional investigations (as will the defense attorney). Eventually there will be a probable cause hearing, the purpose of which is to determine whether there’s sufficient evidence to proceed with the case. That hearing may be a preliminary hearing, in front of a judge, or it may be a grand jury proceeding, in front of a group of citizens. In either case, the prosecutor has to produce enough evidence for the charges to stick. And sometimes, perhaps pursuant to additional evidence that’s been collected, those charges may be different from those in the complaint.

That’s what’s happened in Fields’s case. The preliminary hearing was last week, and the prosecutor opted to upgrade the most serious charge from second to first degree murder. The judge found enough evidence to support first degree, so that’s the charge Fields now faces.

In some cases, charges may continue to evolve after the probable cause hearing. Prosecutors may drop some charges or, pursuant to a plea bargain, defendants might plead guilty to a lesser offense.

Next week: the difference between first and second degree murder.

I swear!

This week’s post is inspired by a news clip, which you can watch here:


The federal government and states require people to take an oath before being sworn into office. Jurisdictions vary as to which offices require the oath. I know California is broad in its requirements, because I had to take an oath before becoming a professor at a state university.

The content of the oath varies a bit, but generally the person swears to uphold the US Constitution and to faithfully discharge the duties of the office. If it’s a state office, the person will also swear to uphold the state constitution and laws.

The person who administers the oath varies as well. It might be a judge or another government official.

While some people may choose to lay a hand on the Bible during the oath, that’s tradition rather than a requirement. In fact, several US presidents have opted out of this. Similarly, although oaths may include the phrase “so help me God,” that phrase can be omitted. (For the record, neither the Bible nor that phrase were included in the mass oath-taking when a bunch of us became professors.)

Some people oppose oath-taking, primarily on religious grounds. In those cases, the person can make essentially the same promises–without the Bible or reference to God. Those are generally called affirmations rather than oaths, but they serve the same purpose.


Unhanging a jury

Traditionally, juries have been required to reach a unanimous decision. A few states do allow non-unanimous convictions (such as by a 10-2 vote), but they’re in the minority. So what happens when a jury can’t reach a decision?

If a jury is well and truly stuck, the judge will declare a mistrial. The prosecutor has the option of bringing charges again (double jeopardy doesn’t prevent this), but of course that will involve lots of extra time and money for the government. Plus the accused and any witnesses will have to go through another trial. Judges really, really don’t want this to happen.

If the jury is hung, about half the states allow something called an Allen charge. Allen charges are allowed in federal cases as well. Named after an 1896 murder case, an Allen charge is essentially a plea from the judge to the minority members of the jury, urging them to consider joining with the majority. The charge emphasizes the potential costs of a retrial, and it points out that the evidence was strong enough to convince most of the jurors. It’s worded strongly enough that it’s often called a “dynamite charge.”

The Allen charge is controversial. Many argue that it’s coercive. For that reason and others, about half the states forbid it. In those states, if a jury is deadlocked, a judge may ask them to consider further. But if that gets them nowhere, a mistrial will be declared.

In search of Truth

I’m teaching a class on the history of criminal justice this semester (woohoo! Fourth Lateran Council!), and this week’s discussion turned to an interesting question: what’s the best way for a court to find the Truth? This might be a good thing to consider for authors, especially those who are creating a judicial system in a fantasy world or alternate universe.

For various historical reasons, England and it colonies ended up with a different approach to this issue than did continental Europe. The English—and American—version is known as the adversarial system. Under this system, each side in a criminal case presents evidence to an impartial decision-maker, usually a jury. Each side decides which evidence it wants to present. The judge in this system acts like a referee in a sporting event, making sure each side follows the rules. In the end, the decision-maker determines which side has been more persuasive. Has the prosecution proved every element beyond a reasonable doubt? Or has the defense managed to refute enough of the prosecution’s case to raise doubts?

The continental version is called the inquisitorial system. I know that for many people, that name brings to mind the Spanish Inquisition, but I assure you that heretics are no longer burned at the stake. In this system, the judge takes a much more active role and will often lead the course of the trial, making determinations about which lines of evidence to pursue. The judge will also determine guilt.

I don’t know that there’s any proof that either system is more effective at reaching the truth. Research has suggested, however, that people tend to feel most comfortable with and confident in the system they’re accustomed to. If you’re building a fictional system, you’ll want to think carefully about what suits your world best.



Somewhere along the line, a rumor started that police can’t lie to suspects, especially if the suspect asks whether the undercover officer is a cop. If the cop does lie, the story says, it’s entrapment. This is a myth. Cops can and do lie all the time. It would be hard for them to do their jobs otherwise.

Nevertheless, the defense of entrapment does exist. Its primary purpose is to ensure that otherwise innocent people aren’t lured by police into attempting crimes they otherwise never would have committed. The underlying idea, I think, is that everyone has a price. Given enough incentive, even the most law-abiding among us might be tempted to stray. (This was part of the idea in the movie Indecent Proposal.)

In the United States, standards vary for determining whether entrapment has occurred. Some states use a subjective test, asking whether the defendant was predisposed to commit the crime. Others use an objective test. That asks whether a reasonable law-abiding person, placed in the defendant’s shoes, would have been likely to commit the offense.

Entrapment comes up as a defense most often during sting operations, when undercover officers induce someone to do something illegal. Of course, the intention of the operations (we hope) is to catch people who already planned illegal activity. Sting operations can be very useful in a variety of contexts, such as prostitution, drug trafficking, and auto theft. But if the operation goes too far, innocent people may be drawn in. Police who want to engage in these activities need to be careful not to cross over the line.

For federal cases on entrapment, check out Jacobson v. United States (involving child pornography) and Sorrells v. United States (alcohol during Prohibition). Either could serve as good plot inspiration.


Plot bunny: plea bargaining dilemma

Last week I gave you a plot bunny (big city cop in a small town!), and here I am with another. This one will work pretty well if you want a sympathetic protagonist with a criminal record.

Here are the facts. About 95% of criminal cases never make it to trial. The primary reason for that is plea bargaining, in which the defendant agrees to plead guilty—often to lesser charges—in exchange for a reduced sentence. (For more on plea bargains, check this previous post.)

Plea bargains offer a lot of potential benefits. The defense attorney has a lighter caseload. So does the prosecutor—who also gets another conviction credited to her. The courts have fewer cases, resulting in less expense and less backlog. And guilty defendants get a lighter punishment.

But. What if the defendant is innocent? What if he honestly didn’t commit the crime, but his defense attorney comes to him with a deal from the DA: plead guilty and spend, say, 5 years in prison, or go to trial and risk getting convicted and spending  even longer locked up? What if the stakes in this gamble are really high—as in a potential life sentence? What’s our poor, innocent hero going to do? Well??

(Incidentally, that handsome plot bunny was drawn by the very talented Catherine Dair. You should check out her other work!)

History of juries

I sort of have a thing for history, and today I’m indulging myself by talking about the history of juries.

Like many other components of our legal system, juries come to us from Merry Olde England. Way back when—and I do mean way back, because we’re talking at least as early as the 12th century—a group of local men would investigate claims and present the evidence under oath to the judge. Essentially they were both prosecutors and witnesses, and they were called presenting juries. This is quite different from our modern concept of jurors as people who initially know nothing about a crime, although presenting juries still exist to an extent in our modern system; today we call them grand juries, and their job is to determine whether enough evidence exists to proceed with a criminal prosecution.

In 1166, in an act called the Assize of Clarendon, King Henry II required presenting juries throughout England. This was part of his effort to standardize the legal system throughout the country and also to ensure he maintained power in a way that wouldn’t piss off his subjects too much. (This was shortly after the Norman Conquest, when not much love was lost between the Anglo-Saxon commoners and the Norman nobility.) It was a clever idea in that it provided local input into prosecutions while still allowing the king-appointed judges to be in charge. The size of juries was already set at twelve men, although the precise reason for this is not certain.

At this point many criminal cases were still tried by the Catholic church using trial by ordeal. The accused would do something dangerous, like carrying a hot iron, and if he wasn’t harmed, it meant God had been protecting him, which indicated he was innocent. But in 1215 Pope Innocent III called the Fourth Lateran Council. Among other things, the council forbade priests from officiating over trials by ordeal.

As it turns out, 1215 was an important year law-wise, because it’s also the year in which Magna Carta was signed. Magna Carta was essentially a peace treaty between King John and a bunch of unhappy barons who’d been at war with him. The charter limited the king’s powers in several respects, and it guaranteed trial by jury—at least for noblemen.

Stripped of the ability to use trial by ordeal and with Magna Carta as a model, the English legal system turned to those presenting juries as a handy way to determine guilt. These new kinds of juries were called petit juries—small juries—and over the years they were invested with a surprising amount of power, including  jury nullification. That’s the power to essentially ignore the law and acquit an guilty defendant when doing so is just.

English colonists brought their legal system to America. And we ran with the idea of juries, maybe due in part to our populist ideals. Today, the US uses juries more extensively than any country in the world—including the UK, which has scaled back on them in several respects. Most countries don’t use juries at all, leaving it to the judge to determine guilt. Here in the US, the laws and rules regarding juries have evolved as well, but in essence juries are an institution that has been in place for a millennium or so.

Warranted: the exclusionary rule

Today is the final post on warrants—at least for now.

I’ll start with a story. In 1957, Cleveland police were looking for evidence of a bombing, and although Dollree Mapp wasn’t the suspect, they believed she might have evidence in her home. But she refused to let them in. So they returned a few hours later, waving a paper and claiming it was a search warrant. She snatched the paper and shoved it down the front of her dress; they wrestled her and took the paper back. With Mapp in cuffs, they proceeded to search her house. Inside a trunk in the basement they found pornographic books and pictures (the property, Mapp said, of a previous tenant). They arrested Mapp and prosecuted her for possession of illegal pornography. No warrant was ever produced at trial. It’s pretty clear none ever existed.

Mapp appealed her conviction all the way to the Supreme Court, arguing that because police did not have a warrant, the search violated her 4th Amendment rights. Therefore, she said, the evidence should be thrown out of court and her conviction overturned.

In Mapp v. Ohio, SCOTUS agreed. They articulated the exclusionary rule, which says that illegally obtained evidence can’t be used in court. This is a powerful rule because it means that sometimes people we know are guilty will still go free because the cops screwed up. But, the Court said, the rule was the only realistic way to deter police misconduct and protect constitutional rights.

As you might imagine, the exclusionary rule has been unpopular among a lot of people. Over the years, SCOTUS has carved out a number of exceptions to the rule. But the heart of the rule remains intact.

And this concludes our whirlwind tour of warrants!