MISCELLANEOUS MATTERS: Multiplicity and Lesser Included Offenses: Tests

2008 (Transition)

United States v. Medina, 66 M.J. 21 (to determine whether a lesser offense is necessarily included in the offense charged, an appellate court applies the elements test derived from US v. Schmuck, 489 US 705 (1989); the comparison to be drawn is between offenses; since offenses are statutorily defined, that comparison is appropriately conducted by reference to the statutory elements of the offenses in question, and not, as the inherent relationship approach would mandate, by reference to conduct proved at trial regardless of the statutory definitions; one offense is not necessarily included in another unless the elements of the lesser offense are a subset of the elements of the charged offense). 



United States v. Paxton, 64 M.J. 484 (multiplicity and unreasonable multiplication of charges are two distinct concepts; multiplicity, a constitutional violation under the Double Jeopardy Clause, occurs if a court, contrary to the intent of Congress, imposes multiple convictions and punishments under different statutes for the same act or course of conduct; even if offenses are not multiplicious as a matter of law with respect to double jeopardy concerns, the prohibition against unreasonable multiplication of charges allows courts-martial and reviewing authorities to address prosecutorial overreaching by imposing a standard of reasonableness).

n addressing whether the government has unreasonably multiplied charges, a court applies a five-part test:  (1) did the accused object at trial that there was an unreasonable multiplication of charges and/or specifications; (2) is each charge and specification aimed at distinctly separate criminal acts; (3) does the number of charges and specifications misrepresent or exaggerate the appellant’s criminality; (4) does the number of charges and specifications unreasonably increase the appellant’s punitive exposure; (5) is there any evidence of prosecutorial overreaching or abuse in the drafting of the charges).


United States v. Szentmiklosi, 55 MJ 487 (unless a statutory intent to permit multiple punishments is stated clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses).

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