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a contested criminal trial, the accused may in fact be on trial
for more charges than appear on the charge sheet. This may not seem
right, or logical, but the law provides that if the judge or the
jury finds an accused not guilty of an offense he is charged with,
the Court must then deliberate to determine if the accused is guilty
of any applicable “lesser included offenses,” which
we will refer to in this article as “LIO’s.”
To explain this doctrine of law, it is best to do so using a hypothetical,
such as a scenario where the accused is charged with rape in violation
of Art. 120, UCMJ. Rape is obviously an extremely serious accusation
and is one that can actually be referred as a capital case (death
penalty possible), although it is routinely considered as having
a maximum confinement of life in prison, without the possibility
of parole. As in any criminal case, the prosecution is obligated
to prove the applicable elements beyond a reasonable doubt. The
key elements in the offense of rape are that there was an act of
sexual intercourse that was not consented to and was committed by
force, threat or intimidation. Sexual penetration must be proven
to have occurred. At trial, the defense may take one of several
positions in defense of the charge of rape. For example, the accused
in the case might contend that although he had sexual intercourse
with the woman, that it was “consensual.” In that case,
where there may be no dispute as to whether the sexual act occurred,
when the Court inquires of the defense if it believes there are
any lesser included offenses, the defense may very well say “no
your honor,” preferring to force the members to make an “all
or nothing” decision. That obviously can be a very risky move,
since if the jury comes back with a conviction, it is for the most
serious offense and the accused would then be looking at a possible
sentence of life in prison.
A second approach of the defense may be that the prosecution did
not sufficiently prove that sexual penetration occurred. In that
event, the Court would be obligated to instruct as to any lesser
include offenses, such as “attempted rape” in violation
of Article 80, UCMJ. Remember the accused has not been charged with
attempted rape, but when the evidence has been presented to the
Court, he may in fact be facing that charge even though it is not
on the charge sheet, depending upon how the evidence unfolds in
the case. Procedurally the members will be obligated to initially
only deliberate as to the issue of guilt or innocence on the charged
offense of rape. However, if the accused is found not guilty of
that charge, the members are then obligated to deliberate on the
LIO of attempted rape. If the accused is convicted of attempted
rape, he will then be facing a maximum of 20 years in confinement.
In this hypothetical, it is plausible for the Court to find the
accused not guilty of rape and also not guilty of attempted rape,
but the accused is not out of hot water yet. The members will then
be instructed by the judge to consider other applicable LIO’s,
in descending order (most serious to less serious) until all possible
offenses fairly embraced by the evidence have been considered.
Lets assume further that there seems to be a question based upon
the evidence as to what the intention of the accused was at the
time he allegedly assaulted the woman. (This is where there is insufficient
proof of sexual penetration). In other words, the members determine
that the accused touched the woman in a sexual manner, but they
are uncertain as to what his intention was at the time of the touching.
The Court will likely instruct the members on the LIO of “assault
with the intent to commit rape” in violation of Art. 134,
UCMJ, which carries a maximum confinement of 20 years. Now assume
the accused is acquitted of that offense, you can anticipate that
the Court may instruct on the offense of “indecent assault”
in violation of Art. 134, UCMJ, which carries a maximum confinement
of 5 years. Finally, the Court may likely instruct on “assault
consummated by a battery” (maximum confinement of 6 months)
and then on “simple assault” (maximum confinement of
3 months), both in violation of Art. 128, UCMJ.
Let’s consider another situation for demonstration purposes.
In this hypothetical, the accused is charged with distribution of
cocaine, in violation of Art. 112a, UCMJ which carries a maximum
confinement of 15 years. Assume that the investigators were unable
to secure any of the cocaine, so there is no lab report or other
evidence to conclusively establish that the white powder was in
fact cocaine. To be guilty of the charged offense, the prosecution
needs to prove the substance was an illegal drug. If they fail to
do so, the accused must be found not guilty of the charged offense,
but again the Court will look at whether or not there are any LIO’s.
In this case there clearly are LIO’s, the first one being
the LIO of “attempted distribution of cocaine,” in violation
of Art. 80, UCMJ which carries a maximum confinement of 15 years.
To be guilty of this offense, one option is that the Court must
be convinced beyond a reasonable doubt that the accused actually
intended to distribute cocaine, but the evidence is insufficient
to establish that the white powder was in fact cocaine. Now lets
assume that the evidence that comes out at trial falls short of
the overt action that is required for a distribution to occur, or
for attempted distribution, but there is evidence to support the
contention that the accused possessed the drug and did so with the
specific “intent to distribute” it in violation of Art.
112a, UCMJ. The Court will likely instruct as to that offense which
carries a maximum confinement of 15 years. Of course it is possible
that the Court may find that there is sufficient proof to establish
that accused possessed the drug, but the Court finds there is not
sufficient evidence to prove an intent to distribute the drug. That
will lead to an acquittal of that LIO, and necessitate the Court
giving an instruction on the LIO of “possession of cocaine”
in violation of Art. 112a, UCMJ which carries a maximum confinement
of 5 years.
In closing, hopefully these examples have demonstrated how a person
charged with one criminal offense may in fact be facing trial on
several offenses that do not even appear on the charge sheet. It
may sound to some to be totally unfair, and to others to be a great
idea, but that is the way it works in a criminal trial.
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