NCJ Number
139230
Journal
St. John's Law Review Volume: 66 Issue: 2 Dated: (Spring 1992) Pages: 329-372
Date Published
1992
Length
44 pages
Annotation
A tension exists in the law concerning cases in which the jury could possibly convict a defendant of crimes of a lesser degree than those with which he was originally charged. On one hand, permitting the jury to consider lesser crimes allows verdicts that reflect the appropriate degree of guilt established by the proof. However, this type of procedure can subvert the grand jury's prerogative of fixing charges as well as the defendant's right to fair notice of the charges against which he must defend himself.
Abstract
From 1829, the New York Code of Criminal Procedure contained a charge-down rule which the courts managed to use beneficially and without abuse. However, in 1970, the statute was replaced by the Criminal Procedure Law which effectively eliminated any verdict in felony murder other than guilty or not guilty. This author maintains that the simplicity of this new legislation has caused excessive unfairness and inaccuracy in the adjudication of felony murder cases. This article describes the steps by which the two judicial steps of indictment and evidence came to be applied to the question of charging the lesser degrees of homicide in these cases. The new law has had a dramatic effect on the submission of felony murder charges by dissolving the unity of murder under the law, affecting the defendant's rights in terms of waiving the absence of a mens rea allegation in the indictment, and changing the test for submitting lesser offenses. The author suggests a modification to the statute which would allow the defendant to request recognition of lesser included crimes under a felony murder indictment. 172 notes