Zimmerman and Lesser Included Offenses

What Happens if the Jury Doesn’t Feel Zimmerman is Guilty of Murder but is Guilty of Another Crime?

On Facebook this evening, a friend posted that he thought that George Zimmerman would be found not guilty of murder and then would be retried and found guilty on a manslaughter charge. I explained to him that this would not be possible. In the United States, we have the concept of double jeopardy, which comes to us from the 5th Amendment to the Constitution.

The 5th states as follows:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The part I have bolded is where we get double jeopardy. A state can only charge someone one time for the same crime. That includes what are known as lesser included offenses for the same crime. A lesser included offense means charges that fall under the umbrella of the greater offense. There are some exceptions, mainly for mistrials and appeals, but once a trial is completed and a defendant is found guilty or not guilty, the state is done with its efforts to convict the defendant of a particular crime.

Charges Against Zimmerman

In the case of Zimmerman, while the prosecution only listed second degree murder in its charges, all lesser included offenses are assumed to be charged as well. Therefore, the jury can find Zimmerman guilty of second degree murder, or they can find him guilty of related lesser included offenses.

It is actually quite common for a prosecutor to go for the highest level charge she feels she can prove, with the understanding that if she cannot prove the greatest charge, a lower charge might stick with the jury. Now, this isn’t always the case. In some states the prosecutor must specifically state all charges, but Florida allows for automatic inclusion of lesser included offenses.

What are the Included Offenses of Murder in Florida?

  1. First degree murder (premeditated) 782.04(1)
  2. Second degree murder (Depraved mind) 782.04(2) – Zimmerman’s charge
  3. Manslaughter 782.07
  4. Second degree (felony murder) 782.04(3)
  5. Third degree murder (felony)  782.04(4)
  6. Vehicular homicide 782.071

After the above six charges come the non-homicide lesser included offenses. They are:

  1. Attempt
  2. Culpable negligence
  3. Aggravated battery
  4. Aggravated assault
  5. Battery and assault

So, essentially, Zimmerman is charged with each of the crimes from second degree murder on down, except of course for any crimes that are clearly not relevant, such as vehicular homicide.

Jury Instructions

Once both the prosecutor and the defense have concluded their arguments, the jury will be charged by the judge.  The jury charge is a series of instructions to help the jury understand what it needs to do during its deliberations. It is at that point that the prosecutor and/or the defense will request an instruction to tell the jury that Zimmerman can also be found guilty of the various lesser included offenses. For a sample of Florida’s standard jury instructions, take a look at the Supreme Court’s sample instructions. The specific instructions for homicide are available here.

Keep in mind, the jury will not receive these instructions exactly.  Most likely both the prosecution and defense will provide instructions they would like to be provided to the jury. Instructions most likely will be argued about before the judge. In the end, a set will be agreed upon and the judge will read them to the jury before they begin their deliberations.

What About Caylee Anthony?

No doubt you are wondering, why wasn’t this the case with Caylee Anthony, the woman alleged to have killed her daughter and then found not guilty? Well, the jury was given instructions that explained some lesser included offenses.  I guess they just weren’t satisfied with the case put on by the prosecution.

Comments

  1. how can the judge instruct the jury on manslaughter when Zimmerman has the defense of self defense? This would negate the statute’s wording of what is required for manslaughter?

    • Hi Elyse, good question. The judge would instruct the jury on manslaughter and also on self defense. The jury, in its analysis will look at whether Zimmerman successfully proved self defense based on that statute’s requirements. They will also look at whether the prosecutor proved, beyond a reasonable doubt, any of the offenses from Murder 2 on down for which he could be appropriately charged. An instruction on one does not negate the instruction on the other. What it does do is let the jury know the law for both and leave it up to them to decide what the verdict should be.

  2. Loren Drebin says:

    If the primary charge had been manslaughter, would the prosecution’s strategy and presentation been possibly different?

    • It is always unfair to second guess a lawyer, especially when I wasn’t in the courtroom and did not watch the entire trial. That said, yes, most likely the focus of the prosecutor and the way in which the case was tried would have been different had the goal always been manslaughter.

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