U.S. v. Cardenas, 80 M.J. 420

First Principles: Constitutional Matters: Double Jeopardy

1. multiplicity is grounded in the Double Jeopardy Clause of the Fifth Amendment, which prohibits multiple punishments for the same offense; therefore, the Fifth Amendment protection against double jeopardy provides that an accused cannot be convicted of both an offense and a lesser-included offense

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. courts of criminal appeals may remedy multiplicity error identified on appeal by allowing the government to elect which multiplicious conviction to retain and which to dismiss
2. an appellate court may remedy multiplicity error by either permitting the government to elect which conviction to dismiss or by making the election itself; either remedies the error of a double conviction for the same act

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. an appellate court may remedy multiplicity error by either permitting the government to elect which conviction to dismiss or by making the election itself; either remedies the error of a double conviction for the same act

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. the scope of an appellate court’s authority is a legal question reviewed de novo
2. when asked to overrule one of its precedents, an appellate court must analyze the matter under the doctrine of stare decisis

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Lesser Included Offenses

1. the lesser included offense must not always be dismissed to remedy multiplicity error; while often it is the lesser included offense which is dismissed, where the lesser included offense is the more serious offense because it carries higher punitive exposure, it is not unreasonable for the government to request that the elementally greater offense be dismissed
2. mandating which conviction to dismiss to remedy multiplicity error is not dictated by the Constitution, as dismissing either conviction eliminates the double jeopardy issue; thus, to remedy multiplicity error by permitting the government to elect which multiplicious conviction to retain and which to dismiss ensures a judgment free of the constitutional infirmity of a double conviction for the same act
3. the language in US v. Cherukuri, 53 M.J. 68 (CAAF 2000) that says “dismissal of the lesser-included offense is required by the Supreme Court’s recent cases on the Double Jeopardy Clause of the United States Constitution” is abrogated to the extent it holds that the dismissal of the lesser included offense is required to cure multiplicity error identified on appeal
4. an appellate court may remedy multiplicity error by either permitting the government to elect which conviction to dismiss or by making the election itself; either remedies the error of a double conviction for the same act

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Multiplicity

1. courts of criminal appeals may remedy multiplicity error identified on appeal by allowing the government to elect which multiplicious conviction to retain and which to dismiss
2. multiplicity is grounded in the Double Jeopardy Clause of the Fifth Amendment, which prohibits multiple punishments for the same offense; therefore, the Fifth Amendment protection against double jeopardy provides that an accused cannot be convicted of both an offense and a lesser-included offense
3. mandating which conviction to dismiss to remedy multiplicity error is not dictated by the Constitution, as dismissing either conviction eliminates the double jeopardy issue; thus, to remedy multiplicity error by permitting the government to elect which multiplicious conviction to retain and which to dismiss ensures a judgment free of the constitutional infirmity of a double conviction for the same act
4. the language in US v. Cherukuri, 53 M.J. 68 (CAAF 2000) that says “dismissal of the lesser-included offense is required by the Supreme Court’s recent cases on the Double Jeopardy Clause of the United States Constitution” is abrogated to the extent it holds that the dismissal of the lesser included offense is required to cure multiplicity error identified on appeal
5. an appellate court may remedy multiplicity error by either permitting the government to elect which conviction to dismiss or by making the election itself; either remedies the error of a double conviction for the same act

Miscellaneous Matters: Judicial Review: Stare Decisis

1. when asked to overrule one of its precedents, an appellate court must analyze the matter under the doctrine of stare decisis
2. stare decisis is the doctrine of precedent, under which a court must follow earlier judicial decisions when the same points arise again; adherence to precedent is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process
3. applying stare decisis is not an inexorable command, and an appellate court is not bound by precedent when there is a significant change in circumstances after the adoption of a legal rule, or an error in legal analysis; in evaluating the application of stare decisis, an appellate court considers (1) whether the prior decision is unworkable or poorly reasoned, (2) any intervening events, (3) the reasonable expectations of servicemembers, and (4) the risk of undermining public confidence in the law; as to the first factor, the appellate court considers not whether the interpretation at issue is plausible, but whether the decisions are so unworkable or poorly reasoned that they should be overruled