Most clients struggle when they first hear about the concept of multiplicity.
In United States v. Campbell, 71 M.J. 19 (C.A.A.F. 2012), the court reiterated the distinction between the concepts of multiplicity and unreasonable multiplication of charges. Campbell, 71 M.J. at 23.
“The prohibition against multiplicity is necessary to ensure compliance with the constitutional and statutory restrictions against Double Jeopardy …” United States v. Quiroz, 55 M.J. 334, 337 (C.A.A.F. 2001)).
“The Fifth Amendment protection against double jeopardy provides that an accused cannot be convicted of both an offense and a lesser-included offense.” United States v. Hudson, 59 M.J. 357 (C.A.A.F. 2004)(citations omitted); see also Article 44, UCMJ, 10 USC § 844 (2012). Double jeopardy protection extends to prevent multiple punishments for the same offense at a single criminal trial. Ball v. United States, 470 U.S. 856 (1985); Ohio v. Johnson, 467 U.S. 493 (1984).
The test to determine whether two offenses are factually the same, and therefore are greater and lesser-included offenses to each other, is the “elements” test. United States v. Foster, 40 M.J. 140, 142 (C.M.A. 1994). See also United States v. Jones, 68 M.J. 465, 470 (C.A.A.F. 2010); United States v. Leak, 61 M.J. 234 (C.A.A.F. 2005). Under this test, the court considers “whether each provision requires proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304 (1932). “[T]hoses elements required to be alleged in the specification, along with the statutory elements, constitute the elements of the offense for the purpose of the elements test.” United States v. Weymouth, 43 M.J. 329, 340 (C.A.A.F. 1995).
“By contrast, the prohibition against unreasonable multiplication of charges addresses those features of military law that increase the potential for overreaching in the exercise of prosecutorial discretion.” Quiroz, 55 M.J. at 337. The analysis for unreasonable multiplication of charges claims is guided by a list of non-exclusive factors enumerated in Quiroz. No one factor is a prerequisite, and one or more of the factors can be sufficiently compelling to warrant relief. “[T]he concept of unreasonable multiplication of charges may apply differently to findings than to sentencing.” Campbell, 71 M.J. 23. “In summary, at trial three concepts may arise: multiplicity for double jeopardy purposes; unreasonable multiplication of charges as applied to findings, and unreasonable multiplication of charges as applied to sentence.” Id. at 24.
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