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Inaccurate Election of Offenses Not Plain Error in This Case

Election of offenses in a criminal trial refers to a prosecutor's duty, in a case where there was evidence at trial of multiple separate incidents which might meet the elements of the charged offense, to elect, for each count, upon which specific incident the jury should deliberate to determine guilt of that count. The purpose of this is to protect a defendant's right to a unanimous verdict in determining whether the defendant's conduct on a specific occasion meets the elements of a particular charged offense (rather than having some jurors evaluating the events of one occasion and other jurors evaluating the events of another instead). In the recent case of State v. Knowles, W2013-00503-SC-R11-CD (Tenn. 7-31-2015), the Tennessee Supreme Court affirmed a conviction for rape of a child, despite a clearly inaccurate election of offenses.

Election of Offenses Properly Made

In a criminal trial, where evidence is presented of multiple separate acts, any of which could satisfy the elements of a particular charge, the State is required to clarify for the jury which particular acts the State is relying upon to prove the necessary elements of a charge. This is called election of offenses. Its purpose is to help ensure a unanimous verdict on specific criminal conduct. Otherwise, there is potential for jurors to agree on guilt without agreeing on what facts establish the guilt. The election of offenses can be made simply within the prosecutor's closing argument, explaining which facts the State is relying upon for a particular charge. In the recent case of State v. Kromah, M2011-01813-CCA-R3-CD (Tenn.Crim.App. 3-1-2013), the Court of Criminal Appeals determined from the appellate record that an election had properly been made.

Election of Offenses Properly Made

In a criminal trial, where evidence is presented of multiple separate acts, any of which could satisfy the elements of a particular charge, the State is required to clarify for the jury which particular acts the State is relying upon to prove the necessary elements of a charge. This is called election of offenses. Its purpose is to help ensure a unanimous verdict on specific criminal conduct. Otherwise, there is potential for jurors to agree on guilt without agreeing on what facts establish the guilt. The election of offenses can be made simply within the prosecutor's closing argument, explaining which facts the State is relying upon for a particular charge. In the recent case of State v. Kromah, M2011-01813-CCA-R3-CD (Tenn.Crim.App. 3-1-2013), the Court of Criminal Appeals determined from the appellate record that an election had properly been made.

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