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If a judge imposed two consecutive sentences, which of the following would most likely violate the Double Jeopardy Clause?
(A) The two crimes were part of a single criminal episode.
(B) The two crimes arose out of the identical criminal conduct, and the judge imposed a sentence on each of them.
(C) The two crimes arose out of a single criminal episode, and the trial judge imposed a sentence which was longer than he could have imposed for the more serious of the two offenses.
(D) One crime is a lesser included offense of the other.
The Answer is : D.
The correct answer is choice (D). The most likely violation of the Double Jeopardy Clause is the imposition of two consecutive sentences where one offense is a lesser included offense of the other; in that case every element of the lesser offense is also an element of the greater offense. To avoid a double jeopardy violation, each crime must require proof of at least one element that the other does not.
Choice (A) is incorrect because two crimes committed as part of the same criminal episode are not always the “same offense” for purposes of double jeopardy. For instance, the robbery of two persons at the same time is two separate offenses.
Choice (B) is incorrect for the same reason as choice (A): two offenses may arise out of the same criminal conduct.
Choice (C) is incorrect. Again, if the offenses were not the “same offense,” they may be separately punished and the severity of the sentences, separately or together, is irrelevant to the double jeopardy issue.
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