A hybrid offence, dual offence, Crown option offence, dual procedure offence, or wobbler are the special class offences in the common law jurisdictions where the case may be prosecuted either summarily or as indictment. In the United States, an alternative misdemeanor/felony offense (colloquially known as a wobbler) lists both county jail (misdemeanor sentence) and state prison (felony sentence) as possible punishment.
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English law
In English criminal law a hybrid offence is called a "triable-either-way offence" and can be heard at either the Magistrates' Court or Crown Court. The decision as to which court will hear the case is determined at a Mode of Trial hearing.
The magistrates decide if the case is suitable to be heard in the Magistrates' Court. If they decide that the case is either too serious or too complex, they can send the case to the Crown Court in which case the defendant has no say in the matter. If the magistrates decide that the case is suitable to be heard by them then the defendant is asked for consent to do so. The defendant can then either consent to be tried by the magistrates or opt for trial by jury at the Crown Court provided that they have pleaded not guilty, if they have pleaded guilty then they have no say in the matter.
If the defendant is tried summarily in the Magistrates' Court and is convicted, there may still be a committal to the Crown Court for sentencing if the magistrates think that their sentencing powers are inadequate.
Scots law
In Scots law, all common law offences other than those within the exclusive jurisdiction of the High Court of Justiciary (ie murder, treason, rape and breach of duty by magistrates)[1] can be tried either summarily in the District Courts of Scotland (including justice of the peace courts) or Sheriff Courts, or on indictment in the High Court of Justiciary or Sheriff Court. For statutory offences, the statute will provide whether the offence is triable summarily, on indictment, or both.
The choice of forum is a matter for the Lord Advocate and procurator fiscal, and is determined in a process known as marking.
U.S. law
In the U.S. states, if the underlying offense is a wobbler, the prosecuting attorney has discretion in deciding which category to charge the defendant. Prosecutors may strategically file such offenses as felonies, agreeing to refile the charge as a misdemeanor should the defendant consent to a guilty plea.
After hearing evidence at a preliminary hearing, the judge or magistrate has discretion to reduce a felony wobbler to a misdemeanor charge; the opposite is not permitted.
In juvenile court, after a minor is declared to be delinquent following a bench trial or open plea, the judge may classify a wobbler felony as a misdemeanor instead.
Canadian law
The power to choose under which class a hybrid offence will be tried rests with the crown counsel. Hybrid offences can either be summary offences (minor crimes) or indictable offences (major crimes)[2]. For most indictable offences, a person has the right to trial by jury.
References
- ^ Criminal Procedure (Scotland) Act 1995, section 3
- ^ "Offence classification - summary conviction or indictable?". http://www.criminal-lawyer.on.ca/classification.html. Retrieved 2008-11-07.
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