Cite as: 509 U. S. 688 (1993)
Opinion of White, J.
"unjustified" because prosecutors "have little to gain and much to lose" from bringing successive prosecutions and because "the Government must be deterred from abusive, repeated prosecutions of a single offender for similar offenses by the sheer press of other demands upon prosecutorial and judicial resources," ante, at 710-711, n. 15, is to get things exactly backwards. The majority's prophesies might be correct, and double jeopardy might be a problem that will simply take care of itself. Not so, however, according to the Constitution, whose firm prohibition against double jeopardy cannot be satisfied by wishful thinking.
C
Further consequences—at once illogical and harmful— flow from Justice Scalia's approach.9 I turn for illustration once more to Foster's assault case. In his second prosecution, the Government brought charges of assault with intent to kill. In the District of Columbia, Superior Court Criminal Rule 31(c)—which faithfully mirrors its federal counterpart, Federal Rule of Criminal Procedure 31(c)—provides that a "defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense." This provision has been construed to require the jury to determine guilt of all lesser included offenses. See Simmons v. United States, 554 A. 2d 1167 (D. C. 1989). Specifically, "[a] defendant is entitled to a lesser-included offense instruction when (1) all elements of the lesser offense are included within the offense charged, and (2) there is a sufficient evidentiary basis for the lesser charge." Rease v. United States, 403 A. 2d 322, 328 (D. C. 1979) (citations omitted).
Simple assault being a lesser included offense of assault with intent to kill, cf. Keeble v. United States, 412 U. S. 205
9 Similar results follow, of course, from The Chief Justice's interpretation of the Clause.
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