What Is a Lesser Included Offense?

A lesser included offense is an offense whose required elements are included within the elements of a greater charged offense, under the test used in the applicable jurisdiction. This legal doctrine matters because the outcome of a trial, the decision to take a guilty plea, or other case strategies can hinge on whether you can convict on a lesser offense.

If you or a loved one are facing criminal charges, it’s important to understand the potential outcomes of your case. To find the right criminal defense attorney in your area, visit the Super Lawyers directory and search for a criminal defense attorney.

What Is a Lesser Included Offense?

In criminal law, a lesser included offense is a less serious crime whose elements are entirely part of a more serious crime. If someone commits the greater offense, they have automatically committed the lesser one. Consider these examples:

• Depending on the jurisdiction and the facts, theft may be a lesser included offense of robbery. Robbery generally involves taking or attempting to take property by force, threat, or intimidation, while theft generally requires taking property with the intent to deprive the owner.
• Burglary generally means unlawfully entering a building with the intent to commit a crime inside. If the person also carries a deadly weapon during the burglary, the charge may become more serious, such as aggravated burglary. In that case, burglary can serve as the lesser included offense of the armed burglary charge.
• Homicide cases can also apply this concept. A person charged with murder might instead be convicted of voluntary manslaughter, which is a less serious crime. It shares many of the same elements, but involves different circumstances.

The merger doctrine explains why the smaller crime can fit into the greater crime. The lesser included offense is absorbed into a greater, completed offense so the defendant is not punished twice for the same conduct.

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How Lesser Included Offenses Work in Prosecutions

A single act can support both the charged offense and one or more lesser offenses. In a charging document, prosecutors usually charge the accused with the greater crime that is supported by the evidence.

Then, during trial, either side may ask the judge to have the jury also consider a lesser charge. However, a jury cannot convict on a lesser included crime unless the judge includes it in the jury instructions.

Courts can use different methods to decide whether one crime is truly a lesser offense of another. One common approach is the pleadings test. This test looks at the specific language in the charging document to see whether the greater charge, as written, already contains all the elements of the lesser one.

Proving the Crime: Main Charge vs. Lesser Offense

To obtain a conviction, a prosecutor must prove every element of a crime beyond a reasonable doubt. The elements test determines whether the prosecution has proved what it needs to convict on the charge. The main charge requires proving more or tougher elements, while the lesser included offense requires fewer elements.

Considering the robbery and theft example again, theft drops the “force” element, which makes it easier for the prosecution to prove. If the jury doubts one element of the greater offense, they do not have to vote for an acquittal. They can still find the criminal defendant guilty of the lesser offense. This framework matches the conviction to the proven crime.

Double Jeopardy Implications

Double jeopardy means that a person cannot be tried twice for the same offense. In the context of a lesser offense, a greater offense and its lesser included offense are treated as the “same offense.”

If someone is convicted or acquitted of one, the state generally cannot later prosecute them for the other. For example, a simple assault acquittal may block a later aggravated assault charge that is based on the same act. This rule prevents prosecutors from getting multiple chances to convict the accused for the same conduct.

False imprisonment and kidnapping are well-known examples of lesser included offenses. False imprisonment means holding someone unlawfully against their will. Kidnapping usually includes false imprisonment, plus an added element, such as moving the victim or demanding a ransom.

False imprisonment is a lesser included offense of kidnapping. This means that an acquittal on a kidnapping charge may block a later false imprisonment charge based on the same act.

Requesting Lesser Included Offense Jury Instructions

During trial, litigants face many strategic decisions. Deciding whether to request a lesser included offense instruction is one of the most important strategic calls in a trial. The defense and the prosecution must weigh different considerations.

• Defense attorney considerations. A lesser included offense can reduce the chances of a conviction for a major crime. The trade-off is that it may give the factfinder a chance to compromise and find for a conviction instead of a full acquittal. Sometimes the choice between the greater charge and nothing will pressure the jury toward an acquittal.
• Prosecutor considerations. A lesser included charge provides a kind of insurance policy for the prosecution when the evidence for the greater charge is weak. It can provide a better chance of a conviction. However, requesting those lesser included offense jury instructions may signal doubt about the main charge and lower the potential penalty.

Judges only allow lesser included instructions when the evidence reasonably supports the lesser charge. An experienced criminal defense attorney can help you weigh the options.

Lesser included offenses impact both trial strategy and whether to go to trial at all. Lesser included offenses can influence whether the case ends in a plea bargain.

As part of a plea bargain, the prosecution may agree to a lesser included offense to close out the case and eliminate the risk that the accused will be completely acquitted. Plea bargains are common, so it helps to understand how they work so you can evaluate any offer.

Consult a Criminal Attorney

Whether you or a loved one has been charged with a crime or you seek to learn more about criminal law as it applies to your situation, consult a lawyer. To find the right criminal defense attorney in your area, visit the Super Lawyers directory and search for a criminal defense attorney.