What is a 'Lesser Included Offense' in Criminal Law?

A crime is considered a lesser included offense when a defendant couldn't have committed the greater, and more serious, crime without also committing the lesser offense. This means that lesser included offenses are crimes that are contained within greater criminal charges. The laws dealing with lesser included offenses vary from state to state, and both prosecutors and criminal defense attorneys sometimes have good reason to either advocate for or argue against juries being informed about them. The U.S. Supreme Court has ruled that judges must instruct juries about lesser included offenses in capital murder cases, but in other situations these issues are usually dealt with by reviewing charging documents, studying evidence or examining the elements of the crimes involved.

Examples of Lesser Included Offenses and Greater Offenses

  • Drug possession and drug possession with the intent to distribute
  • Unlawful entry and burglary
  • Kidnapping and false imprisonment
  • Theft and robbery
  • Assault and rape
  • Manslaughter and murder

The Merger Doctrine

The Fifth Amendment to the U.S. Constitution provides that no criminal defendant can be prosecuted for the same crime twice, and the merger doctrine is generally applied in cases involving lesser included offenses to avoid double jeopardy problems. When the merger doctrine is applied, criminal defendants are charged only with the greater offense, but there are notable exceptions to this general rule. For example, criminal charges for conspiring to commit a crime and for actually committing that crime are not merged, as a charge of conspiracy to commit a crime is not necessarily a lesser included offense.

Lesser Included Offenses in Capital Murder Cases

The U.S. Supreme Court has ruled that juries must be allowed to consider lesser included offenses in capital murder cases. The nation’s highest court held that imposing the death penalty is unconstitutional when juries have not been allowed to consider lesser included offenses. The 1980 case involved an Alabama law that prohibited judges from giving juries the option of convicting on lesser included offenses when the death penalty was involved. Prior to the Supreme Court ruling, Alabama juries in these situations had to either impose the death penalty or acquit the defendant. The Supreme Court ruled that such laws could encourage juries to convict defendants of more serious crimes than they actually committed to prevent them from going free.

Determining if a Crime is a Lesser Included Offense

Prosecutors and criminal defense attorneys often argue vigorously about whether or not a reduced charge is a lesser included offense, and judges will generally refer to state laws and established precedent when making these decisions. However, judges may also apply a number of tests to determine if this legal standard has been met.

The Pleadings Test

In some situations, judges may be able to decide lesser included offense arguments by studying the charging documents involved. Charging documents contain information about how crimes were committed, and they may be all that is required to resolve issues when the facts involved are straightforward. The charge of theft would be a lesser included offense when a defendant is accused of committing burglary because it is not possible to commit the greater crime without also committing the lesser crime.

The Evidence Test

Judges may also review the evidence before deciding whether or not a crime is a lesser included offense. When prosecutors present medical evidence indicating that a crime victim was raped, the judge may rule that a charge of the lesser included offense of assault is appropriate.

The Elements Test

The elements test is the most commonly used method to identify lesser included offenses. In a 2000 case, the Supreme Court ruled that all of the elements of a lesser crime must also be elements of the greater crime for it to be considered a lesser included offense.

Applying the pleadings, evidence and elements tests may sometimes lead to different conclusions. The pleadings and evidence tests would suggest that a lesser included charge of assault with a deadly weapon is appropriate when charging documents or ballistic evidence suggest that a murder victim died of gunshot wounds, but the elements test would lead to a different conclusion when the greater charge of murder lacks one of the key elements of an assault with a deadly weapon charge. This is because it is possible to murder an individual without using a weapon like a gun or a knife.

Speak With an Experienced Criminal Defense Attorney Today

An arrest and conviction can change everything. Fines or time in jail are the immediate concern, but a conviction will also mean a criminal record that can make it harder to find a job and housing for years to come. If you are arrested or learn you are under investigation, the first thing you should do is contact an experienced criminal defense attorney. You can search LawInfo’s legal directory to find a local criminal defense attorney who can protect your rights and help you determine the best way to proceed with mounting a defense.

Your Next Step:

Enter your location below to get connected with a qualified Criminal Defense attorney today.

Additional Criminal Defense Articles

Related Topics In This Section