What Does 'Lesser Included Offense' Mean in Criminal Law?

When a person commits several different criminal acts, it makes sense for them to face multiple criminal charges. But is it possible for one action to lead to more than one criminal charge? Actually, yes.

Sometimes, a criminal defendant’s single action constitutes both a serious crime and a less serious one. Lawyers call this the “lesser included offense” doctrine. This article will provide an overview of the rules concerning lesser included offenses. However, if you or a loved one are facing criminal charges or have questions regarding criminal law, you should contact a criminal defense attorney immediately.

What Is a Lesser Included Offense?

Simply put, a lesser included offense is one included within a greater crime. Like Russian nesting dolls, a lesser included offense is one that “fits inside” of another, more serious crime.

To better understand this concept, let’s look at how crimes work. Every crime is composed of elements. To secure a conviction at trial, a prosecutor must prove each element of the crime beyond a reasonable doubt. For example, the elements of larceny (theft) are:

• The unlawful
• Taking and
• Carrying away
• Of the personal property
• Of another
• With the intent to permanently deprive the owner of the property

The elements of robbery are:

• The unlawful
• Taking and
• Carrying away
• Of the personal property
• Of another
• From the person or presence of the victim
• By force or by the threat of force or violence
• With the intent to permanently deprive the owner of the property

Looking at both, even though it has additional elements, robbery includes every element of larceny. As such, larceny is a lesser included offense of robbery.

Examples of Lesser Included Offenses Within Greater Offenses

Lesser included offenses occur often. Most jurisdictions consider attempted crimes to be lesser offenses of completed crimes. In jurisdictions that divide crimes by degrees, second- and third-degree crimes are often lesser offenses of first-degree offenses.

Other examples of lesser included offenses are:

• Drug possession and drug possession with the intent to distribute
• False imprisonment and kidnapping
• Assault and sexual assault
• Voluntary manslaughter and murder

These examples, however, must be taken with a grain of salt. Each state has laws that define lesser included offenses. So, despite these examples, whether a criminal charge is a lesser included offense depends heavily on state law.

Deciding Whether a Crime Is a Lesser Included Offense

In a criminal case, it’s up to the judge to decide whether a crime is a lesser included offense. To make this decision, judges look at both state statutes and established case law in the jurisdiction. These laws and cases apply several tests to determine whether a charge is a lesser included offense. These include:

• The pleadings test: In this test, judges look at the charging document in the case. (The charging document is the indictment or information that lists the criminal charges.)
• The evidence test: In this test, judges review the evidence in the case. If the evidence supports both crimes, one is likely a lesser included offense of the other.
• The elements test: The elements test is the most common way to identify lesser included offenses. (It’s the one we used above when comparing larceny and robbery.)

Applying these tests may sometimes lead to different conclusions. Let’s consider a case where someone kills a person with a gun. Is assault with a deadly weapon a lesser included offense of murder? Because the elements of murder do not mention a gun, the elements test fails. But if the indictment says that a gun was used or the ballistic evidence shows that the victim died of gunshot wounds, the pleadings and evidence tests could lead to a different outcome.

Why Lesser Included Offenses Matter

Lesser included offenses can affect a criminal case in several ways.

Plea Bargains

Lesser included offenses give prosecutors considerable leverage during the plea bargaining process. After charging a defendant with a serious criminal offense, prosecutors often offer a plea deal on a lesser offense. Many defendants plead guilty to the lesser charge to avoid going to trial on the greater charge.

Trial Strategy

Lesser included offenses can also drive a prosecutor’s approach to the trial. If they can’t secure a guilty plea and aren’t confident about getting a conviction on the greater crime, many prosecutors choose to drop the greater charged offense and go to trial on the lesser charge.

Jury Instructions

During a criminal trial, the jury decides guilt. But it’s up to the judge to instruct the jury before their deliberations. Prosecutors and criminal defense lawyers often argue vigorously about whether the jury should be instructed about lesser included offenses.

Prosecutors tend to request lesser included offense instructions when their case on the greater charge is weak. Giving the jury a choice increases their chances of convicting the defendant of something. Defense attorneys typically request the instruction to help the defendant avoid conviction on a greater charge and a harsher sentence.

After listening to arguments from both sides, the judge will make a decision. There are some areas, however, where the judge has no discretion. The U.S. Supreme Court has ruled that judges must instruct juries about lesser included offenses in death penalty cases.

Double Jeopardy

The Fifth Amendment to the U.S. Constitution says that a criminal defendant cannot be prosecuted for the same crime twice. This doctrine is called “double jeopardy.”

Lesser included offenses often raise double jeopardy issues. To avoid this, criminal law uses something called the merger doctrine. Under the merger doctrine, when a defendant is convicted or acquitted of the greater crime, they can’t be tried later on the lesser offense. Merger issues are very complicated and should be discussed with your criminal defense attorney.

Have You Been Charged With a Crime?

Being charged with a criminal offense can affect every aspect of your life. If you’re convicted, your freedom will be at stake. If you’ve been charged with a crime, you need legal help. Find an experienced criminal defense lawyer near you who can help you defend your freedom.