A crime is considered a “lesser included offense” when someone couldn’t have committed a greater and more serious crime without also committing a lesser offense.

Simply put, lesser included offenses are crimes included within greater criminal charges. The laws dealing with lesser included offenses vary by state. A typical example is trespassing or unlawful entry being a less serious charge when someone commits burglary.

Examples of Lesser Included Offenses With Greater Offenses

The following are common lesser included charges that go hand-in-hand when someone commits a crime:

• 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

Assault with a Deadly Weapon Charges

One of the most common examples of a lesser included offense is assault with a deadly weapon. This charge will be added to most cases that involve:

• Firearms, whether loaded or unloaded
• Knives or axes
• Bludgeons or blunt objects like hammers or other tools
• Any item, device, instrument, material, or substance that can cause death or severe injury

Deadly weapons can be everyday things used as a weapon during the assault. Cases that involve homicide, stabbing, or other gun-related crimes typically involve an assault with a deadly weapon charge.

Lesser Included Offenses in Capital Murder Cases

The U.S. Supreme Court has a rule that juries must consider lesser included offenses in capital murder cases. This law’s idea is that imposing the death penalty is unconstitutional when juries are not allowed to consider lesser included offenses.

The 1980 case that created this rule involved an Alabama law that prohibited judges from giving juries the option of convicting on lesser included offenses when the death penalty was applied. Before the Supreme Court ruling, Alabama juries in these situations had to either impose the death penalty or acquit the defendant.

The Supreme Court worried such laws could encourage juries to convict defendants of more serious crimes than they actually committed just to stop them from going free.

Determining if a Crime Is a Lesser Included Offense

Prosecutors and criminal defense attorneys often argue vigorously about whether a reduced charge is a lesser included offense.

Judges generally refer to state laws and established precedent when making these decisions. They may also apply several tests to determine whether a charge is a lesser included offense.

The Pleadings Test

In some situations, judges will rule on lesser included offense arguments by studying the “charging documents” involved.

Charging documents contain information about how the defendant allegedly committed the offense. They may be all that is necessary to resolve issues when the facts are straightforward.

For example, theft is a lesser included offense when a defendant is accused of committing burglary because it is not possible to commit burglary without also committing theft.

The Evidence Test

Judges may also review the evidence before deciding whether a crime is a lesser included offense.

When prosecutors present medical evidence indicating that a victim was raped, the judge may rule that a lesser included offense of assault is also 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 a lesser crime’s elements must also be elements of the greater crime to be considered a lesser included offense.

Applying These Tests to a Case

Applying the pleadings, evidence, and elements tests may sometimes lead to different conclusions. For example:

• The pleadings and evidence tests would suggest using a lesser included charge of assault with a deadly weapon. They would claim this is appropriate when charging documents or ballistic evidence suggest that a murder victim died of gunshot wounds.
• The elements test would lead to a different conclusion if the greater charge of murder lacks one of the key elements of an assault with a deadly weapon charge.

These different conclusions are possible because you can murder an individual without using a weapon like a gun or a knife.

If you have questions about the greater and lesser charges in your case, your attorney is the right person to talk to. They can help decide a strategy for the case and determine if any lesser included charges are a pro or a con.

‘Instruct the Jury’ Rules in Criminal Cases

Both sides in a criminal case may have good reason to either advocate for or argue against juries being informed of the lesser included charges. This is called “instruct the jury” or jury instructions.

It involves a judge telling the jury what they need to know and can include:

• General information about what is happening in the case or courtroom
• Explaining areas of the law that are relevant to the case
• Explaining details about the evidence presented
• Defining a juror’s duty in reaching a verdict

You may hear this in TV shows or movies as a judge saying something along the lines of: “The jury will disregard that evidence.”

The U.S. Supreme Court ruled that judges must instruct juries about lesser included offenses in capital murder cases. In other situations, these issues are usually dealt with by:

• Reviewing charging documents
• Studying evidence
• Examining the elements of the crimes involved

The Merger Doctrine

The Fifth Amendment to the U.S. Constitution says no criminal defendant can be prosecuted for the same crime twice. This is called “double jeopardy.”

The merger doctrine is a legal theory applied in cases involving lesser included offenses. This helps avoid double jeopardy problems.

When the merger doctrine is applied, criminal defendants are charged only with the greater offense.

For example, instead of charging someone with theft and robbery, the case will focus only on the robbery charge.

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. This is because a charge of conspiracy to commit a crime is not necessarily a lesser included offense.