Lesser included offense
Encyclopedia
A lesser included offense, in criminal law
, is a crime for which all of the elements necessary to impose liability
are also elements found in a more serious crime.
For example, the common law
crime of larceny
requires the taking and carrying away of tangible property from another person, with the intent to permanently deprive the owner of that property. Robbery
, under the common law, requires all of the same elements, plus the use of force or intimidation to accomplish the taking. Therefore, larceny is a lesser included offense in the offense of robbery, as every robbery includes a larceny as part of the crime. Assault is also a lesser included offense of robbery, just as battery
is necessarily a lesser included offense to murder
, and false imprisonment
is usually a lesser included offense to kidnapping
.
Solicitation
to commit a crime and attempt
to commit a crime, although not strictly speaking lesser included offenses, merge into the completed crime. As an important exception, the crime of conspiracy
does not merge into the completed crime. Even if any states were to eliminate the doctrine, a conviction for both an offense and any of its lesser-included offenses would not withstand scrutiny under the Double Jeopardy Clause of the Fifth Amendment to the Constitution of the United States as interpreted by the Supreme Court
in Blockburger v. United States
, 284 U.S. 299 (1932).
s, the court
is permitted (but not required) to instruct jurors
that they can find the defendant
guilty of the most serious crime charged, or of a lesser included offense of that crime (in English law
, this is termed an alternative verdict). In murder
cases, however, where a convicted defendant may face capital punishment
, the Supreme Court has held that the court must instruct the jury that they may find the defendant guilty of a lesser included offense such as voluntary manslaughter
. The reasoning for this ruling is that jurors given the options of convicting a less culpable killer or letting him go free might opt to convict of a more serious crime than the facts warrant. Therefore, they must have at least one option that falls in between these extremes.
In the case where the jury has the option of convicting a defendant
accused of a violation of law where there is a lesser included offense, if the jury acquits
the defendant of the more serious offense but is otherwise unable to reach a verdict
(i.e., is hung
) on the lesser included offense, the defendant may be retried if the prosecutor chooses to do so, but only for the lesser included offense. If the jury finds the defendant not guilty of the lesser included offense, there would be no need to make a determination on the more serious offense as acquittal of a lesser included offense automatically constitutes acquittal of the more serious offense.
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
, is a crime for which all of the elements necessary to impose liability
Legal liability
Legal liability is the legal bound obligation to pay debts.* In law a person is said to be legally liable when they are financially and legally responsible for something. Legal liability concerns both civil law and criminal law. See Strict liability. Under English law, with the passing of the Theft...
are also elements found in a more serious crime.
For example, the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
crime of larceny
Larceny
Larceny is a crime involving the wrongful acquisition of the personal property of another person. It was an offence under the common law of England and became an offence in jurisdictions which incorporated the common law of England into their own law. It has been abolished in England and Wales,...
requires the taking and carrying away of tangible property from another person, with the intent to permanently deprive the owner of that property. Robbery
Robbery
Robbery is the crime of taking or attempting to take something of value by force or threat of force or by putting the victim in fear. At common law, robbery is defined as taking the property of another, with the intent to permanently deprive the person of that property, by means of force or fear....
, under the common law, requires all of the same elements, plus the use of force or intimidation to accomplish the taking. Therefore, larceny is a lesser included offense in the offense of robbery, as every robbery includes a larceny as part of the crime. Assault is also a lesser included offense of robbery, just as battery
Battery (crime)
Battery is a criminal offense involving unlawful physical contact, distinct from assault which is the fear of such contact.In the United States, criminal battery, or simply battery, is the use of force against another, resulting in harmful or offensive contact...
is necessarily a lesser included offense to murder
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
, and false imprisonment
False imprisonment
False imprisonment is a restraint of a person in a bounded area without justification or consent. False imprisonment is a common-law felony and a tort. It applies to private as well as governmental detention...
is usually a lesser included offense to kidnapping
Kidnapping
In criminal law, kidnapping is the taking away or transportation of a person against that person's will, usually to hold the person in false imprisonment, a confinement without legal authority...
.
Merger doctrine
Under the merger doctrine as this term is used in criminal law, lesser included offenses generally merge into the greater offense. Therefore, a person who commits a robbery can not be convicted of both the robbery and the larceny that was part of it.Solicitation
Solicitation
Literally, solicitation means: 'urgently asking'. It is the action or instance of soliciting; petition; proposal. In criminal law, it most commonly refers to either the act of offering goods or services, or the act of attempting to purchase such goods or services...
to commit a crime and attempt
Attempt
Attempt was originally an offence under the common law of England.Attempt crimes are crimes where the defendant's actions have the form of the actual enaction of the crime itself: the actions must go beyond mere preparation....
to commit a crime, although not strictly speaking lesser included offenses, merge into the completed crime. As an important exception, the crime of conspiracy
Conspiracy (crime)
In the criminal law, a conspiracy is an agreement between two or more persons to break the law at some time in the future, and, in some cases, with at least one overt act in furtherance of that agreement...
does not merge into the completed crime. Even if any states were to eliminate the doctrine, a conviction for both an offense and any of its lesser-included offenses would not withstand scrutiny under the Double Jeopardy Clause of the Fifth Amendment to the Constitution of the United States as interpreted by the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
in Blockburger v. United States
Blockburger v. United States
Blockburger v. United States, 284 U.S. 299 , was a case in which the Supreme Court of the United States set an important standard to prevent double jeopardy.-Facts and procedural history:...
, 284 U.S. 299 (1932).
Use in jury proceedings
In criminal jury trialJury trial
A jury trial is a legal proceeding in which a jury either makes a decision or makes findings of fact which are then applied by a judge...
s, the court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
is permitted (but not required) to instruct jurors
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
that they can find the defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
guilty of the most serious crime charged, or of a lesser included offense of that crime (in English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
, this is termed an alternative verdict). In murder
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
cases, however, where a convicted defendant may face capital punishment
Capital punishment
Capital punishment, the death penalty, or execution is the sentence of death upon a person by the state as a punishment for an offence. Crimes that can result in a death penalty are known as capital crimes or capital offences. The term capital originates from the Latin capitalis, literally...
, the Supreme Court has held that the court must instruct the jury that they may find the defendant guilty of a lesser included offense such as voluntary manslaughter
Voluntary Manslaughter
Voluntary manslaughter is the killing of a human being in which the offender had no prior intent to kill and acted during "the heat of passion," under circumstances that would cause a reasonable person to become emotionally or mentally disturbed. In the Uniform Crime Reports prepared by the...
. The reasoning for this ruling is that jurors given the options of convicting a less culpable killer or letting him go free might opt to convict of a more serious crime than the facts warrant. Therefore, they must have at least one option that falls in between these extremes.
In the case where the jury has the option of convicting a defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
accused of a violation of law where there is a lesser included offense, if the jury acquits
Acquittal
In the common law tradition, an acquittal formally certifies the accused is free from the charge of an offense, as far as the criminal law is concerned. This is so even where the prosecution is abandoned nolle prosequi...
the defendant of the more serious offense but is otherwise unable to reach a verdict
Verdict
In law, a verdict is the formal finding of fact made by a jury on matters or questions submitted to the jury by a judge. The term, from the Latin veredictum, literally means "to say the truth" and is derived from Middle English verdit, from Anglo-Norman: a compound of ver and dit In law, a verdict...
(i.e., is hung
Hung jury
A hung jury or deadlocked jury is a jury that cannot, by the required voting threshold, agree upon a verdict after an extended period of deliberation and is unable to change its votes due to severe differences of opinion.- England and Wales :...
) on the lesser included offense, the defendant may be retried if the prosecutor chooses to do so, but only for the lesser included offense. If the jury finds the defendant not guilty of the lesser included offense, there would be no need to make a determination on the more serious offense as acquittal of a lesser included offense automatically constitutes acquittal of the more serious offense.