Lesser included offense

Lesser included offense

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.

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 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).

Use in jury proceedings

In criminal jury trials, 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.[1] 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.

References

  1. ^ Beck v. Alabama, 447 U.S. 625 (1980), overturning an Alabama law prohibiting lesser included offense instructions in capital cases.

Wikimedia Foundation. 2010.

Игры ⚽ Нужна курсовая?

Look at other dictionaries:

  • lesser included offense — lesser in·clud·ed offense n: a crime (as unlawful entry) that is by definition included in the commission of another crime (as burglary) which has additional elements and greater criminal liability – called also included offense; ◇ A criminal… …   Law dictionary

  • lesser-included offense — n.    in criminal law, a crime which is proved by the same facts as a more serious crime. Example: Ignatz Itchy Fingers is charged with armed robbery, but the prosecution fails to prove Itchy used his pistol since the victims do not recall the… …   Law dictionary

  • lesser included offense — One which is composed of some, but not all elements of a greater offense and which does not have any element not included in greater offense so that it is impossible to commit greater offense without necessarily committing the lesser offense.… …   Black's law dictionary

  • lesser included offense — One which is composed of some, but not all elements of a greater offense and which does not have any element not included in greater offense so that it is impossible to commit greater offense without necessarily committing the lesser offense.… …   Black's law dictionary

  • lesser included offense — noun a crime the elements of which coincide with the elements of a more serious crime, from which the prosecutor is therefore precluded from separately charging a criminal defendant Example: A robbery is an assault combined with a theft; a person …   Wiktionary

  • included offense — in·clud·ed offense n: lesser included offense permitted...to plead guilty to a logical included offense W. R. LaFave and J. H. Israel Merriam Webster’s Dictionary of Law. Merriam Webster. 1996 …   Law dictionary

  • necessarily included offense — For a lesser offense to be necessarily included in offense charged, within lesser included offense rule, it must be such that the greater offense cannot be committed without also committing the lesser. Kelly v. U. S., 125 U.S.App.D.C. 205, 370… …   Black's law dictionary

  • necessarily included offense — For a lesser offense to be necessarily included in offense charged, within lesser included offense rule, it must be such that the greater offense cannot be committed without also committing the lesser. Kelly v. U. S., 125 U.S.App.D.C. 205, 370… …   Black's law dictionary

  • included offense — In criminal law, a crime which is part of another crime; e.g. included in every murder is assault and battery. One which is established by proof of the same or less than all of the facts, or a less culpable mental state, or both, than that which… …   Black's law dictionary

  • included offense — In criminal law, a crime which is part of another crime; e.g. included in every murder is assault and battery. One which is established by proof of the same or less than all of the facts, or a less culpable mental state, or both, than that which… …   Black's law dictionary

Share the article and excerpts

Direct link
Do a right-click on the link above
and select “Copy Link”