WHAT IS A “LESSER INCLUDED” OFFENSE

Before a person can be forced to go to trial on a felony charge (what is a felony, see my prior post)he or she must be indicted by a Grand Jury or agree to the entry of an Information. Both the Indictment and Information are formal charging documents which set out what crime(s) the person is alleged to have committed. Very few people agree to an Information unless they are agreeing to it as part of an overall plea bargain. For example the District Attorney might agree to a plea to a minor charge if the person agrees to an Information. The minor crime may also be a lesser included crime.

Each crime is made up of elements. Before a person can be convicted the prosecution must prove each element exists and was committed by the defendant beyond a reasonable doubt. In the case of Grand Larceny the prosecution must prove beyond a reasonable doubt that the person (1) took the personal properly of another, (2) worth over $500.00 dollars, (3) with the intent to permanently keep the property. Those are the elements. Many crimes have lesser included crimes within them. In the example I gave above, Petit Larceny is the lesser included crime of Grand Larceny. If the prosecution did not prove the property was worth over $500.00 then the jury could return a lesser conviction of misdemeanor Petit Larceny.

Many criminal offenses have lesser included offenses which are misdemeanors. In the case of Burglary, a lesser included offense is trespass. But not all lesser included offenses are misdemeanors. There are serious felonies that have other felonies that are lesser included offenses. In the case of Murder, Manslaughter can be a lesser included offense. If the prosecution is trying to prove Murder, the jury may only believe that the crime is manslaughter and return a guilty verdict of manslaughter, which has a less severe punishment. So, lesser included crimes are crimes that have some of the elements of the greater crimes, but not all. I think of lesser included crimes as the “children” of the greater crime.

Anytime a lawyer defends a person he must carefully study the offense and all lesser included crimes. You can never tell what may happen in a case or how the evidence and testimony may appear until you are actually in the Courtroom. If the evidence raises the opportunity for offering a lesser included offense, it may be a benefit to the accused. Experience is the best teacher for complex, strategic issues like lesser included offenses. In a recent case we took over a murder appeal from a lawyer who had very little appeal experience and not much trial experience. The client had been tried on a murder charge. In our opinion the “Castle Doctrine” should have been raised as a defense and a manslaughter instruction should have been offered. Manslaughter would have been a lesser included offense. Unfortunately the lawyer did neither and we are now doing the appeal.

The attorneys at Coxwell & Associates are experienced criminal defense attorneys who work together to help bring about the best result for the client. Each attorney is dedicated to his career and loyal to our client’s case. Feel free to call for a consultation and put experience to work for you.

Disclaimer: This blog is intended as general information purposes only, and is not a substitute for legal advice. Anyone with a legal problem should consult a lawyer immediately.

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