Lesser Included Offense

A lesser crime whose elements are encompassed by a greater crime.

A lesser included offense shares some, but not all, of the elements of a greater criminal offense. Therefore, the greater offense cannot be committed without also committing the lesser offense. For example, Manslaughter is a lesser included offense of murder, assault is a lesser included offense of rape, and unlawful entry is a lesser included offense of Burglary.

The rules of Criminal Procedure permit two or more offenses to be charged together, regardless of whether they are misdemeanors or felonies, provided that the crimes are of a similar character and based on the same act or common plan. This permits prosecutors to charge the greater offense and the lesser included offense together. Although the offenses can be charged together, the accused cannot be found guilty of both offenses because they are both parts of the same crime (the lesser offense is part of the greater offense).

When a defendant is charged with a greater offense and one or more lesser included offenses, the trial court is generally required to give the jury instructions as to each of the lesser included offenses as well as the greater offense. However, a defendant may waive his or her right to have the jury so instructed. If the jury finds guilt Beyond a Reasonable Doubt as to a lesser included offense, but finds reasonable doubt as to the defendant's guilt with regard to the greater offense, the court should instruct the jury that it may convict on the lesser charge.

It is not uncommon for a prosecutor and defendant to negotiate an agreement by which the defendant pleads guilty to the lesser included offense either before the trial begins or before the jury returns a verdict. Such a plea negotiation is generally acceptable to the prosecuting attorney because the evidence establishing guilt for the lesser included offense is usually strong. The defendant is generally willing to make such an agreement because the lesser included offense carries a less severe sentence.

The notion of lesser included offenses developed from the common-law doctrine of merger. In the past, felony and misdemeanor trials involved different procedural rights. The merger doctrine determined an individual's procedural rights at trial if the individual was charged with both a felony and a lesser included misdemeanor. In that circumstance the misdemeanor was considered to have merged with the felony, and felony procedural rights applied. The merger doctrine has been repudiated in modern U.S. law because an accused's procedural rights are essentially the same whether the accused is charged with a misdemeanor or a felony.

Further readings

Holten, N. Gary, and Lawson L. Lamar. 1991. The Criminal Courts: Structures, Personnel, and Processes. New York: McGraw-Hill.

Torcia, Charles E., ed. 1993. Wharton's Criminal Law. 15th ed. Vol. 1. New York: Thomson Legal.

——. 1992. Wharton's Criminal Procedure. 13th ed. Vol. 4. New York: Clark Boardman Callaghan.

Cross-references

Criminal Law; Plea Bargaining.