Course: Introduction / Criminal Law
A lesser included offense is a crime that makes up part of the legal definition of a more serious offense, such as breaking and entering that some burglary statutes require.
A lesser-included offense is a crime that is a subset of a more serious offense. It means that the less serious crime shares some of the same elements as the more serious crime, but not all. For example, the crime of assault is an included offense of the crime of murder. Assault involves the intentional or reckless causing of bodily injury to another person, while murder involves the intentional killing of another person with malice aforethought.
The concept is important in criminal law because it can provide a way for a defendant to be convicted of a lesser crime if the prosecution cannot prove all the elements of the more serious crime. For example, if the prosecution charges a defendant with murder but cannot prove that the defendant acted with malice aforethought, the jury may be able to find the defendant guilty of the included offense of manslaughter instead.
In some cases, the lesser offense may be charged by the prosecutor instead of the more serious offense. This can happen when the evidence suggests that the defendant did not commit the more serious crime but did commit the lesser offense. In such cases, the prosecutor may charge the defendant with the lesser included offense to increase the likelihood of a conviction.
Many jurisdictions have rules about when a defendant can be convicted of an included offense. Some states require the jury to acquit the defendant of the more serious offense before they can consider the lesser included offense. Other states allow the jury to consider the lesser included offense even if they cannot reach a unanimous decision on the more serious offense.
The Model Penal Code provides guidelines for when a defendant can be convicted of a lesser included offense. Under the Model Penal Code, a defendant can be convicted of a lesser included offense if the lesser offense is a natural and probable consequence of the more serious offense. In addition, the jury must be instructed on the lesser included offense if there is a rational basis for a verdict convicting the defendant of the lesser offense.
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Last Modified: 04/10/2023