What Is a Lesser Included Offense?

Anyone who is a fan of true crime shows or has been involved in criminal law has probably heard the term “lesser included offenses.” Prosecutors use lesser-included offenses for plea bargaining. During jury deliberations, jurors sometimes have the option of convicting a defendant of a lesser included offense instead of the greater offense.

What does this mean, exactly? Well, a lesser offense is a completed offense that is part of the charged offense. If the greater offense contains all of the elements of the lesser crime, then the lesser crime is a lesser included offense.

Elements of Crimes

Proving a crime beyond a reasonable doubt requires proving that the defendant committed all the steps necessary for a criminal offense. These steps are referred to as the “elements” of the offense.

For example, proving felony murder requires showing that the defendant:

• Committed a qualifying dangerous felony, such as robbery, burglary, or kidnapping
• Someone died during the commission of that felony

If the qualifying felony is robbery, then the prosecution must also show that the defendant took the property of another person by force or threat of force. Because proving felony murder requires proving all the elements of robbery, including the death, robbery is a lesser-included offense of felony murder. This means if the jury believes the defendant committed the robbery but finds reasonable doubt whether the death happened during or resulting from the act, they can convict on robbery alone rather than felony murder.

All crimes consist of a list of elements. Prosecutors must prove all these elements to establish the commission of a serious crime, but many crimes share the same set of elements.

Sample Included Offenses: Burglary

In most states, the crime of burglary involves intentionally entering a building with the intent to commit a felony within. The two key elements of burglary are:

• Deliberately entering a building (the intentional act, or “actus reus”)
• The mental state (“mens rea”) of intending to commit a crime inside the building

Other crimes also share these elements. These are lesser-included crimes. Prosecutors might initially charge burglary, but could include the lesser-included offense of criminal trespass as an option for the jury. The two offenses are similar, but not the same:

• Burglary: unlawful entry into a building with the intent to commit a felony inside
• Criminal trespass: unlawfully entering a building

The jury must choose to convict on burglary, criminal trespass, or neither. They cannot convict on both charges for the same act. A defense attorney might arrange a guilty plea to criminal trespass to avoid the risk of a burglary conviction at trial.

Double Jeopardy and Lesser Included Offenses

Double jeopardy is the legal theory that prevents the state from trying an individual twice for the same offense. In the legal process, this means that a conviction for a lesser crime prevents prosecutors from trying the defendant later for the greater crime, and vice versa.

In criminal procedure, this means prosecutors must exercise caution when deciding which charges to file. Convicting on a lesser-included offense bars later prosecution for the greater offense arising from the same conduct.

For instance, if there is insufficient evidence to prove first-degree murder (which requires premeditation), prosecutors may hesitate to immediately charge a lesser degree of homicide like second-degree murder or voluntary manslaughter. If they charge the lesser offense first and secure a conviction, they cannot later pursue the greater charge of first-degree murder if new evidence emerges.

If a defendant is convicted of a lesser-included offense of voluntary manslaughter, they cannot later be tried for murder based on the same killing. A conviction on the lesser-included offense bars prosecution for the greater offense. This is why prosecutors are slow to charge serious crimes without clear evidence.

Get Legal Advice From a Criminal Defense Lawyer

Lesser included offenses appear in every type of criminal case. Prosecutors use them as leverage to plead down felonies to misdemeanors. Defense attorneys depend on them to negotiate serious offenses down to simple assault or other charges.

The rules of lesser-included offenses can vary by jurisdiction. If you face any criminal charges and need an explanation about a lesser included offense, contact a criminal defense lawyer in your area. They can help protect your rights, negotiate with prosecutors, and represent you at trial if necessary.