Also known as: lesser but included offense · lesser-included offense · lesser included offense · LIO
Written by attorneys · grounded in primary & secondary sources — see below
A criminal offense whose elements are all necessarily contained within a greater offense. Proof of the greater offense therefore establishes every element of the lesser. A conviction on the lesser included offense constitutes an acquittal of the greater offense even if the lesser conviction is later vacated.
After a jury convicted Quinn only of unauthorized resale and returned no verdict on the felony conspiracy count, the trial court vacated the resale conviction for an instructional error. The state then refiled the conspiracy charge based on the same ticket scheme. Because the lesser conviction operated as an acquittal of the greater offense, double jeopardy barred the new prosecution.
Lars Lindstrom was tried for misdemeanor reckless driving arising from a high-speed chase. After jeopardy attached and he was convicted, the state sought to prosecute him for felony vehicular assault based on the identical conduct. The greater offense required no additional proof beyond the lesser plus one extra element, so the prior jeopardy barred the second prosecution.
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Lily Lopez stood trial for felony theft. The jury acquitted her of the felony but convicted her of the lesser included misdemeanor of unauthorized access. After the misdemeanor conviction was reversed on appeal, the state attempted to retry her on the misdemeanor. The prior prosecution for the greater offense already placed her in jeopardy for every included lesser offense, barring the retrial.
Lance Lee pleaded guilty to a lesser included charge of simple possession after the state agreed to dismiss the greater distribution count. When the court later permitted withdrawal of the plea, the state sought to reinstate the distribution charge. The original acceptance of the lesser plea had already resolved the greater offense under double jeopardy principles.
Lena Lawson was convicted of a lesser included drug offense carrying a mandatory term. The sentencing court treated the greater trafficking elements as sentencing factors rather than elements. Because the lesser conviction already adjudicated the core conduct, any attempt to impose punishment based on uncharged greater elements violated the requirement that every element be proved to the jury.
Leo Lynch was convicted of the lesser included offense of simple assault. At sentencing the judge found a racial-bias fact that raised the penalty to a higher degree. Because that fact was an element of the greater offense, it had to be proved to the jury beyond a reasonable doubt rather than found by the judge.
No. A finding of guilty on the lesser included offense constitutes an acquittal of the greater inclusive offense even when the lesser conviction is later set aside. The acquittal effect survives the vacation and bars reprosecution on the greater charge.
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Jeopardy attaches to the lesser included offense once trial begins. Because the greater offense requires no additional proof beyond the lesser plus extra elements, the Double Jeopardy Clause bars a subsequent prosecution for the greater offense arising from the same conduct.
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Yes. Once jeopardy has attached and the defendant has been prosecuted for the greater offense, the Double Jeopardy Clause prohibits a later prosecution for any lesser included offense based on the same conduct.
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A statute may not prohibit instructions on all lesser included offenses in a capital case because that creates an unacceptable risk that jurors will convict of capital murder rather than acquit entirely. The Constitution does not, however, require instructions on every possible lesser included offense.
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…of the common-law crime. And the common-law crime was, in relation to the statutory one, essentially just like any other lesser included offense. See Archbold 106. Further evidence of the rule that a crime includes every fact that is by law a basis for imposing or increasing punishment comes from early cases addressing recidivism…