Also known as: lesser included offences · lesser-included offense · lesser included offenses · LIO · lesser included offence · included offense
Written by attorneys · grounded in primary & secondary sources — see below
A crime whose elements form a subset of those required for a greater offense. Conviction of the lesser included offense operates as an acquittal of the greater offense under double jeopardy principles.
Luis Lopez was tried for robbery. The jury returned a guilty verdict only on the lesser included offense of theft. When the state later attempted to prosecute Lopez for robbery on the same facts, the court dismissed the charge because the theft conviction counted as an acquittal of the greater offense.
Leo Lynch faced trial for simple assault. After jeopardy attached and the jury convicted him, the prosecutor sought to charge Lynch with aggravated assault arising from the identical conduct. The court barred the new prosecution because the greater offense required no additional proof beyond the lesser plus extra elements.
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Lorenzo Lugo was acquitted of murder after a full trial. The state then attempted to charge Lugo with manslaughter based on the same stabbing incident. The court dismissed the manslaughter charge because the prior prosecution for the greater offense had already placed Lugo in jeopardy for every lesser included offense supported by the facts.
Latoya Lane stood trial for capital murder. The evidence supported a finding that she had committed only manslaughter. The trial court refused any lesser included offense instruction. The appellate court reversed the death sentence because the all-or-nothing choice created an unacceptable risk that the jury would convict of the greater offense rather than acquit.
Lucia Lopez was charged with a protest-related offense carrying enhanced penalties. The jury convicted her only of the lesser included offense of regulatory violation. The reviewing court affirmed the conviction because the lesser offense was properly submitted and the evidence supported it independently of the greater charge.
Lola Langley was convicted of a weapons offense. The judge imposed an enhanced sentence based on a fact that effectively created a greater crime. The court held that the fact operated as an element of a new offense rather than a mere sentencing factor, requiring the jury to decide every fact that increased the maximum penalty beyond the lesser included offense.
A conviction of the lesser included offense functions as an acquittal of the greater offense. Once jeopardy has attached on the lesser, the Double Jeopardy Clause prevents a subsequent prosecution for the greater offense arising from the same conduct.
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Yes. After jeopardy attaches on the greater offense, the Double Jeopardy Clause bars a subsequent 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. Denying any lesser option creates an unacceptable risk that jurors will convict of capital murder rather than acquit when they believe the defendant is guilty of some lesser crime.
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One offense is necessarily included in another only when the elements of the lesser offense are a subset of the elements of the charged offense. Courts compare the statutory elements rather than the facts of the particular case.
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…Crown took the form not only of flat-out acquittals in the face of guilt but of what today we would call verdicts of guilty to lesser included offenses, manifestations of what Blackstone described as pious perjury' on the jurors' part. 4 Blackstone 238-239"). [^maj-6]: As the principal dissent would chide us for this single citation to…