Also known as: lesser included offense · lesser-included offense · lesser-included offenses · LIO · lesser included crime
Written by attorneys · grounded in primary & secondary sources — see below
An offense whose elements are necessarily included within those of a greater offense charged. Proof of the greater offense always establishes every element of the lesser. Acquittal or conviction on the lesser therefore carries double-jeopardy consequences for the greater.
Liam Larson stood trial on a charge of aggravated assault. The jury returned a verdict of guilty only on simple assault. When the state later sought to retry him for aggravated assault after the simple-assault conviction was vacated, the court held the second prosecution barred. The acquittal on the lesser offense operated as an acquittal of the greater.
Latoya Lane was tried and convicted of reckless endangerment after a shooting incident. The state then attempted to prosecute her for attempted murder arising from the same conduct. Because jeopardy had already attached on the lesser offense, the greater charge could not proceed.
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Lance Lee was acquitted of murder after a full trial. The state later filed a manslaughter charge based on the identical facts. The prior acquittal on the greater offense prevented any subsequent prosecution for the lesser included offense.
Logan Lane faced capital murder charges. The evidence permitted a rational jury to find him guilty only of manslaughter. The trial court refused a requested instruction on the lesser offense, creating an unacceptable risk that the jury would convict of the capital charge rather than acquit entirely.
Lamar Lewis was offered a plea to manslaughter instead of facing trial on murder. He accepted and entered the plea. The resulting conviction on the lesser included offense resolved the case and precluded further prosecution on the original greater charge.
Lily Lopez negotiated a guilty plea to theft as part of a deal that dismissed pending robbery charges. The court accepted the plea to the lesser included offense. The agreement bound the state and ended the prosecution on the greater offense.
An acquittal on the lesser included offense constitutes an acquittal of the greater inclusive offense under Model Penal Code § 1.08(1). The bar applies even if the lesser conviction is later set aside.
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Jeopardy that attaches on a lesser included offense bars a later prosecution for the greater offense because the greater requires no additional proof beyond the lesser plus extra elements. The same rule prevents prosecution for the lesser after jeopardy has attached on the greater.
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A capital defendant is entitled to a lesser-included-offense instruction when the evidence would permit a rational jury to acquit on the capital charge and convict on the lesser. Denying all such options creates an unacceptable risk of an unwarranted capital conviction.
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The Constitution does not require instructions on every lesser included offense supported by the facts. The defendant receives only those instructions that the evidence rationally supports.
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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…