Do Juries Have to Consider Lesser Included Offenses?Have you or someone you’ve known committed a large crime, only to find out there was a lesser offense involved in it? A lesser-included offense means that the crime is contained within a greater crime. This also means that you cannot commit the greater offense without committing the lesser. Now you can find out more about the tests that are involved in deciding if a crime is “lesser included.”

  • Pleadings Test: If you have committed a crime, a charging document will be looked at to describe the charge against the defendant. These documents are pleads that initiate criminal charges against the defendant. For example, if you look at a case involving murder and assault with a deadly weapon, assault with a deadly weapon is the lesser-included offense. He used the weapon to assault the person that was ultimately murdered due to the stabbing.
  • Evidence Test: Evidence presented by the prosecution could also come into play above what was stated on the charging document. If the prosecution charged the defendant with murder and presented evidence that stabbing caused the homicide, then assault with a deadly weapon would be seen as a lesser-included offense.
  • Elements Test: This test considers the definitions of the crimes standing alone. This test provides that a more serious crime contains all of the elements of a lesser-included crime. Under this element, assault with a deadly weapon would not be a lesser-included offense of murder. This is due to the fact that murder doesn’t require that the killing occur through use of a deadly weapon.

Main Instructions
There are general instructions saying that he judge must instruct a jury regarding any lesser offense that’s necessarily a part of the charged offense. This is based off of the fact that there’s significant evidence that the defendant committed only the lesser crime. Courts must give a lesser-included-offense instruction even if neither side asks for it if there is substantial evidence that the defendant is guilty only of the lesser offense. This is seen under People v Birks, 19 Cal. 4th 108 (1998). A jury can give a jury instruction on the offense only if evidence supports this conclusion. Simple drug possession, as an example, can be seen as a lesser-included offense of drug possession with intent to distribute or sell.

In the courtroom, a lesser-included offense can certainly serve as a fallback for prosecutors. This is because it gives them a way to obtain some kind of conviction even though the jury might acquit the defendant of a more serious crime.

Example of a Lesser-Included Crime in Action
Let’s say that a man assaulted a girl in a street. She is then seen as the accuser of a violent action that was intentionally caused. The government decides to charge the man with aggravated assault involving a gun, since a weapon was used in the incident. The man says that there was actually no weapon involved in the incident and he then takes the case to trial. After both sides have their words, the man’s attorney asks for an instruction on the lesser-included offense of simple assault. The man may be entitled to the instruction if it’s possible that he didn’t have a gun and that he committed only the simple assault.

There are many factors to include in allowing a defendant to waive lesser-included-offense instructions. These complex laws can be very difficult to understand, which is why it is in your best interest to seek the experience of an attorney for your case. The laws can vary from state to state. However, Blair Law Firm has the knowledge to help you in your case and will be on your side through it all. Find out where you can turn today!