In
criminal law
Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most criminal law i ...
, a lesser included offense is a crime for which all of the elements necessary to impose
liability are also elements found in a more serious crime. It is also used in non-criminal violations of law, such as certain classes of traffic offenses.
For example, the
common law crime of
larceny requires the taking and carrying away of tangible property from another person, with the intent of permanently depriving the owner of that property.
Robbery
Robbery is the crime of taking or attempting to take anything of value by force, threat of force, or by use of fear. According to common law, robbery is defined as taking the property of another, with the intent to permanently deprive the perso ...
, under the common law, requires all of the same elements and also the use of force or intimidation to accomplish the taking. Therefore, larceny is a lesser included offense in the offense of robbery, as every robbery includes a larcenous act as part of the crime. Assault is also a lesser included offense of robbery, just as
false imprisonment is usually a lesser included offense of
kidnapping
In criminal law, kidnapping is the unlawful confinement of a person against their will, often including transportation/asportation. The asportation and abduction element is typically but not necessarily conducted by means of force or fear: the p ...
. However, an offense will not be a lesser included offense if it carries a maximum penalty greater than that carried by the charged offense.
In the case of traffic offenses, serious misconduct while operating a motor vehicle can result in a charge of
reckless driving
In United States law, reckless driving is a major moving traffic violation that generally consists in driving a vehicle with willful or wanton disregard for the safety of persons or property. It is usually a more serious offense than careless ...
, which can be punishable (as a
misdemeanor
A misdemeanor (American English, spelled misdemeanour elsewhere) is any "lesser" criminal act in some common law legal systems. Misdemeanors are generally punished less severely than more serious felonies, but theoretically more so than adm ...
) by imprisonment, a fine, or both. However, if the person charged proves to the court that the actions were not serious enough to constitute recklessness, the offense may qualify as being the lesser-included offense of ''improper driving'', which is not a criminal offense and is punishable by only a fine. In others the charge may be substituted with one of ''driving without due care and attention'' or similar, which may be accepted in a
plea bargain
A plea bargain (also plea agreement or plea deal) is an agreement in criminal law proceedings, whereby the prosecutor provides a concession to the defendant in exchange for a plea of guilt or '' nolo contendere.'' This may mean that the defendan ...
or may likewise be found by the court.
Merger doctrine
Under the merger doctrine as this term is used in criminal law, lesser included offenses generally merge into the greater offense. Therefore, a person who commits a robbery ''cannot'' be convicted of both the robbery ''and'' the larceny that was part of it. In
Canadian law, the leading case on this principle is ''
R. v. Kienapple
R. or r. may refer to:
* ''Reign'', the period of time during which an Emperor, king, queen, etc., is ruler.
* '' Rex'', abbreviated as R., the Latin word meaning King
* ''Regina'', abbreviated as R., the Latin word meaning Queen
* or , abbreviat ...
'' and the principle is therefore commonly called the ''Kienapple'' principle.
Solicitation to commit a crime and
attempt
An attempt to commit a crime occurs if a criminal has an intent to commit a crime and takes a substantial step toward completing the crime, but for reasons not intended by the criminal, the final resulting crime does not occur.''Criminal Law - ...
to commit a crime, although not strictly speaking lesser included offenses, merge into the completed crime. As an important exception, the crime of
conspiracy does not merge into the completed crime.
Use in jury proceedings
In criminal
jury trials, the
court is permitted (but not required) to instruct
jurors
A jury is a sworn body of people (jurors) convened to hear evidence and render an impartial verdict (a finding of fact on a question) officially submitted to them by a court, or to set a penalty or judgment.
Juries developed in England ...
that they can find the
defendant
In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case.
Terminology varies from one jurisdic ...
guilty of the most serious crime charged, or of a lesser included offense of that crime (in
English law
English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures.
Principal elements of English law
Although the common law has, historically, be ...
, this is termed an ''alternative verdict'').
In
murder
Murder is the unlawful killing of another human without justification (jurisprudence), justification or valid excuse (legal), excuse, especially the unlawful killing of another human with malice aforethought. ("The killing of another person wit ...
cases, however, where a convicted defendant may face
capital punishment, the United States Supreme Court has held that the court ''must'' instruct the jury that they may find the defendant guilty of a lesser included offense such as
voluntary manslaughter.
['']Beck v. Alabama
''Beck v. Alabama'', 447 U.S. 625 (1980), was a United States Supreme Court case in which the Court held that a jury must be allowed to consider lesser included offenses, not just capital offense or acquittal.
Background
Beck was participating in ...
'', 447 U.S. 625 (1980), overturning an Alabama law prohibiting lesser included offense instructions in capital cases. The reasoning for this ruling is that when the jury is not given the ability to convict for a lesser offense, the jurors might opt to convict a less culpable defendant instead of letting defendant go free, essentially convicting of a more serious crime than the facts warrant. As the Court noted, "the failure to give the jury the 'third option' of convicting on a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction. Such a risk cannot be tolerated in a case in which the defendant's life is at stake." Therefore, they must have at least one option that falls in between these extremes.
Case law
*''
People v. Ireland
''People v. Ireland'', 70 Cal.2d 522 (1969), was a case decided by the Supreme Court of California that first introduced the merger doctrine in that state.
Decision
The defendant shot his wife with two .38 caliber bullets and killed her. The d ...
''
References
{{DEFAULTSORT:Lesser Included Offense
Criminal law