criminal law Criminal law is the body of law that relates to crime. It proscribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and Well-being, welfare of people inclusive of one's self. Most criminal l ...

, 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 Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...

crime of

larceny Larceny is a crime involving the unlawful taking or theft of the personal property of another person or business. It was an offence under the common law of England and became an offence in jurisdictions which incorporated the common law of Eng ...

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 use of fear. According to common law, robbery is defined as taking the property of another, with the intent to permanently deprive the person o ...

, 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 False imprisonment or unlawful imprisonment occurs when a person intentionally restricts another person's movement within any area without legal authority, justification, or the restrained person's permission. Actual physical restraint is n ...

is usually a lesser included offense of

kidnapping Kidnapping or abduction is the unlawful abduction and confinement of a person against their will, and is a crime in many jurisdictions. Kidnapping may be accomplished by use of force or fear, or a victim may be enticed into confinement by frau ...

. 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 violation related to aggressive driving that generally consists of driving a vehicle with willful or wanton disregard for the safety of persons or property. It is usually a more serious o ...

, 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 admi ...

) 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 known as a plea agreement or plea deal, is a legal arrangement in criminal law where the defendant agrees to plead guilty or no contest to a charge in exchange for concessions from the prosecutor. These concessions can include a ...

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 legal system of Canada is pluralist: its foundations lie in the English common law system (inherited from its period as a colony of the British Empire), the French civil law system (inherited from its French Empire past), and Indigenous ...

, the leading case on this principle is '' R. v. Kienapple'' 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 A conspiracy, also known as a plot, ploy, or scheme, is a secret plan or agreement between people (called conspirers or conspirators) for an unlawful or harmful purpose, such as murder, treason, or corruption, especially with a political motivat ...

does not merge into the completed crime.

Use in jury proceedings

In criminal

jury trial A jury trial, or trial by jury, is a legal proceeding in which a jury makes a decision or findings of fact. It is distinguished from a bench trial, in which a judge or panel of judges makes all decisions. Jury trials are increasingly used ...

s, the

court A court is an institution, often a government entity, with the authority to adjudicate legal disputes between Party (law), parties and Administration of justice, administer justice in Civil law (common law), civil, Criminal law, criminal, an ...

is permitted (but not required) to instruct jurors 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 juris ...

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 list of national legal systems, legal system of England and Wales, comprising mainly English criminal law, criminal law and Civil law (common law), civil law, each branch having its own Courts of England and Wales, ...

, 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 committed with the necessary Intention (criminal law), intention as defined by the law in a specific jurisd ...

cases, however, where a convicted defendant may face

capital punishment Capital punishment, also known as the death penalty and formerly called judicial homicide, is the state-sanctioned killing of a person as punishment for actual or supposed misconduct. The sentence (law), sentence ordering that an offender b ...

, 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 Voluntary manslaughter is the killing of a human in which the offender acted in the heat of passion, a state that would cause a reasonable person to become emotionally or mentally disturbed to the point that they cannot reasonably control thei ...

.'' Beck v. Alabama'', 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 the 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''

References

{{DEFAULTSORT:Lesser Included Offense Criminal law