Also known as: lesser offenses · lesser-included offense · lesser included offense
Written by attorneys · grounded in primary & secondary sources — see below
An offense whose elements form a subset of those required to prove a greater crime arising from the same conduct. Conviction of the lesser offense operates as an acquittal of the greater offense. At common law a misdemeanor merged into a felony committed in the same transaction so that only the felony supported conviction.
After a jury found Latoya Lane guilty of theft during a single incident involving a stolen wallet, the conviction was later vacated on procedural grounds. Prosecutors then sought to retry her for robbery arising from the identical facts. Because the theft conviction constituted an acquittal of the greater robbery offense, the second prosecution was barred.
Luke Latham was tried and acquitted of simple assault after a fistfight with a coworker. The state later attempted to prosecute him for aggravated assault based on the same altercation. Attachment of jeopardy on the lesser offense prevented the greater prosecution because the greater crime required no additional proof beyond the lesser plus extra elements.
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Liam Larson struck a victim during a struggle and then took the victim's watch. The state charged both misdemeanor battery and felony robbery. At common law the misdemeanor merged into the felony, so only the robbery conviction could stand and the battery count was dismissed.
Leonard Lowe was tried for murder and acquitted after a fatal stabbing. The state then sought to prosecute him for manslaughter based on the identical incident. Because jeopardy had attached to the greater offense, the Double Jeopardy Clause barred the subsequent lesser-offense prosecution.
After Maria Soto's conviction for simple assault was reversed on appeal, the state attempted to charge aggravated assault arising from the same incident. Because the original conviction was for the lesser offense, double jeopardy barred any greater charge on retrial even though the evidence might have supported it.
After Kevin Ortiz was convicted of misdemeanor battery, further investigation revealed that the victim later died from the injuries. Because the death had not occurred and could not have been discovered with due diligence at the time of the lesser prosecution, the state could proceed on a murder charge.
Yes. Under Model Penal Code § 1.08(1) a finding of guilty on the lesser offense constitutes an acquittal of the greater inclusive offense even if the conviction is later set aside.
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Jeopardy that has attached to a lesser included offense bars a later prosecution for the greater offense arising from the same conduct because the greater crime requires no additional proof beyond the lesser plus extra elements.
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At common law the misdemeanor merged into the felony so that only the felony conviction was permitted and no separate conviction for the lesser offense was recognized.
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Yes. Once jeopardy has attached and the defendant has been prosecuted for 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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No. The Constitution does not require instructions on every possible lesser included offense in capital cases, although denying all lesser-offense options creates an unacceptable risk of an unwarranted capital conviction.
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…homicide.[^maj-23] But the later and predominant view, following the great common-law scholars, has been that it was, at most, a lesser offense. In a frequently cited passage, Coke took the position that abortion of a woman "quick with childe" is "a great misprision, and no murder."[^maj-24] Blackstone followed, saying that while…