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Lesser included offense

Concept in criminal law

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Criminal law
Elements
Actus reus Mens rea Causation Concurrence
Scope of criminal liability
Accessory Accomplice Complicity Corporate Principal Vicarious
Severity of offense
Felony (orIndictable offense) Infraction (also called violation) Misdemeanor (orSummary offense)
Inchoate offenses
Attempt Conspiracy Incitement Solicitation
Offense against the person
Assassination Assault Battery Child abuse Criminal negligence Defamation Domestic violence False imprisonment Frameup Harassment Home invasion Hate crime Homicide Human trafficking Intimidation Kidnapping Menacing Manslaughter (corporate) Mayhem Murder felony Negligent homicide Robbery Stalking Stabbing Torture
Sexual offenses
Adultery Bigamy Child sexual abuse Cybersex trafficking Fornication Homosexuality Incest Indecent exposure Masturbation Obscenity Prostitution Rape Pederasty Sex trafficking Sexual assault Sexual slavery Voyeurism
Crimes against property
Arson Arms trafficking Blackmail Bribery Burglary Embezzlement Extortion False pretenses Forgery Fraud Gambling Intellectual property violation Larceny Looting Payola Pickpocketing Possessing stolen property Robbery Smuggling Tax evasion Theft Trespass to land Vandalism, Mischief
Crimes against justice
Compounding Malfeasance in office Miscarriage of justice Misprision Obstruction Perjury Perverting the course of justice
Crimes against the public
Apostasy Begging Censorship violation Dueling Genocide Hostage-taking Smuggling Illegal consumption (such as prohibition of drugs, alcohol, and smoking) Miscegenation Piracy Regicide Terrorism Usurpation War crimes
Crimes against animals
Cruelty to animals Poaching Wildlife smuggling Bestiality
Crimes against the state
Lèse-majesté Treason Espionage Secession Sedition Subversion
Defenses to liability
Actual innocence Automatism Consent Defense of property Diminished responsibility Duress Entrapment Ignorantia juris non excusat Infancy Insanity Justification Mistake (of law) Necessity Provocation Self-defense
Other common-law areas
Contracts Defenses Evidence Property Torts Wills, trusts and estates
Portals
Law
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Incriminal law, 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, 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. 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, which can be punishable (as a misdemeanor) 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 or may likewise be found by the court.

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 and the principle is therefore commonly called the Kienapple principle.

Solicitation to commit a crime and attempt 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.

In criminal jury trials, the court is permitted (but not required) to instruct jurors that they can find the defendant guilty of the most serious crime charged, or of a lesser included offense of that crime (inEnglish law, this is termed an alternative verdict).

Inmurder 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.^[1] 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.

• People v. Ireland