A lesser included offense is a term used in criminal law for a crime that’s contained within a more serious crime. You can’t commit the primary or greater offense without having also committed the lesser.
In order to determine if one crime should be included within the other, the courts use three basic tests.
The Pleadings Test for a Lesser Included Offense
To determine if a crime is considered “lesser included,” there are some courts that look at the manner in which the charging document actually describes the charge against the defendant. An example of this would be a charge of murder, and assault with a deadly weapon.
If the person was charged with murder due to stabbing, then the assault with a deadly weapon charge would be considered the lesser included offense. This is because if the defendant committed the murder by stabbing, then he also committed assault with the deadly weapon
The Evidence Test
There are some courts that have determined if an offense is “lesser included” not by looking at the actual charging document, but instead the evidence being presented by the prosecution. As a result, if the prosecution had charged the defendant with murder, and presented evidence that the homicide occurred due to stabbing, then the charge of assault with a deadly weapon would also be considered the LIO.
The Elements Test
This is one of the most common and popular methods used for determining whether a crime is lesser. With this method, neither the evidence nor charging documents are considered. Instead, it only considers the actual definitions of the crimes being considered.
Utah has a lesser included offense statute found in Utah Code 76-1-402. Under that statute a crime is included in another if:
- It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
- It constitutes an attempt, solicitation, conspiracy, or form of preparation to commit the offense charged or an offense otherwise included therein; or
- It is specifically designated by a statute as a lesser included offense.
Does a Jury Have to Consider the Lesser Included Offense?
A jury is obligated to follow the law that judges give them. Whether a jury has the ability to convict a defendant for a lesser included offense is completely dependent on the instructions given by the judge.
A generally accepted rule is that the judge needs to instruct a jury about such offenses if there is evidence that the defendant only committed that lesser crime. In some cases, the state law is going to provide that neither the defense or the prosecution has more of a right to oppose or demand instructions on these type of crimes. In fact, there are some courts that have maintained that if neither of the sides asks for, and if each objects to, such a jury instruction instruction, the judge has to give it if there is any type of significant evidence that indicates the person is actually guilty of the lesser offense.