Learn about Lesser Included Offenses – How might they affect your case

A lesser offense is a crime that’s contained within a bigger crime. You can’t commit a greater crime without committing the lesser. The courts use three tests to determine whether a crime is lesser included within another.

Determining Lesser Included Offenses

The Pleadings Test
Some courts look at the charging documents to determine if an offense is lesser included. The charging document describes the charge against the defendant, so if they were being charged for a murder that occurred by stabbing, the lesser included crime would be assault with a deadly weapon.

The Evidence Test
Some courts look at the evidence presented by the prosecution to determine if an offense is lesser included. If the prosecution was charging the defendant with murder and presented evidence that the murder occurred by stabbing, then assault with a deadly weapon would be the lesser included crime.

The Elements Test
The Elements Test considers the definition of the crimes standing on their own. In this test, a more serious crime contains all the elements of a lesser included crime plus one or more other element. So, under this test, regardless of the pleadings or evidence, the assault with a deadly weapon would not be a lesser included offense of murder.

Lesser Included Offenses in the Courtroom

Lesser included offense usually always give prosecutors something to fall back on, as it gives them a way to at least obtain some kind of conviction, even if the jury acquits the defendant of the more serious crime. But, lesser included offenses can also be a benefit for defendants.

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