# Lesser included offense

> Mediated Wiki article. Canonical URL: https://mediated.wiki/source/Lesser_included_offense
> Markdown URL: https://mediated.wiki/source/Lesser_included_offense.md
> Source: https://en.wikipedia.org/wiki/Lesser_included_offense
> Source revision: 1308241416
> License: Creative Commons Attribution-ShareAlike 4.0 International (https://creativecommons.org/licenses/by-sa/4.0/)

In [criminal law](/source/Criminal_law), a **lesser included offense** is a crime for which all of the elements necessary to impose [liability](/source/Legal_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](/source/Common_law) crime of [larceny](/source/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](/source/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](/source/False_imprisonment) is usually a lesser included offense of [kidnapping](/source/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.

## 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](/source/Canadian_law), the leading case on this principle is *[Kienapple v R](/source/Kienapple_v_R)* and the principle is therefore commonly called the *Kienapple* principle.

[Solicitation](/source/Solicitation) to commit a crime and [attempt](/source/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](/source/Conspiracy_(crime)) does not merge into the completed crime.

## Use in jury proceedings

In criminal [jury trials](/source/Jury_trial), the [court](/source/Court) is permitted (but not required) to instruct [jurors](/source/Jury) that they can find the [defendant](/source/Defendant) guilty of the most serious crime charged, or of a lesser included offense of that crime (in [English law](/source/English_law), this is termed an *alternative verdict*).

In [murder](/source/Murder) cases, however, where a convicted defendant may face [capital punishment](/source/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](/source/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.

## Case law

- *[People v. Ireland](/source/People_v._Ireland)* – introduced the merger doctrine to California in the context of the felony murder rule

## References

1. *[Beck v. Alabama](/source/Beck_v._Alabama)*, 447 U.S. 625 (1980), overturning an Alabama law prohibiting lesser included offense instructions in capital cases.

---
Adapted from the Wikipedia article [Lesser included offense](https://en.wikipedia.org/wiki/Lesser_included_offense) by Wikipedia contributors ([contributor history](https://en.wikipedia.org/wiki/Lesser_included_offense?action=history)). Available under [Creative Commons Attribution-ShareAlike 4.0 International](https://creativecommons.org/licenses/by-sa/4.0/). Changes may have been made.