What Does “Lesser Included Offenses” Mean?

Posted on by New Mexico Criminal Law Offices

Charged with a Crime in New Mexico? Our Criminal Defense Lawyers can Help

gavelWhen a person ischarged with a crime, it is rarely just one charge they are facing. Lesser included offenses are quite common, especially for more serious criminal acts.

Lesser related and lesser included offenses are not the same. In fact, they have significant differences.

Lesser-Related versus Lesser-Included

A lesser included offense is a crime that is part of another crime. In this case, the greater, more serious offense contains the elements of the lesser crime, plus additional elements. You could not have committed the greater crime without committing the lesser included crime.

Lesser-related offenses occur when the crime is like the greater offense, but they do not contain the same elements. In this case, you could have committed the greater crime without the lesser offense.

Today, we focus on lesser-included offenses and how these can significantly impact the outcome and sentencing potential of a case.

An Example of a Lesser-Included Crime

To determine if your case has lesser included offenses, the court will look at the charging document and evidence. For example, if you are charged with murder, you might also be charged with the lesser included offense of assault with a deadly weapon.

This would be the case if the alleged facts show that you murdered someone by stabbing them. It logically follows that if you committed a murder (by stabbing) then you also would have had to assault the victim with a knife (deadly weapon) in the process of murdering them. This would make you equally guilty of the lesser included offense.

How Do the Courts Decide What Lesser Crimes Apply?

This is a tricky part because the court must look at all evidence to determine if the defendant did, in fact, commit the lesser included offense. While they will look at the charging document to see what offenses the defendant allegedly committed, they will also make sure the evidence presented by the prosecution proves that lesser charge.

A popular method for deciding lesser included crimes is the elements test. An element test does not review evidence or charging documents, but instead, considers the definition of each crime on its own.

The elements test requires that the serious crime contain all the elements of the lesser included crime. Regardless of evidence, assault with a deadly weapon might not be a lesser included offense of murder, because the legal definition of murder does not require that the murder occur using a deadly weapon.

Avoid Endless Included Offenses by Having a Criminal Defense Attorney in New Mexico

Lesser included offenses are used by prosecutors to help ensure that the defendant receives some type of conviction. They are offering the lesser included offense so that if the jury acquits the defendant of the major crime, they can still be found guilty of the lesser crime – as long as the judge allows them to consider the lesser crime in the jury instructions.

Lesser included and lesser related charges are very dangerous. Basically, even if the prosecutor doesn’t have enough evidence to secure a conviction on  the more serious charge, the weak evidence could still land you in jail. Therefore, you need a criminal defense attorney to explore your options and help combat these add-on charges.

Schedule a consultation now with New Mexico Criminal Law Offices at 505-375-4767, or request more information online.