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Krystal Dowd

9:11amMar 21 at 9:11am

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Lesser included offense can be defined as a less serious crime that is necessarily committed during the perpetration of a greater crime because the lesser crime contains some of the same elements of the greater crime. The lesser included offense definition also states that the greater crime cannot be proven unless all of the elements of the lesser crime are proven. Lesser included offense is basically a criminal law term used for a crime that’s contained within a more serious crime and is sometimes described as “necessarily included offense” as well. Lesser included offense is also used in non-criminal violations of law, such as some classes of traffic offenses. A great example of lesser included offense would involve trespassing. Trespassing is a lesser included offense of the crime of burglary. In order to determine whether a crime is a lesser included offense, courts solely consider the definitions of each crime, rather than the facts in the evidence or the charging document.  A crime will be a lesser included offense of another crime only if the second crime includes every element of the first crime, in addition to at least one other element. Although courts are not allowed to convict you on related charges stemming from the same physical action, prosecutors use strategies such as pursuing a severe charge against you but also filing a lesser charge in case the court rejects the more severe charge. Lesser included offenses do not violate the double jeopardy clause of the fifth amendment because double jeopardy does not apply to prosecutions for lesser included offenses if the defendant already has defeated the charge of the more serious offense. In United States v. Gentry, 555 F.3d 659 (8th Cir. 2009), the court determined the defendant was entitled to a lesser included offense instruction in this case involving possession of methamphetamine with intent to distribute. The evidence would have supported the conclusion that she possessed the drugs without the intent to distribute and therefore a simple possession instruction was appropriate.

Lesser included offense. (n.d.). LII / Legal Information Institute. https://www.law.cornell.edu/wex/lesser_included_offense (Links to an external site.)

Jury instructions- Lesser included offenses. (2015, September 1). case text. https://casetext.com/analysis/jury-instructions-lesser-included-offenses (Links to an external site.) 

Schwartzbach, M. A. (2019, July 26). Lesser Included Offenses. Www.Nolo.Com. https://www.nolo.com/legal-encyclopedia/what-lesser-included-offense.html#:%7E:text=%22Lesser%20included%20offense%22%20is%20a,without%20committing%20a%20lesser%20one (Links to an external site.). 

Offenses Included in Other Crimes. (2021, October 18). Justia. https://www.justia.com/criminal/lesser-included-offenses/#:%7E:text=Elements%20Test&text=The%20court%20will%20consider%20only,at%20least%20one%20other%20element (Links to an external site.). 

Marvin HawkinsYesterdayMar 20 at 1:49pm

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Good Afternoon Class,

“A less serious crime that is necessarily committed during the perpetration of a greater crime because the lesser crime contains some of the same elements of the greater crime. The greater crime cannot be proven unless all of the elements of the lesser crime are proven. For example,  (Links to an external site.)“>trespassing (Links to an external site.) is a lesser included offense of the crime of  (Links to an external site.)“>burglary (Links to an external site.). See, e.g.  (Links to an external site.)“>Carter v. United States, 530 U.S. 255 (2000) (Links to an external site.).” (Cornell Law, n.d., para 1). The court will not consider the facts in the charge document or the evidence, instead it evaluates the definition for each offense that the charging document presents. The second crime is only considered a “lesser included offense” of the first crime when it contains all aspects of the first crime while including at least one additional factor.

“Filing multiple charges for the same alleged offense is a prosecution strategy. Prosecutors will pursue a severe charge against you but also file a lesser charge in case the court rejects the more severe charge. However, courts are not allowed to convict you on related charges stemming from the same physical action.” (Criminal Law, 2018, para 1). Since protection only extends to criminal proceedings, defendants that have been convicted or acquitted of a crime can still be sued in a civil action. Therefore, resulting from the same occurrence, they are still susceptible to administrative action. So, if an individual has previously beaten a charge of a much serious nature, double jeopardy will not apply to the prosecution of “lesser included offenses” related to the case. However, if the jury convicts the defendant on several offenses that stem from a same action, the judge is at liberty to impose sentencing for the most serious offense.

“But the Court has held that the imposition of a sentence does not from the moment of imposition have the finality that a judgment of acquittal has. Thus, it has long been recognized that in the same term of court and before the defendant has begun serving the sentence the court may recall him and increase his sentence. Moreover, a defendant who is retried after he is successful in overturning his first conviction is not protected by the Double Jeopardy Clause against receiving a greater sentence upon his second conviction.” (Constitution Annotated, n.d., para 2)

References:

Cornell Law School. (n.d.). Lesser Included Offense. Retrieved from  (Links to an external site.)“>https://www.law.cornell.edu/wex/lesser_included_offense (Links to an external site.)

Criminal Law. (2018). One-Act, One-Crime, Doctrine Protects Defendants. Retrieved from  (Links to an external site.)“>https://www.bgsllaw.com/mchenry-county-lawyers/one-act-one-crime-doctrine-protects-defendants#:~:text=Filing%20multiple%20charges%20for%20the,from%20the%20same%20physical%20action (Links to an external site.).

Constitution Annotated. (n.d.). Imposition of Multiple Punishments for the Same Offense. Retrieved from  (Links to an external site.)“>https://constitution.congress.gov/browse/essay/amdt5-2-1-2-4/ALDE_00000863/ (Links to an external site.)Reply