Do juries have to consider lesser included offenses?

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Juries are obligated to follow the law judges give them. So, whether a jury has the option of convicting a defendant of a lesser included offense—a crime contained within a more serious crime—depends on the instructions the judge gives.

Most of the time, a defendant who rejects a plea and takes the case to trial wants an acquittal. But there are times when defendants know that’s probably not going to happen: The jury is likely to find that the accused committed some kind of crime, even if not exactly what the prosecution charged. In that kind of case, the defendant might think it’s a good idea to ask the judge to instruct the jury on a lesser included offense—that is, to explain to the jury what the lesser included offense is and give it the option of convicting on that basis. That way, the hope is, the defendant can avoid a conviction of a more serious charge.

Lesser Included Instructions

A judge has to give a jury instruction on a lesser included offense only if the evidence supports it. For example, trespass (entering or remaining on property without permission) is usually a lesser included offense of burglary (breaking and entering with intent to commit a felony or theft). In many instances, an instruction on each of these offenses is appropriate. But there can be circumstances where the evidence doesn’t support both. For example, the judge might be free to refuse to give an instruction on trespass if the defendant, after being caught by the police with a stereo, admitted that he took it from a house he had no permission to be in.

Even if the evidence might otherwise support an instruction on a lesser included offense, a judge may not have to give the instruction if the defendant has raised a defense that rules it out. For example, in most places, depending on the circumstances, a defendant who uses an alibi defense may not be entitled to a charge on a lesser included offense. That’s because the defendant is expressly denying that he or she committed any crime.

Complicating Factors

Keep in mind that the prosecution may also request a lesser-included-offense instruction, because it wants to make sure that the defendant doesn’t skate on all charges.

Also, it’s possible to waive a jury instruction. In some states, the defendant can waive the right to a jury instruction on a lesser included offense only by a clear statement to that effect. In others, failure to request an instruction on a lesser included offense means that you’ve forfeited it.

Example: Aggravated or Not?

Suppose Johnny claims that Sarah assaulted him. In other words, he has accused her of intentionally causing him to experience a reasonable fear of impending violence. The government decides to charge Sarah with aggravated assault, which can apply when a deadly weapon is involved, because Johnny says that she waved a gun in his face. Sarah admits she threatened Johnny, but denies she had a gun. She decides to take the case to trial. After each side has presented its case, her attorney asks for an instruction on the lesser included offense of simple assault. Simple assault and aggravated assault in this scenario are the same other than the element of a deadly weapon. Sarah is probably entitled to the instruction because it’s conceivable that she committed a simple assault only.

Consult an Attorney

Whether one crime is a lesser included offense of another depends entirely on how those crimes are defined in the court where your case is. That makes it crucial to seek the advice of an attorney before deciding to take a plea deal or go to trial. Laws on crimes and jury instructions vary from state to state, and from state to federal court, and only an attorney familiar with the applicable laws will be able to adequately help you.

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