What is a lesser included offense?

You can't commit a greater crime without committing its lesser included offense.

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A lesser included offense is a criminal law term for an offense that’s contained within a greater crime—you can’t commit the greater offense without committing the lesser. The most popular approach to identifying lesser included offenses among courts is the elements test. It provides that a more serious crime contains all the elements of a lesser crime, plus one or more other elements.

Drug possession, for example, is considered a lesser included offense of drug possession for sale. (See Drug Laws and Drug Crimes.) Simple drug possession often contains the following elements:

  • physical or constructive possession
  • of a usable amount of a controlled substance in a usable form
  • with the defendant’s knowledge that he or she possesses the substance, and that it’s a drug.

A possession-for-sale statute might have the three elements above, with the added element of the defendant’s intent to sell the drug. Since possession for sale contains all the elements of simple possession, it’s a greater offense and simple possession is lesser-included. (But see Is drug possession a lesser included offense of drug distribution?)

A lesser included offense can serve as a fallback for prosecutors—it gives them a way to obtain at least some kind of conviction when the jury might acquit the defendant of a more serious crime. (But lesser included offenses can also benefit defendants—see Do juries have to consider lesser included offenses?)

Example: Prosecutors can prove that Wallace had several baggies of cocaine in his jacket pocket. They will have no problem establishing that there was enough cocaine to use, that Wallace knew that he had it, and that he knew it was cocaine. If they can show that he intended to sell the drug—perhaps by the fact that he had more cocaine than he could use—then he’ll be on the hook for possession for sale. But if there’s a reasonable possibility that he had the substance simply for his own use, then he is guilty only of simple possession.

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