Lesser Included Offense – Plea Bargain Option or Backup Charge to Ensure a Conviction

When someone is charged with a crime such as a felony, that charge is often accompanied by a lesser included offense of that greater crime.

Lesser included offense

Photo by: winnifredxoxo

Photo by: winnifredxoxo

A lesser included offense is a crime wherein the elements, or specific aspects needed to prove guilt of that crime are included within the greater crime being charged. In order for a lesser included offense to be valid, it must be impossible for the greater crime to be committed unless the lesser offense is as well. For instance, a class A misdemeanor assault would be the lesser included offense for third degree felony assault as it is impossible for someone to use “force or means likely to produce death or serious bodily injury to another” if they never caused any “substantial bodily injury”.

Use in traffic violations

Lesser included offenses come up frequently with traffic violations. An example would be if a person is arrested for reckless driving and exceeding the maximum speed limit by up to 25 mph. The first being a class B misdemeanor (greater offense), while the latter is a mere infraction (lesser included offense). Utah Code defines reckless driving as someone who “operates a vehicle in a willful or wanton disregard for the safety of persons or property”. Exceeding the speed limit in certain areas of circumstances can also fall under the same definition, but without a criminal charge attached.

One or the other

Photo by: Kyle Pearce

Photo by: Kyle Pearce

When a lesser included offense accompanies a greater offense, often the defendant cannot be convicted of both charges. Such would be the case with voluntary manslaughter and murder. If the defendant was found guilty it would be for either one or the other; not both. This can also apply to drug charges. Someone can be arrested for possession and possession with intent to distribute yet if the intent to distribute charge sticks the simple possession charge is void as it is already encompassed within the greater charge.

Lesser related offense

There are some lesser charges that are related in nature, yet not included in more severe crime. These are known as lesser related offenses. Possession is a lesser related offense to distribution and often goes hand in hand, yet possession is NOT a lesser included offense of distribution. Someone can be a middle man in a deal, never having the illegal drugs in their possession, and face distribution charges without the possession charges. If they did possess the drugs and sold them, then the possession charge would be a lesser related offense.

Use in plea bargains

Photo by: Karen Neoh

Photo by: Karen Neoh

A lesser included offense can be beneficial in defense cases as it can give the defendant an option to plead guilty to a lighter crime and have the more serious charge dropped. This is sometimes the case when there is proof beyond a reasonable doubt that the defendant is guilty of the lesser crime but the defense may not want to risk the chance of the defendant being found guilty of the higher crime, so they accept the lesser offense in exchange for dropping the greater one.

Prosecution’s use of lesser charges

The defendant isn’t the only one that has the potential to benefit from lesser included offenses. The prosecution will often add a lesser included offense to ensure that the defendant will be found guilty of something. This backup charge helps the prosecution ensure a conviction when they may doubt whether or not the more serious charge would stick. Since they can be used for or against the defendant, it is always wise to consult with an experienced criminal defense attorney to help guide you through the court proceedings and know when to accept or fight lesser included offenses.


Leave a Reply

Your email address will not be published. Required fields are marked *