What is a Lesser Included Charge and Should You Ask For One?

A lesser included charge is a criminal offense that was not originally charged but fits within the elements of a higher offense that was charged. A lesser included charge might be an offense with a lower amount of property damage, one that requires a less culpable mental state, or one that required a different degree of injury. Examples include petit larceny as a lesser included of grand larceny, voluntary manslaughter as a lesser included of murder, and simple assault as a lesser included of assault causing serious physical injury.

Lesser included charges arise when the evidence in the case is not what the prosecution expected it to be or when the defense argues a theory that supports the lesser included charge but not the original, higher charge. For example, a defendant might be charged with premeditated murder. At trial, there may be strong evidence that the defendant killed someone but some of the evidence might have suggested that it wasn’t premeditated. At the end of the trial, the jury might be asked to return verdicts on a lower degree of murder or manslaughter in addition to the original charge of premeditated murder.

What are the Advantages and Disadvantages of Requesting a Lesser Included Charge?

Lesser included charges are important to defendants because jurors do not always exactly follow the law. For example, in a grand larceny case, the jury might be so outraged at what they consider to be a brazen theft by the defendant that they don’t carefully consider whether the value of the property stolen was high enough to be grand larceny before returning a guilty verdict. If the defense requests a lesser included charge of petit larceny, the jury is more likely to carefully look at the evidence presented about the property’s value and convict the defendant only of petit larceny if that is the only charge that they feel the evidence supported.
Requesting a lesser included charge is a double-edged sword, however. Some juries might have acquitted the defendant in the above example if they didn’t believe that the prosecution proved that the amount stolen warranted a grand larceny charge. If that happened, double jeopardy would prevent the prosecution from later charging the defendant with petit larceny and the defendant would walk free.
The key to deciding whether to request a lesser included charge is weighing the risks against the rewards. In the above example, grand larceny is a felony and petit larceny is a misdemeanor. The defendant has to choose between going all in to try for an acquittal or giving the jury a compromise option to lessen the chance of a felony conviction. With some charges, the difference between the original charge and a lesser included charge could be life versus a few years, prison versus probation, or a conviction that disqualifies the defendant from a job versus having only a minor criminal record. These outcomes have to be weighed against the evidence presented and how the jury appears to be receiving the evidence to determine the best strategy.

Who Makes the Final Decision?

Whether to request a lesser included charge is a question of trial strategy that rests with the defense attorney. Verdicts have been overturned where a defendant was allowed to make the final decision when it went against their attorney’s advice. This doesn’t mean that a defendant has no say, however. In deciding what’s in a defendant’s best interests, their attorney must be aware of their risk tolerance and the possible consequences for the defendant later in life. To that end, the judge will usually question a defendant to ensure that their attorney is making the decision after thorough consultation with the defendant before the judge decides whether to charge the jury with a lesser included offense.