When is a lesser included offense appropriate

Beck v. Alabama , U. Torres-Flores , F. Whether an offense is a lesser included offense of a charged crime is a question of law. Arnt , F. United States , U. Rivera-Alonzo , F. Rather, the contested issue at trial was whether the defendant intended to distribute the cocaine. Reportedly, although neither the State nor the defendant requested the jury receive an instruction on the lesser included offense of possession of cocaine, the court provided the jury with the instruction on its own volition.

The defendant objected to the instruction, which the court overruled. The defendant was subsequently convicted of the lesser included offense, after which he appealed. Upon review, the court found that to determine whether a jury should be instructed of a lesser included offense it must analyze whether the proof needed to show the defendant committed the charged offense includes the lesser offense.

If so, the court then looks at the evidence to determine whether the defendant is guilty of only the lesser included offense. Here, the court found that the evidence produced at trial indicated that the jury could reasonably find that the defendant was guilty of the lesser included offense. Further, it was undisputed that possession of cocaine was a lesser included offense of possession of cocaine with intent to distribute. If you are charged with a crime, you should meet with a skilled Texas criminal defense attorney to develop an argument in your defense.

Rick Davis is a proficient Texas criminal defense attorney who will offer you a vigorous defense to help you seek a successful outcome under the circumstances. But they have no unilateral right to such jury instructions. On the other hand, even if the prosecution or defense objects, a judge has to give a jury instruction on a lesser included offense if there's substantial evidence that the defendant is guilty only of that lesser offense.

People v. Birks , 19 Cal. As this article might suggest, issues like lesser included and lesser related offenses are complicated.

And the law might vary from one state to another, and from state to federal court. These are among the reasons it's critical to get your explanation and advice from a knowledgeable criminal defense attorney if you're at any stage in a criminal prosecution.

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Please reference the Terms of Use and the Supplemental Terms for specific information related to your state. Grow Your Legal Practice. Meet the Editors. Lesser Included Offenses. You can't commit a greater crime without committing its lesser included offense. Identifying Lesser Included Offenses To determine whether one crime is necessarily included within another, courts have used at least three tests.

The Pleadings Test In evaluating whether a crime is "lesser included," some courts have looked at the way the charging document describes the charge against the defendant. The Evidence Test Some courts have determined whether an offense is lesser included by looking not at the charging document but at the evidence actually presented by the prosecution.

The Elements Test But the most popular approach to identifying lesser included offenses among courts is the elements test. 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.

Lesser Related Offenses Judges and lawyers sometimes use a similar but distinct phrase to refer to a connected concept: "lesser related offenses. As relevant to the case, the burglary statute contains the following elements: entering a building with intent to commit a theft. The relevant part of the vandalism statute has these elements: maliciously defacing, damaging, or destroying property not belonging to the defendant.

Jury Instructions The difference between lesser included and lesser related offenses can be important, particularly when it comes to jury instructions.

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