It is a common belief in society that once a person is charged with a crime, they will either be found innocent or guilty of that particular offense. This is true in many criminal cases. However, there are just as many, if not more situations, when a person will enter a plea to a lesser included offense.

In Georgia, a crime may be a lesser included offense of a charged offense either as a matter of law, or as a matter of fact.

A crime is a lesser included offense as a matter of law if the lesser offense contains the same, but fewer elements of the greater offense, or if the same conduct occurs with a less culpable state of mind. For example, voluntary manslaughter is a lesser included offense of malice murder because voluntary manslaughter provides for a less culpable state of mind. The well-known example is when the husband finds his wife in bed with another man and kills them both in a fit of rage. The defendant acted upon instantaneous and uncontrollable emotion. This differs from malice murder in that malice murder requires a more culpable state of mind such as a pre-meditated and deliberate killing of another person.

A crime is a lesser included offense as a matter of fact if the facts shown at trial establish that some lesser offense may have been all that was committed. The greater offense simply cannot be proven. An example here would be a conviction at trial for reckless conduct instead of malice murder. Another example would be a conviction for theft by taking instead of armed robbery. In both examples, the prosecutor is unable to prove the required elements of the greater offense.

There are three common ways in which the issue of lesser included offenses may arise: (1) the successful process of plea negotiations (the most common scenario); (2) at trial, the defendant may request a lesser included offense in order to provide the jury an option to avoid conviction on the greater offense; and (3) the prosecutor may request a lesser included offense in order to provide the jury with a compromise verdict to avoid acquittal on the greater offense.

Some common lesser included offense scenarios include the following:


Arson | (Criminal Damage to Property)

Aggravated Assault | (Simple Battery)

Burglary | (Criminal Trespass)

Drug Trafficking | (Simple Possession of Drugs)

Armed Robbery | (Theft by Taking)

From a day to day criminal practice perspective, the issue of lesser included offenses plays a very large role. As I have stated before, the majority of criminal cases do not go to trial. Usually, a good prosecutor and good defense attorney will be able to work out a resolution that benefits the victim, the defendant, and the justice system. Lesser included offenses are just one of the tools that are used to accomplish this goal.

However, even in trial the use of lesser included offenses can be a tactical benefit. While mostly used by defense attorneys, both sides can ask the judge to instruct the jury that the jury can find a defendant guilty on a lesser offense. Sometimes, being found guilty of a misdemeanor or less serious felony instead of a serious violent felony can be a win for the defense. Likewise, a prosecutor may wish to have a conviction for something rather than an acquittal on everything.