Lesser Included and Nonincluded Offenses and Jury Instructions
| Publication year | 1996 |
| Pages | 35 |
1996, June, Pg. 35. Lesser Included and Nonincluded Offenses and Jury Instructions
The time comes, in the preparation for every trial involving criminal charges, when counsel must decide what, if any, lesser offenses would help his or her case. This is a strategic question. Whether prosecuting or defending a criminal case, the recognition of the availability of lesser offenses, in light of the evidence likely to be offered, can affect the strategic preparation and presentation of an entire trial.
The definition of lesser offenses states the obvious: lesser offenses, in a criminal case, involve those offenses that are lesser than an offense originally charged. There are two categories of lesser offenses: lesser included and lesser nonincluded offenses. This article provides a history of the development of the present-day law in Colorado and also provides an outline of the statutes and case law concerning lesser included and lesser nonincluded offenses.
Before 1974, debate involving the submission of lesser offenses to juries centered on the definition of lesser included offense." The availability of arguments and jury instructions concerning offenses lesser than those charged often turned on whether the lesser offense was considered included in the original, more serious charge. Whether an offense was a lesser included offense of the charged offense was wholly dependent on which of two definitions a trial court employed.
Courts could choose between the "statutory test" and the "evidentiary test." Judging by the number of opinions affirmatively using both tests, each enjoyed its own popular following. Because the tests embodied contrary definitions of lesser offense," peaceful coexistence was impossible.
Not surprisingly, under the statutory test, a court compared the statutes setting forth the elements of each crime in question. Under the statutory test, a greater offense included a lesser offense "when the establishment of the essential elements of the greater necessarily establishes all of the elements required to prove the lesser."(fn1) Those propounding the evidentiary test believed that a lesser offense was lesser included when the evidence presented at trial, to prove the original charge, established the elements of the lesser offense.(fn2)
In 1974, the Colorado Supreme Court, in People v. Rivera,(fn3) eliminated the conflict by selecting the statutory test. In so choosing, the court relied on the ease with which the test could be applied, the uniform nature of its application and a defendant's right to notice of the charges against him or her.(fn4) Pointing out that "it would be haphazard and unfair to say to a defendant that he must defend on the principal charge and any other charge which the evidence established,"(fn5) the court concluded that the best way to guarantee such notice is through the elements outlined in the charging statutes.
Today, guilty verdicts to lesser included offenses are specifically allowed by procedural rule:
Furthermore, the statutory test definition of lesser included offenses, as adopted in Rivera,(fn7) is now codified in CRS § 18-1-408 (5), which statesThe defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense.(fn6)
(5) A defendant may be convicted of an offense included in an offense charged in the indictment or the information. An offense is so included when:
(a) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(b) It consists of an attempt or solicitation to commit the offense charged or to commit an offense otherwise included therein; or
Examples of Lesser Included Offenses(c) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.
Over the years, Colorado appellate courts have made many case-by-case assessments as to whether an offense is a lesser included offense of the charged offense in a particular case. Some of those offenses evaluated and discussed include:
1) reckless manslaughter and criminally negligent homicide as lesser included offenses of first- and second-degree murder;(fn8)
2) third-degree assault as a lesser included offense of assault in the second degree on a peace officer;(fn9)
3) attempted first-degree criminal trespass as a lesser included offense of attempted second-degree...
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