Lesser Included Offenses


After hearing the state's evidence of a Newark homicide, the grand jury indicted the defendant for murder. The government publicized its theory of the case - felony-murder. At trial, direct examination of the prosecutor's principal witness involved testimony about a killing in the course of an attempted robbery. But cross-examination exploited the witness' weaknesses with impeachment evidence. As a result, the record evidence about the felony-murder was disputable.

The adversaries rested, and the judge reviewed the intended instructions for the jury. The court would tell the jury to use these instructions to apply the law to the evidence. The prosecutor asked the jury to convict on the felony-murder theory, while the defendant advocated for acquittal.

Somewhere in the middle, the jury could have acquitted the defendant for first degree murder, and convicted for second degree murder, a lesser included offense. A trial court's failure to instruct the jury accordingly in any criminal trial will result in a reversal because this error inhibits the jury's ability to reach an accurate conclusion.

This is the Doctrine of Lesser Included Offenses. Far more than just "courtroom drama," this doctrine involves the constitutional right to notice and protection against double jeopardy, substantive criminal law, statutory interpretation, the record evidence, trial procedure and strategy, scope of appellate review, and legal policy. This paper explains all of these aspects of this doctrine under the law of New Jersey.

The author wishes to thank Prof. Richard G. Singer for his direction with this research.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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