Lesser Included Offenses in Homicide

Some people are fond of saying murder is murder, but the fact is not all murders are the same. There are circumstances in which a person charged with murder may warrant a conviction for lesser included offenses, or homicide of a lesser degree.

In a criminal case, the prosecutor has the option to instruct the jury to consider a conviction for a less serious charge if they believe the primary charge is not warranted. The jury can thus convict the defendant on a lesser charge in lieu of the primary charge. In a murder case where the death penalty is on the table, however, the court is required to give instructions to the jury regarding lesser included offenses such as voluntary manslaughter. This is to provide the jurors a middle ground when they believe the defendant is culpable, but there not culpable enough to warrant the extreme punishment.

According to the Kohler Hart Powell, SC website, it is the role of a skilled criminal defense lawyer to get the charges dismissed, an acquittal, or failing either, conviction for a lesser offense. In most cases, a lesser included offense is easier to prove than the greater offense. For example, murder in the first degree requires the prosecutor to prove premeditation prior to the killing act. For voluntary manslaughter, there is no need to prove the intent to kill, only that the defendant was the one that performed the act of killing. A qualified lawyer can help determine which case it is and can help with the defense.

The jury is typically asked to consider the more serious charge first in their deliberations. If the jury finds that there is reasonable doubt about the commission of the charged offense, or that they cannot unanimously degree that it was committed, they may be asked to move on to the lesser included offenses.

Murder is intentional homicide. A lesser offense would be second degree intentional homicide, in which circumstances i.e. provocation mitigated the act of killing. If the prosecutor is unable to prove intent, then the jury might be instructed to consider reckless homicide (there was no intent to cause death or bodily harm, but created a situation that led to one or both) in the first and second degree.

If you have been charged with murder, you have no time to waste.


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