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NOT ALL MURDERS ARE CREATED EQUAL: Lesser Included Offenses

Homicide charges can involve all sorts of circumstances that make a difference in how that case is treated by the legal system. While many cases are originally charged as 1st degree intentional homicides--the most serious of form of homicide--they often resolve with convictions for less serious types of homicide. One common way that this can happen is through a plea bargain, where the State and the Defendant agree to reduce the original charge to a less serious charge in exchange for a guilty plea by the Defendant. But a second way in which someone can be convicted of a less serious version of the offense for which they are charged with is by having the jury convict them of a lesser-included offense.

Lesser Included Offenses--Definition and Procedure:

Lesser-included offenses take two forms. The most common type of lesser-included offense is an offense that requires proof of some, but not all, of the facts necessary to prove the charged offense. A simple example is possession of a controlled substance, which is a lesser-included offense of possession with intent to deliver a controlled substance. They each require proof that an individual knowingly possessed a controlled substance, but the more serious of the two requires proof of one additional fact--that the individual possessed the substance with the intent of distributing it.

A second form of lesser-included offenses are those which are designated by statute. Homicide is a prime example; state statute makes any type of criminal homicide that is less serious than the one charged a lesser-included offense.

If, at the end of a jury trial, evidence has been presented to form a reasonable basis for a jury to conclude that the more serious offense was not committed, but a lesser-included offense was committed, then upon request from either party, the judge should instruct the jury on the lesser included offense or offenses. If this happens, the jury will then be instructed to consider the charged offense first, and if they unanimously agree that the individual is not guilty of that offense, or believe that they will not be able to reach a unanimous decision on the charged offense, they are then instructed to consider the lesser-included offense.

Lesser-Included Types of Homicide:

There are several different types of lesser-included homicide offenses.

2nd Degree Intentional homicide:

If a defendant presents evidence of legally recognized mitigating circumstances, and the State is unable to prove beyond a reasonable doubt that the mitigating circumstances do not exists, then the jury should convict someone who was originally charged with a 1st degree intentional homicide with the lesser-included offense of 2nd degree intentional homicide. The most common mitigating circumstances presented in these types of cases are that an individual was acting after adequate provocation by the victim, or that an individual was acting in self-defense, but did so in an unreasonable manner.

First and Second Degree Reckless Homicide:

A second category of lesser-included homicide is reckless homicide. Unlike an intentional homicide, which occurs when someone kills another with the intent to kill, a reckless homicide occurs when an individual causes the death of another while acting in a manner that created an unreasonable and substantial risk of death of great bodily harm. If someone is charged with a first-degree intentional homicide, and the State proves that they killed someone while acting in a reckless manner, but is unable to prove that they actually intended for someone to die, then that person should be convicted of a lesser-included reckless homicide. A perfect example of a reckless homicide would be killing someone by firing a gun through a wall, without knowing at the time of firing whether anyone was on the other side of the wall.

Once a jury has determined that the crime was reckless, rather than intentional, they further have to determine whether the crime was a first or second degree reckless homicide. The only difference between the two is that the state must prove that an individual acted with "utter disregard for human life" in order to establish a first-degree reckless.

Defending a homicide:

When charged with a homicide, it is important to consider not only the defenses that could result in a not guilty verdict, but also what possible lesser-included offenses may be available to mitigate the serious of a conviction. Make sure you consult with an attorney who has experience with these matters so that you are able to mount the best defense possible.

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