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Lesser Included Offenses

In many cases that go to trial, it is important to request that the judge give the jury a lesser included offense instruction. That means that you ask the judge to tell the jury that the crime with which the defendant has been charged includes a lesser crime and that, if they feel the facts warrant it, they can find the defendant guilty of the lesser crime instead of the charged crime. For instance, in Arizona, theft is a lesser included offense of robbery, so if you are accused of robbery, the judge can tell the jury that they can find you guilty of theft instead.

Some jurors don’t like the fact they only have two options (guilty or not guilty), so a lesser included offense instruction gives them a third, more appealing option. I’m sure many defendants have avoided a lot of extra prison time by giving the jury the option of finding them guilty of a lesser offense. Unfortunately, like many things that can benefit a defendant in our criminal justice system, lesser included offense instructions are not always easy to get.

To get a lesser included offense instruction in Arizona, you have to show that the more serious offense can’t be committed “without necessarily committing the lesser.” The elements of the crime as contained in the statute determine whether a crime is a lesser included offense, not the facts of the case. That means the facts of a specific case might support a lesser conviction, but if it was not charged in the indictment, the jury can’t find the defendant guilty of the lesser offense.

Not every state looks to the language of the statute instead of the facts of the case. Arizona’s Division Two Court of Appeals has noted that both Colorado courts and the 9th Circuit federal courts look to the facts of the case when deciding whether a lesser included offense instruction is merited. I’m sure many other jurisdictions do as well. However, the court explained that is not the test in Arizona. As far as I can tell, the rule in Arizona can be traced back to the 1954 Supreme Court of Arizona case State v. Westbrook, which cited two out-of-state cases and a legal encyclopedia for the following proposition: “[t]he test to be applied is simple: Is the first offense one that cannot be committed without necessarily committing the second?”

The problem with that test is the word “necessarily,” which seems to be what binds Arizona courts to looking at the statute and not the facts of the case. Because a court half a century ago decided to look to what Maine and California were doing, countless juries since then have been prevented from deciding which statute best matches the facts of a case. Why not give them another option? Other than “because it’s how we’ve always done it,” is there any good argument for looking to the language of the statute instead of the facts of the case? Why not liberally permit any lesser included the facts support? It won’t result in any harm to a defendant, and I can’t see why a prosecutor wouldn’t want to convict a defendant of the crime best suited to what he or she actually did. Do the courts have any legitimate purpose in limiting a jury’s options?

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