Lesser Included Offenses

99 Pages Posted: 7 Jun 2008 Last revised: 7 Jan 2016

See all articles by Michael Smolensky

Michael Smolensky

Rutgers University School of Law - Camden


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.

Keywords: Lesser, Included, Offense, New Jersey, jury, instruction, evidence, appellate review, constitution, double jeopardy, indictment, criminal, N.J.S.A., 2C:1-8, Model Penal Code, MPC, related offense, retribution

JEL Classification: K14

Suggested Citation

Smolensky, Michael, Lesser Included Offenses. Available at SSRN: https://ssrn.com/abstract=1141431 or http://dx.doi.org/10.2139/ssrn.1141431

Michael Smolensky (Contact Author)

Rutgers University School of Law - Camden ( email )

Camden, NJ 08102
United States

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