The Illinois Code On Lesser Included Offense
Section 2-9(a) of the Criminal Code defines a lesser included offense as one that :
But What Does Lesser Included Offense Mean?
The definition provides little guidance, as it fails to provide a workable test for assessing when a crime is a lesser included offense of another crime.
In Illinois criminal court the concept of a lesser included offense allows a defendant to be convicted of an offense for that he was never actually charged.
Generally, a defendant in a criminal prosecution has a fundamental due process right to notice of the charges brought against him. For this reason, a defendant ordinarily may not be convicted of an offense he has not been charged with committing.
A defendant may, however, be convicted of an uncharged offense if it is a lesser included offense of a crime expressly charged in the charging instrument, and the evidence adduced at trial rationally supports a conviction on the lesser-included offense and an acquittal on the greater offense. See People v. Kennebrew, 2013 IL 113998, People v. Kolton, 219 Ill. 2d at 359-60. See also People v. Novak, 163 Ill. 2d 93, 105 (1994).
When Does A Lesser Included Offense Analysis Come Up?
In a criminal trial there are generally two situations when a lesser included offense calculation must be performed.
- When a defendant has not been charged with a lesser included offense a jury or a judge may nonetheless find a defendant guilty of a lesser included and acquit them of the greater charge.
- When a defendant has been expressly charged with a lesser included offense and convicted of both the greater offense and the lesser included offense the court must then perform an analysis to determine if the defendant can be sentenced on the lesser included offense.
The Abstract Elements Approach
The abstract elements approach is considered to be the strictest approach.
Under this approach, “if all of the elements of one offense are included within a second offense and the first offense contains no element not included in the second offense, the first offense is deemed a lesser included offense of the second.” People v. Miller, 238 Ill. 2d at 166.
Additionally, it must be impossible to commit the greater offense without necessarily committing the lesser offense.
This approach is often used to determine if a defendant will be sentenced on multiple convictions.
The Charging Instrument Approach
Under the charging instrument approach the lesser offense need not be a “necessary” part of the greater offense, but the facts alleged in the charging instrument must contain a “broad foundation” or “main outline” of the lesser offense. People v. Kennebrew, 2013 IL 113998, People v. Miller, 238 Ill. 2d at 166; People v. Kolton, 219 Ill. 2d at 361; People v. Novak, 163 Ill. 2d at 107.
“The indictment need not explicitly state all of the elements of the lesser offense as long as any missing element can be reasonably inferred from the indictment allegations.” People v. Miller, 238 Ill. 2d at 166-67.
This approach is used to determine if it is proper to allow a conviction for an uncharged count.
The Illinois Supreme Court Picks The Lesser Included Offense Test
The lesser included offense rules were created to more accurately conform punishment to the crime actually committed.
In People v. Miller, 238 Ill. 2d 161 (2010), the Illinois Supreme Court distinguished the approach that applies when determining whether an uncharged offense is a lesser included offense of a charged crime from the approach that applies when determining whether a charged offense is a lesser included offense of another charged offense under the one-act, one-crime doctrine.
While the charging instrument approach applied with uncharged offenses, there was “no reason to apply the charging instrument approach when a defendant is charged with multiple offenses and the issue is whether *** one offense is a lesser included offense of the other.” People v. Miller, 238 Ill. 2d at 173. See also People v. Kennebrew, 2013 IL 113998, ¶38.
As a matter of state law, Illinois has chosen to apply the charging instrument approach where the lesser-included offense was uncharged. And the abstract elements approach when the lesser offense is charged. “Considering Novak, Kolton, and Miller together, the distinction between uncharged offenses and multiple charged offenses is essential to determining the proper approach in this case.” See People v. Kennebrew, 2013 IL 113998, ¶39, People v. Kolton, 219 Ill. 2d 353.