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Lesser Included Offense In Illinois

May 2, 2020 By Arthur McGibbons

The Illinois Code On Lesser Included Offense

Section 2-9(a) of the Criminal Code defines a lesser included offense as one that :

“is established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged.”

720 ILCS 5/2-9.

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.

Notice Requirement

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.

But…

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.

  1. 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.
  2. 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.

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.

Defendant Gets The Short End Of The Stick

The lesser included offense rules were created to more accurately conform punishment the the crime actually committed.

That means a court will use the broader approach to convict a defendant of uncharged crimes and the narrow approach to sufficiently distinguish charged offenses for which defendant was found guilty.

The Illinois Supreme Court Picks The Lesser Included Offense Test

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.

Filed Under: Lesser-Included

What Is Involuntary Manslaughter?

February 14, 2020 By Arthur McGibbons

In Illinois involuntary manslaughter is an unintentional killing. It results when a person acts recklessly such that their conduct leads to the death of another individual.

[Read more…]

Filed Under: Lesser-Included, Second Degree Murder

“Any Evidence” Justifies A Lesser Included Instruction (Not Any “Credible” Evidence)

January 25, 2017 By Arthur McGibbons

People v. McDonald, 2016 IL 118882 (December). Episode 287 (Duration 4:45)

What’s the appropriate standard a reviewing court should follow when deciding whether there was error in not giving a lesser included instruction: Abuse of discretion or de novo review?

[Read more…]

Filed Under: Lesser-Included

Lesser Included On A Gun Charge Is Kind Of Trickey

April 26, 2016 By Arthur McGibbons

People v. Clark, 2016 IL 118845 (March). Episode 163 (Duration 7:02)

Aggravated vehicular hijacking and armed robbery without a firearm are not lesser-included offenses of aggravated vehicular hijacking and armed robbery with a firearm. [Read more…]

Filed Under: Illinois Gun Crimes, Lesser-Included

Lesser Included Offense And The Charging Instrument Approach

August 25, 2014 By Arthur McGibbons

People v. Moman, 2014 IL App (1st) 130088 (August). Was this uncharged conviction proper?

Lesser included offense Illinois analysis means that obstructing a peace officer is probably always a lesser  included offense of aggravated battery to a peace officer. Apparently, he kicked a correctional officer while in the Cook County jail. He was acquitted after a bench trial but found guilty of the lesser-included offense of obstructing a peace officer. [Read more…]

Filed Under: Lesser-Included

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