Criminal Law - State v. Lovelace: The Procrustean State of the Lesser-Included Offense Doctrine in Nebraska
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Authors
McKay, Karen D.
Issue Date
1984
Volume
17
Issue
Type
Journal Article
Language
Keywords
Alternative Title
Abstract
INTRODUCTION|By its simplest definition, the doctrine of the lesser included offense allows a criminal defendant to be convicted of a crime for which there was no formal charge in the indictment or information. However, this straightforward explanation is misleading, evidenced by broad differences in opinions among jurisdictions over what constitutes a lesser included offense and under what conditions either the prosecution or defense or both may invoke the doctrine in a criminal proceeding. The common law principle of the doctrine is that no prosecution should fail for lack of proof in the evidence. Initially, prosecutors utilized the lesser offense doctrine to request jury instructions on an offense less serious than the one charged, presumably because the evidence supporting the greater charge was inconclusive.|Today, both the prosecution and defense use the lesser included offense doctrine, although most courts will not instruct the jury on the lesser offense unless one of the parties so requests. From counsels' point of view, instructions to the jury on the lesser offense could mean the difference between conviction and acquittal, depending on the strength of the evidence. From the defendant's point of view, lesser offense instructions could mean a closer aligning of the conviction rendered with the crime committed. From the court's point of view, lesser offense instructions foreclose the prosecution from later charging the defendant with a lesser crime stemming from the same evidence. From the jury's point of view, lesser offense instructions avoid placing it in a black-or-white, convict-or-acquit position and permit it instead to deliberate in the gray zone of the lesser included offense...
Description
Citation
17 Creighton L. Rev. 417 (1983-1984)
Publisher
Creighton University School of Law