Constitutional Limitations on the Lesser Included Offense Doctrine
![handle is hein.journals/amcrimlr21 and id is 463 raw text is: CONSTITUTIONAL LIMITATIONS ON THE LESSER
INCLUDED OFFENSE DOCTRINE
Christen R. Blair*
In this Article, the author identifies and addresses three constitutional
provisions that place limits on the doctrine of lesser included offenses.
The analysis begins with a discussion of the doctrine itself and of how the
courts have applied the doctrine in a variety of circumstances. The
author then contends that the constitutional requirement of notice
precludes the prosecution from obtaining an instruction on lesser
included offenses in some cases. In addition, the author addresses the
limitations that the double jeopardy clause places on the ability of the
prosecution to convict a defendant on a lesser included offense. Finally,
the author contends that due process may require the giving of an in-
struction on lesser included offenses in some cases, in order to maintain
the reliability of the criminal fact-finding process.
The lesser included offense doctrine in criminal law generally allows the trier of
fact to convict a defendant of an offense that is less serious than the offense with
which he was charged in the accusatory pleading.' While historically the doctrine
developed as an aid to the prosecution when there was insufficient evidence to con-
vict on the charged offense, today it is more often used by defendants seeking a con-
viction for an offense less serious than that actually charged.3 Regardless of who in-
vokes the doctrine in a criminal trial, however, its application has caused con-
siderable confusion among courts and commentators alike.4 The United States
Court of Appeals for the District of Columbia Circuit has said that the lesser
included offense doctrine [is] not without difficulty in any area of the criminal
law.5 In a similar vein the Supreme Court of Florida has stated The [doctrine of
* Assistant Professor of Law, University of Tulsa College of Law; J.D. 1976, Ohio State University;
LL.M., 1982, Columbia University.
1. 4 R. ANDERSON, WHARTON'S CRIMINAL LAW AND PROCEDURE § 1888 (12th ed. 1957); Comment, The
Lesser Included Offense Doctrine in Iowa: The Gordian Knot Untied, 59 IowA L. REV. 684 (1974)
[hereinafter cited as Comment, Iowa Doctrine].
2. United States v. Harary, 457 F.2d 471, 478 (2d Cir. 1972); Fuller v. United States, 407 F.2d 1199,
1230 n. 40 (D.C. Cir. 1967), cert. denied, 393 U.S. 1120 (1968); Kelly v. United States, 370 F.2d 227, 229
(D.C. Cir. 1966), cert. denied, 388 U.S. 913 (1967); Barnett, The Lesser-Included Offense Doctrine: A
Present Day Analysis For Practitioners, 5 CONN. L. REV. 255 (1972).
3. Barnett, supra note 2, at 255; See also United States v. Bey, 667 F.2d 7, 11 (8th Cir. 1982); United
States v. Harary, 457 F.2d 471, 478 (2d Cir. 1972); United States v. Methvin, 441 F.2d 584, 585 (5th Cir.
1971); People v. Mussenden, 308 N.Y. 558, 562, 127 N.E.2d 551, 553 (1955).
4. Koenig, The Many-Headed Hydra of Lesser Included Offenses: A Herculean Task for the Michigan
Courts, 1975 DET. C.L. REV. 41, 41-42; Barnett, supra note 2 at 256.
5. Fuller v. United States, 407 F.2d 1199, 1228 (D.C. Cir. 1967), cert. denied, 393 U.S. 1120 (1968).](ViewImageLocal?handle=hein.journals/amcrimlr21&div=22&collection=&method=preview&ext=.png&size=3)
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Constitutional Limitations on the Lesser Included Offense Doctrine
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