There is a question on movie stack exchange regarding the Few good men movie (spoilers) regarding why some people were not found guilty of first degree murder but only of a factually fully different crime. The currently accepted answer points out that in the case in question the defendants didn't commit first degree murder due to there not being premeditation nor was the death even intentional. Thus they could not be convicted of murder one and the jury acquitted.

I've already heard this kind of argument before regarding for example the Zimmerman case. But looking at lesser included offenses it would seem the jury is allowed to convict on those rather than just the offense charged. Actually in the case of murder it seems that the court must instruct juries that they can find for a lesser included offense.

So the question is sort of two fold:

If the jury is not instructed that they can find for a lesser included offense can they do it anyway if they understand it on their own?

How can there be issues with overcharging in murder trials if the jury must be instructed about the lesser included offenses?

EDIT With regards to jurisdiction multiple US would be great (federal, couple state) but for choice lets say Florida.

  • which jurisdiction? The answer is likely to be different in different places. Commented Jun 13, 2017 at 17:58
  • I was assuming US. Florida sounds good. the original question is really USMC I guess.
    – DRF
    Commented Jun 13, 2017 at 18:04
  • 1
    A Few Good Men was about a court-martial, which follows the UCMJ and has some pretty major differences from a civilian court. For instance, a court-martial's jury is not randomly drawn from the community, they're detailed by the convening authority based on who he thinks is best suited for it.
    – cpast
    Commented Jun 13, 2017 at 22:26
  • @cpast I realize that and an answer regarding the UCMJ would also be interesting though one in the jurisdictions I mention would be just fine for reference purposes. I'm quite surprised there is no answer yet. I assumed this would be a trivial question any first year law student could answer.
    – DRF
    Commented Jun 14, 2017 at 5:22
  • Wow any reason why this (question) got downvotes? Am I missing something in the rules for Law SE? Or is it just trivially googlable? I tried but couldn't find anything.
    – DRF
    Commented Jun 14, 2017 at 6:37

1 Answer 1


What the jury must do

A jury must follow the law it is given by a judge. A jury cannot "go rogue" and bring back a verdict on something that has not been charged and/or that the jury has not been told to consider.

So, whether a jury has the option of convicting a defendant of a lesser included offense - a crime contained within a more serious crime - depends on the instructions the judge gives.

Is it up to the judge and the judge alone?

Not necessarily. Typically, judges must issue the lesser included offense instructions to the jury if the lesser included offense is part of the charged offense if there exists significant evidence the defendant only committed that lesser crime. So, only if the evidence supports such instructions.

Further, at least in some jurisdictions, a trial judge may not instruct jurors on a lesser included offense if there has been no request to do so by the defendant. There appears to be a disagreement over what, if any, power a prosecutor should have in making such a request. One side would argue that a prosecutor would want to ask for it so that a defendant who is getting off on the larger crime doesn't skate completely free on, for example, a technicality. Another side would argue that prosecutors should not have a say because they are in fact who control which charges are submitted to the grand jury for indictment.

  • 1
    Great answer! It covers all of the key points and recognizes that some of these issues do not have a single uniform answer in all jurisdictions.
    – ohwilleke
    Commented Mar 3, 2018 at 6:05
  • The linked article is quite confusing. The defendant there was charged only with the worse offence, and not with a lesser offence. The jury had the choice of convicting of the worse offence, or letting the defendant go free (even though he was quite clearly guilty of the lesser offence). I think it would be fair if both the judge would be allowed to include the lesser offence (to avoid a guilty person walking free), and for the defence as well (to prevent the defendant from unfairly being found guilty of the worse charge because the jury doesn't want him to go free when he is clearly guilty).
    – gnasher729
    Commented Mar 3, 2018 at 14:29
  • Of course that applies if the defendant is very likely to be found guilty of the lesser charge by a fair jury, and less likely to be found guilty of the worse charge by a fair jury. In the case mentioned, the defense believed that the defendant was only found guilty because of the judges trial strategy, and that the outcome was unfair.
    – gnasher729
    Commented Mar 3, 2018 at 14:30
  • What's confusing about it? And there was no "judges trial strategy." Judges don't have trial strategies. It was the defense counsel's strategy. The strategy was to go for all or nothing, with the defense evidently assuming the jury would not convict for the larger crime and, therefore, didn't ask for the lower charge so that the lower charge would not be available for the jury to fall back on. It backfired and the defendant claimed he was prejudiced by ineffective counsel. The appeals court disagreed, legitimizing the strategy of defense counsel deciding whether to ask for lower charge or not
    – A.fm.
    Commented Mar 3, 2018 at 14:37
  • I'm not sure I know what you mean about what you think about the judge. Seems irrelevant. Your second comment is also a misstatement of the case.
    – A.fm.
    Commented Mar 3, 2018 at 14:39

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