A lesser included offense is a criminal offense that is made up of some, but not all, of the

elements of a more serious offense. Elements of a crime are the parts of a crime that the

prosecution must prove to sustain a conviction. For example, in a DWI/DUI, the prosecution

must prove: (1) that someone drove; (2) a motor vehicle; (3) on a public way; (4) while under the

influence; (5) of intoxicating liquor or drugs. The law states that to be convicted of a crime, the

prosecution must prove each and every element of the offense beyond a reasonable doubt. In the

above example – if you prove four of the above five elements, the crime is not established.

Back to lesser included offenses – to commit second degree murder, the prosecution must

prove that a person caused the death of another recklessly under circumstances manifesting an

extreme indifference to the value of human life. A lesser included offense is manslaughter where

the prosecution must prove that a person caused the death of another recklessly. Note: in

manslaughter, the prosecution doesn’t have to prove that death was caused under circumstances

manifesting an extreme indifference to the value of human life. In the above example,

manslaughter is a lesser included offense to 2nd degree murder because it is made up of some, but

not all, of the elements of 2nd degree murder.

But – if a person is charged with 2nd degree murder, how does the jury get to decide

whether the lesser included offense of manslaughter was committed instead?

In New Hampshire, the trial court ordinarily does not give the jury an instruction on an

uncharged lesser included offense where neither side requests or affirmatively agrees to such

instruction. Therefore, in the above scenario, if neither the defense nor the prosecution asks the

court to instruct the jury on manslaughter, then the jury’s sole function is to decide whether 2nd

degree murder occurred. There is no requirement that the jury pass on each possible offense the

defendant could have committed.

Consider the Louise Woodward case. It concerned a young English au pair who was

convicted, at age 19, of the 1997 involuntary manslaughter of eight-month-old Matthew Eappen

while he was in her care in his home in Newton, Massachusetts. It took a while for Ms.

Woodward to be convicted of this crime because the jury originally found her guilty of 2nd degree

murder. It was only when the court itself reduced the charge to manslaughter that the level of her

conviction was reduced.

The prosecution charged Louise Woodward with first degree murder. The judge

instructed the jury on first and second degree murder (the latter being a lesser included offense).

At Ms. Woodward’s request, the judge did not instruct the jury on the crime of manslaughter –

also a lesser included offense. The jury found Ms. Woodward guilty of murder in the 2nd degree

and Ms. Woodward was given a life sentence. The judge then reduced the offense to

manslaughter.

On appeal, the Massachusetts Supreme Judicial Court stated the following:

The jury instructions. The Commonwealth presented evidence that the cause of Matthew’s

death was severe head trauma inflicted on February 4, 1997, while he was in the sole

custody of Woodward. The Commonwealth sought jury instructions on murder in the first

degree on a theory of extreme atrocity or cruelty, murder in the second degree, and on the

lesser included offense of involuntary manslaughter. Woodward objected to the last

request, and asked that the jury be limited to considering the offense of murder. The

judge acceded to her request. This was error. We have stated repeatedly that, “[w]hen the

evidence permits a finding of a lesser included offense, a judge must, upon request,

instruct the jury on the possibility of conviction of the lesser crime….. We have never

limited this rule to requests made by the defendant, nor have we ever held that the

Commonwealth is not entitled, evidence permitting, to such an instruction on request.

It appears that the prosecution in the Woodward case had overcharged Ms. Woodward.

What she did likely constituted the offense of involuntary manslaughter all along; yet, the dice

was rolled because the defense felt confident the jury wouldn’t find her guilty of murder. When

the jury did return a murder conviction, the defense had egg on its face. Clearly, the defense

should have gone along with the prosecution’s request that the jury be instructed on the offense

of manslaughter.