Good question. The state can request a charge on a lesser included offense. If the defendant either agrees to the charge or fails to object, and the evidence is found insufficient on the greater but sufficient to prove the lesser, the judgment will be reformed to reflect a conviction on the lesser rather than an outright acquittal.
In Criminal trial the court is allowed but does not have to give or instruct the jury with instructions that include lesser included offense. This depends off course on the evidence introduced during the trial and the law argued to that judge as it applies to the facts in the case.
However in capital crimes, my understanding is that the United States Supreme Court has held that the court SHALL instruct the jury that they may find the defendant guilty of a lesser included offenses .See Beck v. Alabama, 447 U.S. 625 (1980).
I generally agree with what Mr. Harper has said. However, every case is different, and if it cannot be reasonably said that there is evidence in the trial that the defendant is guilty, if at all, only of a lesser included offense, then the lesser included offense instruction is almost never going to be given.
Answers on Avvo are for general information purposes only and should not be relied upon as legal advice. No attorney / client relationship is created by providing this answer. For specific advice about your situation, you should consult a competent attorney of your choosing.
In addition to the other answers given, many crimes do not have lesser included offenses even if that seems counterintuitive for any specific crime. For instance, Texas law clearly states that Public Intoxication is NOT a lesser included offense of DWI, even though the elements may suggest otherwise at first glance.
The above is for academic purposes and is not intended as legal advice. The response does not constitute the creation of an attorney client relationship as this forum does not provide for a confidential communication.
Thats a tough call usually one to be made with this in mind:
If you elect not to ask for a lesser included and the jury comes back say for example Robbery and you didn't ask for the lessers of Assault and Theft, and the evidence in the trial shows weak say on the theft but the jurors don't have a choice but feel you are guilty of robbery but would have opted for the lesser than you precluded them from doing that. On the other hand, in a murder case where evidence is insufficient for murder but sufficient for manslaughter you might just want to gamble that and wait for the not guilty. The Judge has the ultimate say what goes in the jury charge and of course this is an area that keep appellate attorney's busy.
Providing general answers are meant to help the poster to understand some complex legal concepts and in no way creates an attorney-client relationship.