"Lesser Included" is mandatory in Florida
A Florida jury is always allowed to consider lesser included offenses.
This is a limit on the effective power of prosecutors, and is probably a good thing.
For instance, say you had an incredibly unsympathetic set of facts. Say a big man slaps a 90 year old woman while stealing her place in line... it's on security camera. Looks awful.
A prosecutor could decide to charge the man with attempted murder, confident that no jury is going to let the man walk, and if their only possible guilty verdict is attempted murder they will go for it even if they don't think the charge appropriate.
It goes both ways, of course. A prosecuter is free to over-charge a little. (As long as it's close enough to clear a preliminary hearing) A prosecuter doesn't need to lose sleep worrying about a jury that would have convicted on manslaughter but was forced to let the accused walk because they couldn't see their way to murder.
And there may be cases where a jury tags an innocent but highy unsympathetic defendent with something minor just cause he's horrible.
The biggest down-side to a jury always having lesser-included options is that it encourages bargaining in the jury. Our system says that if even one of twelve says not guilty then it is a mistrial. But when it is 11 against 1 and there is room for bargaining then you will be likelier to find compromise convictions.
But on balance... I think it's a good thing. (As long as the system adjusts a bit for the presumed increase in over-charging in, for instance, bail provisions.)
Anyone know how many states have mandatory consideration of lesser includeds?
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