Originally Posted by Mojo Jojo
I think the issue is that the lesser wasn't included in the original indictment. In many cases the prosecution isn't allowed to add a lesser charge after the trial starts. They need to list all charges up front. Not always the case, but they got a friendly judge. Defense now has grounds for appeal.
Maybe, I dunno. There's definitely a concept of conforming the claims to match the evidence, but that very likely is limited to civil proceedings, with which I am far more familiar.
Seems kind of stupid though. If it's a lesser included then by definition it includes some, but not all, of the same elements as the greater offense. Not like the defense is in any way prejudiced by this. But criminal law is more hyper-technical than civil, no doubt about it, so maybe an indictment is needed even for the lesser included.