I then googled the wiki-definition of what a lesser included offence was and I believe I understand the basics of it (although I may be wrong).
Anyway, while I appreciate it’s very unlikely someone would be charged with common-law robbery these days (although also correct me if that’s wrong!) then if one were and the jury were told to retire and discuss that, could they then spontaneously acquit yet convict on larceny. Assume for the purposes of this that it hasn’t been explicitly given to them as an option
What about statue law?
Bonus question: The nature of common law being what it is, can a jury just create a brand new offence out of nothing, at least in theory?
After a fashion; yes. The exact procedures vary, in some jurisdictions the Jury has to have that option explicitly open to them in others they can do it of their own motion. Some times they might no be able to due to some procedural quirk; the case of the English nanny in Massachusetts is one example, the jurymembers later said no one thought she had murdered the kid, but they had no option to include manslaughter.
Statute law, same as above.
Precedent is made by the rulings of Superior Courts, now a days almost always Appellate Courts. Jury decisions do not bind at all, except in the case at hand. A jury is not a legislator and strictly speaking no it cannot and if it did so, the Appeal would probably be accepted at first hearing. That said theoretically if a jury did that and the action was later affirmed by an Appellate Court and the precedent began to be followed, then the jury would have done so. But the chances of that happening are rather less than the chance of the Loch Ness monster being real.
Can you be found guilty of a lesser included offense? Yes. If I am accused of aggravated assault and the jury thinks it’s not aggravated, I can be convicted of (simple) assault.
" The nature of common law being what it is, can a jury just create a brand new offence out of nothing, at least in theory?"
At least in my jurisdiction (Canada), there is a statute which specifically says that one may not be convicted of a common law crime. Common law defenses stay and are added to statutory defenses. You can only be convicted by statutory offenses.
Even without that specific statute, it would likely be ruled out because if the jury can create an offense, it means that, at the time you performed the actions, those actions were not criminal. You can see how big a can of worms and unfair it would be to criminally convict people for doing things which were not crimes when they did them. It’s possible that that possiblity exists somewhere but it’s unlikely.
“What about statue law?”
Statue law is pretty much set in stone.
Generally yes, but most (all?) states allow a Defendant to basically say, “Okay, you charged me with first degree murder. You had better prove it. All or nothing, bitches. First Degree or not guilty.” It’s a risky strategy, but available.
These laws were introduced to prevent a prosecutor from grossly overcharging and hoping that a jury will split the baby.
I am not at all familiar with that. I wonder what the downside would be for the defendant.
If he does say “All or nothing, first degree or not guilty” and the jury finds it’s 2nd degree, I don’t see how it could convict even if the defendant went all or nothing. That would be convicting someone for a crime they did not commit.
In Canada, the decision on advising the jury about lesser included offended is up to the judge. The Crown cannot keep lesser included offended from being raised. If the judge concludes that a lesser offence is potentially available (e.g. manslaughter where the accused is charged with murder), the judge is legally required to instruct the jury on manslaughter.
Is this a normal option or dependent on the facts of the case?
I think primarily of the Robert Latimer case. The situation was obviously premeditated - he deliberately placed his daughter in the truck so as to asphyxiate her. Some of the jury afterwards said if they had known the sentence was “minimum 10 years” they would never have convicted.
Could /would a judge hypothetically have given the option of a lesser charge to the jury? Or would he need to respect the obvious evidence and say this is either innocent of charges or guilty of premeditation? Obviously, a deliberate killing could not be “second degree” or “manslaughter” or a charge based around “did not intend to kill” when the planning and intent was obvious.
If the prosecution wishes, they can indict on lesser included offenses.
They are always allowed, if they wish, to argue to the jury, “This guy committed first degree murder. But even if you don’t believe he planned the murder, you should convict him of second degree murder because in that instant, he intended to kill the victim. But even if you don’t believe that, his actions in firing the gun were criminally negligent and the victim died, so you should convict him of manslaughter. And even if you don’t believe that, the evidence clearly shows he was guilty of discharging a firearm inside city limits.”
What they cannot always do is amend the charges during trial. The reason for this is if charged only with first degree murder, the accused may decide upon a strategy to defeat the element of premeditation and admit the other offenses. It would obviously be detrimental to get halfway through trial only to be told that the state was adding the second degree charge. As long as they have indicted on all the lesser inlcudeds, though, no state that I know of forbids the practice of going into a trial with a run of lesser included offenses stemming from one act. If the jury comes back with convictions on all the counts, then they merge into one for conviction and sentencing purposes.
An interesting side issue: what happens if they jury comes back with inconsistent verdicts? Guilty of first degree murder, but not guilty of discharging a firearm inside city limits?
Would turn on the facts, wouldn’t it? As stated, it’s not necessarily inconsistent. The jury might conclude he did shoot the deceased with intent to kill, but he was outside the city boundary when he pulled the trigger, so not guilty on that count.