This is the third in a series of posts related to James Fields, Jr., who drove his car into a crowd of counterprotestors in Charlottesville, Virginia. His charge was recently upgraded from second to first degree murder. Last week I wrote about the difference between these two charges.

As I said last week, in order to get a first degree conviction, the prosecutor will have to prove that Fields premeditated the killing. That’s going to be somewhat tricky, because there’s no evidence that Fields planned the act more than a few moments in advance. A few moments is legally enough to constitute premeditation, but it makes for a difficult case. What happens if the jury finds insufficient evidence of premeditation?

Well, Fields almost certainly won’t go free. For one thing, he’s also facing about ten other charges related to the incident, including malicious wounding. More importantly, however, the jury could still find Fields guilty of the lesser included offense of second degree murder.

What does that mean? Every crime is made up of individual ingredients, called elements. Prosecutors must prove all these elements in order to gain a conviction. Sometimes two offenses consist of very similar elements. For example, larceny is taking someone else’s property, while robbery is taking someone else’s property through threat or force. Breaking and entering is unauthorized entry into a structure or vehicle; burglary is unauthorized entry into a structure or vehicle with intent to commit a felony or steal something inside. In these examples, larceny is a lesser included offense of robbery, and b & e is a lesser included offense of burglary. Each lesser offense includes some but not all of the elements of the greater offense.

Okay. So second degree murder is intentionally taking human life. First degree is intentionally and with premeditation taking a human life. Second degree is a lesser included offense of first degree. And the law says that when a jury fails to find a defendant guilty of first degree murder, they can still convict for the lesser offense if the prosecutor has proven all the lesser offense’s elements. In Fields’s case, even if the prosecutor fails to prove premeditation, he might prove that Fields intentionally killed the victim.