The analysis begins with a discussion of the doctrine itself and of how the courts have applied the doctrine in a variety of circumstances. The author then contends that the constitutional requirement of notice precludes the prosecution from obtaining an instruction on lesser included offenses in some cases. In addition, the author addresses the limitations that the double jeopardy clause places on the ability of the prosecution to convict a defendant on a lesser included offense. Finally, the author contends that due process may require the giving of an instruction on lesser included offenses in some cases in order to maintain the reliability of the criminal factfinding process. (Publisher abstract)