Lesser Included Offenses

You can't commit a greater crime without committing its lesser included offense.

By , Attorney UC Law San Francisco

"Lesser included offense" is a criminal law term for a crime that's contained within a more serious crime. Sometimes described as "necessarily included offense," the term refers to a situation where it's impossible to commit a greater offense without committing a lesser one.

Identifying Lesser Included Offenses

To determine whether one crime is necessarily included within another, courts have used at least three tests.

The Pleadings Test

In evaluating whether a crime is "lesser included," some courts have looked at the way the charging document describes the charge against the defendant. Consider a scenario involving allegations of murder and assault with a deadly weapon. If an indictment were to charge that a murder occurred by stabbing, then, under the pleadings test, assault with a deadly weapon would be a lesser included offense. A defendant who did in fact commit murder by stabbing would have necessarily also committed assault with a deadly weapon (the deadly weapon, of course, being the knife). (Michael H. Hoffheimer, "The Rise and Fall of Lesser Included Offenses," 36 Rutgers L.J. 351 (2005).)

The Evidence Test

Some courts have determined whether an offense is lesser included by looking not at the charging document but at the evidence actually presented by the prosecution. So, if the prosecution charged the defendant with murder and presented evidence that the homicide occurred by stabbing, then assault with a deadly weapon would again be a lesser included offense. (Hoffheimer, supra.)

The Elements Test

But the most popular approach to identifying lesser included offenses among courts is the elements test. Crimes consist of elements, like a recipe consists of ingredients. Someone who commits each and every element of a crime has committed the crime. The elements test doesn't look at the charging document or the evidence. Instead, it considers only the definitions of the crimes standing on their own.

This test provides that a more serious crime contains all the elements of a lesser included crime, plus one or more other elements. Under this test, regardless of the pleadings or the evidence, assault with a deadly weapon is not a lesser included offense of murder. That's because the definition of murder doesn't require that the killing occur through use of a deadly weapon. (Hoffheimer, supra.)

Take a look at another example. Drug possession is commonly considered a lesser included offense of drug possession for sale (or a similarly named crime, like drug possession with intent to distribute). Simple drug possession often contains the following elements:

  • physical or constructive possession
  • of a usable amount of a controlled substance in a usable form
  • with the defendant's knowledge that he or she possesses the substance and that it's a drug.

A possession-for-sale statute might have the three elements above, with the added element of the defendant's intent to sell the drug. Because possession for sale contains all the elements of simple possession, it would be a greater offense and simple possession would be lesser (or necessarily) included.

Example: Prosecutors can prove that Wallace had several baggies of cocaine in his jacket pocket. They will have no problem establishing that there was enough cocaine to use, that Wallace knew that he had it, and that he knew it was cocaine. If they can show that he intended to sell the drug—perhaps by the fact that he had more cocaine than he could use—then he'll be on the hook for possession for sale. But if there's a reasonable possibility that he had the substance simply for his own use, then he is guilty only of simple possession.

Lesser Related Offenses

Judges and lawyers sometimes use a similar but distinct phrase to refer to a connected concept: "lesser related offenses." They often use it when two crimes are somehow similar but have different elements, with neither crime containing all the elements of the other.

To a court that looks only at the elements, a consideration of the actual evidence won't lead to a conclusion that one crime is necessarily included in another. But a consideration of the evidence could support a conclusion that the crimes are related.

Suppose, for instance, that someone smashes a restaurant window. The authorities determine that nothing in the premises has been disturbed or is missing. And there's no evidence that the person who smashed the window entered the restaurant. After the police catch the window-smasher, the prosecution charges him with burglary and attempted burglary. As relevant to the case, the burglary statute contains the following elements:

  • entering a building
  • with intent to commit a theft.

The defendant wants the judge to give the jury the option of a vandalism conviction. He claims that he broke the window out of anger and had no intent to steal anything from the restaurant. The relevant part of the vandalism statute has these elements:

  • maliciously
  • defacing, damaging, or destroying
  • property not belonging to the defendant.

All of the elements of vandalism aren't contained within burglary. So, under the elements test, vandalism isn't a lesser included offense of burglary. But vandalism and burglary are closely related—the proof required for each is similar, and the definitions of the crimes protect the same interest, which is property security. And the evidence—introduced by the prosecution to prove burglary—might suggest that vandalism occurred in this case. So, under a common interpretation, vandalism could be a lesser related offense of burglary.

Jury Instructions

The difference between lesser included and lesser related offenses can be important, particularly when it comes to jury instructions. Those instructions give jurors options as to which, if any, crimes to convict the defendant of. A jury instruction on a particular crime will explain precisely what that offense is so that the jury may consider whether the defendant committed it.

A lesser offense can serve as a fallback for prosecutors, giving them a way to obtain at least some kind of conviction when the jury might acquit the defendant of a more serious crime. In other words, for prosecutors who are concerned that a defendant might "get off" entirely, having a jury consider a lesser offense can be a way to hedge bets. By the same token, a defense lawyer who suspects that the jury is inclined to convict the defendant of something might ask a judge to give an instruction on a lesser offense, with the hope that the defendant will be able avoid a more severe conviction.

In California, to name one state, defendants may request that juries be given instructions allowing for conviction on lesser related offenses. But they have no unilateral right to such jury instructions. On the other hand, even if the prosecution or defense objects, a judge has to give a jury instruction on a lesser included offense if there's substantial evidence that the defendant is guilty only of that lesser offense. (People v. Birks, 19 Cal.4th 108 (1998).)

Getting Legal Help

As this article might suggest, issues like lesser included and lesser related offenses are complicated. And the law might vary from one state to another, and from state to federal court. These are among the reasons it's critical to get your explanation and advice from a knowledgeable criminal defense attorney if you're at any stage in a criminal prosecution.

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