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265.1 Determining Lesser Included Offenses

    265.1.1 Lesser Included Offense: Elements Test
    265.1.2 Lesser Included Offense: Model Penal Code Test
    265.1.3 Lesser Included Offense: Charging Documents Test
    265.1.4 Lesser Included Offense: Federal Circuit Model Instructions And Notes

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PRACTICE NOTE: The most common approach is the "elements test." "Under this test, one offense is not 'necessarily included' in another unless the elements of the lesser offense are a subset of the elements of the charged offense. Where the lesser offense requires an element not required for the greater offense, no lesser included instruction is to be given ..." (Schmuck v. U.S. (1989) 489 US 705, 715 [109 SCt 1443; 103 LEd2d 734]; see also Carter v. U.S. (2000) 530 US 255, 260-61 [120 SCt 2159;147 LEd2d 203] [lesser included defined as "subset" of charged offense]; Hopkins v. Reeves (1998) 524 US 88, 98, fn 6 [118 SCt 1895; 141 LEd2d 76]; State v. Black (SD 1993) 506 NW2d 738, 743; State v. Berlin (WA 1997) 947 P2d 700, 702 [comparing statutory elements of lesser offense to determine whether all of them are contained in the greater offense].) This is essentially the same test adopted in Blockburger v. U.S. (1932) 284 US 299, 304 to determine whether two offenses should be deemed the same for purposes of double jeopardy. 

See generally, FORECITE National™ 305.12.2 [Lesser Included Offenses].

See generally, FORECITE National™ 265.1.4 [Lesser Included Offenses: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: The Model Penal Code test is somewhat broader than the elements test. (See Blair, Constitutional Limitations on the Lesser Included Offense Doctrine, 21 AmCrimLRev 445, 448-9 (1984).) Under the Model Penal Code approach:

    A defendant may be convicted of an offense included in an offense charged in the indictment [or the information]. An offense is so included when:

(a) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or

(b) it consists of an attempt or solicitation to commit the offense charged or to commit an offense otherwise included therein; or

(c) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission.

(Model Penal Code §1.07(4) (1985).)

See generally, FORECITE National™ 305.12.2 [Lesser Included Offenses].

See generally, FORECITE National™ 265.1.4 [Lesser Included Offenses: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: Another test looks to the terms of the charging document. Under this test a crime is a lesser included offense of another if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed. (See People v. Clark (CA 1990) 50 C3d 583, 636 [268 CR 399] [offense is LIO if (1) included within the statutory elements; or (2) "the charging allegations of the accusatory pleading include language describing it in such a way that if committed in that manner the lesser offense must necessarily be committed"]; see also State v. Curtis (ID 1997) 944 P2d 119, 121 [court looks both to the statutory elements and to the information to determine whether it "charges the accused with a crime the proof of which necessarily includes proof of the acts that constitute the lesser included offense"].) A similar approach is used in Arizona (see e.g., State v. Teran (AZ 1981) 635 P2d 870), California (see People v. Lopez (CA 1998) 19 C4th 282, 288 [79 CR2d 195]; People v. Clark, supra,), and Illinois (see e.g., People v. Novak (IL 1994) 643 NE2d 762, 772).

RESEARCH NOTES:

See generally, FORECITE National™ 305.12.2 [Lesser Included Offenses].

See generally, FORECITE National™ 265.1.4 [Lesser Included Offenses: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: Some jurisdictions use the more flexible "cognate" or "inherent relationship" test. (See e.g., People v. Beach (MI 1988) 418 NW2d 861, 866-68 [applying the "cognate evidence" approach: a lesser included offense instruction must be given even though all of the statutory elements of the lesser offense are not contained in the greater offense, if the "overlapping elements relate to the common purpose of the statutes" and the specific evidence adduced would support an instruction on the cognate offense]; see also State v. Meadors (NM 1995) 908 P2d 731, 735-37.)

    This test appears to operate in a similar manner to the Model Penal Code by permitting instruction on related offenses that share some common elements and are of the same class or category but may also contain an element or elements not included in the greater offense. (See FORECITE National™ 265.1.2 [Lesser Included Offense: Model Penal Code Test].)  For example, in People v. Jones (MI 1975) 236 NW2d 461, 464, the offense charged (second degree murder) and the lesser offense on which the instruction was requested (careless, reckless, or negligent discharge of a firearm causing death), were found to be sufficiently related due to an overlap of elements and a common statutory purpose, i.e., protecting against killing or injury to the person. This is similar to the lesser related test initiated in California by People v. Geiger (CA 1984) 35 C3d 510 [199 CR 45] but overruled in People v. Birks (CA 1998) 19 C4th 108 [77 CR2d 848]. The cognate test is also inconsistent with Hopkins v. Reeves (1998) 524 US 88, 98-99 [118 SCt 1895; 141 LEd2d 76].

    Moreover, in circumstances where the defense theory is that the defendant did not commit the charged offense but instead committed a nonincluded lesser related offense (e.g., accessory) there may be a constitutional right to a defense theory instruction on the nonincluded charge. (See FORECITE National™ 267.3 [Right To Present A Defense As Basis For Instruction On Nonincluded Lesser Offense].)

See generally, FORECITE National™ 305.12.2 [Lesser Included Offenses].

See generally, FORECITE National™ 265.1.4 [Lesser Included Offenses: Federal Circuit Model Instructions And Notes].