Some crimes are completely encompassed by other crimes, such that someone who commits the greater crime must inevitably commit the lesser crime. Often, prosecutors use a lesser included offense in plea bargaining. They may offer to reduce the charge from the greater offense to the lesser offense in exchange for a guilty plea. Or a prosecutor might go to trial on the lesser charge if they are uncertain about getting a conviction on the greater charge.
Sometimes a judge might determine whether a crime is a lesser included offense of another crime by considering the evidence presented by the prosecution in the case. In other situations, however, courts might take a less fact-specific approach so that they can develop a more consistent rule for whether one crime is a lesser included offense of another crime.
This involves reviewing the charging document and its description of how the offense occurred. If someone allegedly used a gun to commit homicide, assault with a deadly weapon may be a lesser included offense of a murder or manslaughter charge.
This is the most common way to determine whether one crime is a lesser included offense of another crime. It is the approach that is the furthest removed from the details of a specific case. The court will consider only the definitions of each crime, instead of the facts in the evidence or the charging document. A crime will be a lesser included offense of another crime only if the second crime includes every element of the first crime, in addition to at least one other element.
Considering murder or manslaughter together with assault with a deadly weapon would lead to a different result by using this approach. Murder does not require the use of a deadly weapon. On the other hand, drug possession likely would be found to be a lesser included offense of drug distribution by using this approach. This is because drug possession usually requires the prosecution to prove that the defendant had control over an illegal substance and knew that they possessed it and that it was illegal. The prosecution would need to prove each of these elements to get a conviction for drug distribution as well, in addition to the elements of distributing and intending to distribute the drug.
Lesser Related Offenses
These are somewhat different from lesser included offenses. A lesser related offense is a crime that shares some elements with the greater crime, but the crimes do not completely overlap. Thus, being guilty of the greater crime does not mean that the defendant is automatically guilty of the lesser crime. If the crimes are sufficiently similar, however, the judge might instruct the jury on the lesser related offense. It might offer a fallback option if the jury does not convict the defendant of the greater crime.
Lesser related offenses also may be a way of working around an overly technical result from the elements test for lesser included offenses. Assault with a deadly weapon might be a lesser related offense of murder, for example, which might be an appropriate alternative under the facts of a certain case.