Some crimes are related to, but not included within, other crimes. This distinction may be significant when it comes time for jury instructions.
Updated By Micah Schwartzbach, Attorney
“Lesser related offense” is a criminal law term for a crime that’s less serious than, but in some way similar to, another crime. There is a subtle, but important, difference between lesser related offenses, and lesser included offenses.
Crimes consist of elements, like a recipe consists of ingredients. Someone who commits each and every element of a crime has committed the crime. For example, the crime of possession of marijuana might contain the following elements:
- knowingly and unlawfully
- possessing marijuana.
Under this definition, someone who has marijuana in his backpack possesses marijuana, and thereby satisfies the second element. But if a friend put the “weed” in the backpack without the backpack owner’s knowledge, then part of the first element—acting “knowingly”—isn’t satisfied. So, a backpack owner in this position hasn’t committed possession of marijuana.
Lesser Included Offenses
A lesser included offense is a crime that is part of another, more serious offense. Courts have used different methods to determine whether one crime is necessarily included within another. Some have looked at the allegations in the charging document; others have looked the actual evidence produced by the prosecution. But the most common way of determining whether a crime is “lesser included” is to look at its elements in the abstract. (For much more on these approaches, see Lesser Included Offenses.)
Under the elements test, the greater crime contains every element of the lesser included crime, plus one or more additional elements. Again, take marijuana law for example. Suppose the relevant law defines possession of marijuana for sale using the following elements:
- knowingly and unlawfully
- possessing marijuana
- with the intent to sell it.
The elements of marijuana possession are the same as the first two elements of marijuana possession for sale. The only difference between the crimes is the added element of intent to sell in the more serious offense. So, under the elements test and these crime definitions, possession of marijuana is a lesser included offense of possession of marijuana for sale.
Lesser Related Offenses
The term “lesser related offense,” on the other hand, often applies where two crimes are somehow similar but have different elements—neither crime contains 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:
- 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.
Lesser related offenses are important, both for defendants and prosecutors. Depending in part on state law, a jury might have the choice of convicting a defendant of a lesser related offense rather than the more serious charge.
For defendants who are pretty sure they are going to be convicted of some crime, lesser related—and lesser included—offenses offer a chance at being convicted of a crime with a lesser penalty. For prosecutors who are concerned that a defendant might “get off” entirely, having a jury consider a lesser offense is a way to hedge bets.
Jury Instructions Required?
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. (People v. Birks, 19 Cal.4th 108 (1998).) Judges there may decline lesser-related-offense instructions more often than they do lesser-included-offense instructions.
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 seek explanation and advice from a knowledgeable criminal defense attorney.