The Oklahoma Bar Journal March 2023

C riminal L aw

To Be ‘Lesser Related’ or Not To Be, That is the Question – An Exploration of the ‘Lesser Related’ Crimes Doctrine By Caleb A. Harlin

J URY TRIALS ARE THE PINNACLE OF THE PRACTICE OF LAW – a time-honored tradition with present-day relevance. A forum for presenting differing points of view. A check against government overreach. A stage for storytelling. A constitutional touchstone.

law – whether you are a judge, a prosecutor or a defense attorney – you will eventually encounter this doctrine. Since the topic of “lesser related” crimes originates from the doctrine of lesser included offenses, this discussion will begin there. offenses is rooted in the due process concept of notice. “Simply put, due process requires that a defendant have notice of the crime with which he is charged.” 1 “It is ancient doc trine of both the common law and of our Constitution that a defendant cannot be held to answer a charge not contained in the indictment brought against him.” 2 In Oklahoma, this doctrine is codified at 22 O.S. §916: “The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the DUE PROCESS The doctrine of lesser included

offense.” For decades, Oklahoma courts primarily applied the “elements” test to interpret this statute. 3 This meant, “[A]n offense is a lesser included one only where the greater offense cannot be committed without necessarily committing the lesser.” 4 This par alleled the U.S. Supreme Court’s application of the doctrine. 5 But the elements test is not the only test found in Oklahoma case law. Three other approaches have appeared at various times: the pleadings test, 6 the evidence test 7 and a hybrid of the pleadings and evidence tests. 8 The “pleadings” test considers “not only ... the strict elements of the offenses, but look[s] to the facts alleged in the indictment/information to determine if a lesser included offense of the greater charged offense existed.” 9 The “evidence” test “considers not only the ele ments [of the charged crime], but [also] looks to the crimes the trial

In the criminal defense con text, a jury trial is also the lens for evaluating every case that comes through the door of a law office. Every witness, statement and shred of evidence must be viewed in light of how it could be used – or defended against – at a jury trial. For some clients, the jury trial is a moment of vindication. For others, it is their last moment of freedom. One of a criminal defense attorney’s first jobs is to evaluate the risk of conviction for each charge against a client. What is the most likely outcome at a jury trial? If the client is convicted, how can the attorney obtain the best outcome at sentencing? What is the likelihood the jury will empathize with the client enough to choose a lesser offense instead of a greater one? Should the attorney talk to the jury about a lesser offense at all? This article explores the issue of “lesser related” crimes. If you practice long enough in the area of criminal

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THE OKLAHOMA BAR JOURNAL