The Oklahoma Bar Journal March 2023

evidence tends to prove.” 10 Finally, the “hybrid pleadings/evidence” test allows the court to review “all materials made available to a defendant through discovery and at the preliminary hearing, not just the Information.” 11 Of these different approaches, the elements test appears to have been followed more than the others. 12 NEW PROCESS In 1999, Oklahoma law finally settled on the evidence test for the doctrine of lesser included offenses. 13 The case that formally made the announcement was Shrum v. State . The Shrum court noted that recent decisions of the “Court continue[d] to be inconsis tent in [their] approach to lesser included offenses.” 14 In one case, the court had applied “the strict statutory elements approach,” 15 while another case “utilized the hybrid pleading/evidence test.” 16 The Shrum court reiterated the due process roots of the doctrine of lesser included offenses: “The prin cipal impediment to administering instructions on related, but not necessarily included, offenses is the defendant’s due process right to

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THE OKLAHOMA BAR JOURNAL