The Doctrine of Lesser Included Offenses

• Publication year: 1992

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 16, No. 1FALL 1992

The Doctrine of Lesser Included Offenses

Kyron Huigens (fn*)

I. Introduction

Courts occasionally fail to appreciate the genius of their own law. The early Washington cases on lesser included offenses, for example, formed a complex and subtle doctrine- the clash and exacting balance of competing interests lying just below the surface of apparently simple standards. Recent cases, however, present a flat and awkward version of the doctrine. They uniformly ignore, misunderstand, and misapply the early law under the influence of a relatively recent formulation of the governing standard(fn1) that is inadequate in almost every respect.

This Article attempts to bring the early cases back to life, to uncover the origins and deeper logic of the doctrine, and to re-introduce the older, elegant solutions to the doctrine's central problems back into current practice. This Article is not, however, a simple restoration project. Rather, with regard to the first part of State v. Workman's(fn2) two-pronged standard, this Article explores the innate wisdom of the classic elements test and a failed attempt to supplant it-then proposes changing it. This change involves a minor and little-recognized variation on the classic test that, if expanded with due regard to the root constitutional and strategic concerns of the doctrine, significantly clarifies and strengthens it. With regard to the second prong, this Article proposes a wholesale replacement of the current formulation on the ground that it is fundamentally flawed. This proposed replacement is firmly based on a close and careful reading of the early cases that brings to light, for the first time in decades, the true nature and purpose of the inquiry.

These are ambitious goals, but neither the importance nor the complexity of the doctrine of lesser included offenses can be overstated. The doctrine permits either the defense or the prosecution in a criminal case to obtain a jury instruction on an offense not charged in the indictment or information.(fn3) At first glance, the doctrine seems odd. Ordinarily, a defendant is not permitted to choose the offense for which he will be tried.(fn4) Nor is the prosecution ordinarily permitted to obtain a conviction without giving the defendant notice from the outset of the offense he is accused of committing.(fn5)

The mystery largely dissipates, however, when the governing rule is stated. Under the leading case of State v. Workman,(fn6) a lesser offense is a lesser included offense if two conditions are met. First, each element of the lesser offense must be a necessary element of the greater offense. Second, the evidence in the case must support an inference that the lesser crime was committed.(fn7) "Put another way, if it is possible to commit the greater offense without having committed the lesser offense, the latter is not an included crime."(fn8)

It is not surprising, then, that either the defense or the prosecution should be permitted to use the doctrine to obtain an instruction on an offense not charged. The jury may be instructed on a lesser included offense because that accusation is implicit in the offense that has been charged. The defendant necessarily has had notice of, and has defended against, the elements of the lesser offense in the course of the trial of the greater offense. This is true by definition: under Workman, all the elements of the lesser offense were necessarily also included in the charge and trial of the greater offense.(fn9)

Even from this elementary account of the doctrine, however, one senses its complexity. The doctrine of lesser included offenses, unlike other principles of criminal law, does not simply protect the rights of one or another of the parties. Rather, the doctrine serves both sides, providing each a strategic flexibility-a fall-back position-in the trial of a case, while preserving both prosecutorial discretion and the defendant's right to notice and the opportunity to defend. Properly formulated, the doctrine not only serves the rights and interests of the respective parties, but maintains them in an equitable balance.(fn10)

Furthermore, and largely beyond the concerns of the litigants, the doctrine preserves the rationality of jury verdicts and the integrity of the criminal law. The evidence prong, of course, forecloses jury speculation by barring verdicts that the evidence will not support. But on a deeper level, the doctrine as a whole ensures a close fit between the evidence actually developed at trial and the offense of which the defendant is ultimately convicted, regardless of the offense with which he was originally charged. In a very real sense, the doctrine of lesser included offenses maintains contact between the criminal code and the world in which crimes are committed.(fn11)

The remarkable thing is that none of the doctrine's depth or complexity is apparent in the governing standard. The first prong, especially, is easy to apply. For example, a person is guilty of first degree perjury if, in an official proceeding, while under oath, he makes a materially false statement that he knows to be false.(fn12) A person is guilty of false swearing if, while under oath, he makes a false statement that he knows to be false.(fn13) Because all of the elements of false swearing are three of the five elements of perjury in the first degree, the first prong of Workman is met as to false swearing.

The simplicity of the elements test, however, is oddly deceiving. Once one considers the underlying aims of the doctrine, it seems that something more subtle might be needed. For a time, the Ninth Circuit and other Federal Courts of Appeals certainly thought so. Their opinions derided the elements test as mechanistic, artificial, and altogether inadequate to the task. Those courts, consequently, experimented for a time with an alternative approach, the "inherent relationship" test.(fn14) Section II of this Article will consider that alternative, its flaws, its ultimate rejection by the United States Supreme Court, and the Washington courts' flirtations with it, as a demonstration of the hidden virtues of the modest elements test.(fn15)

Section III of this Article will show how, in spite of its virtues, the elements test can be improved. This proposal involves expanding a little-known variation that was originally formulated as a solution to perhaps the most difficult issue arising under the elements test. The issue is whether, how, and why there can be a lesser included offense to an attempt.(fn16) Workman itself was an attempt case, and the court coped brilliantly with the problem. It formulated what I will call the "inherent characteristic" rule. The inherent characteristic rule involves a very minor modification to the elements test that solves the attempt problem while faithfully observing the underlying values and logic of the elements test itself. Because Workman's rationale for this rule is cryptic, it is valuable in itself to see what is going on beneath the surface of the opinion.(fn17)

Ultimately, however, it is important to probe beneath the surface of Workman because the problem of lesser included offenses to attempts is but one aspect of a larger issue under the elements test: the threshold question of what counts as an "element." Not surprisingly, the Workman opinion's solution to the attempts problem illuminates the more general issue. Section III of this Article, accordingly, proposes expanding the inherent characteristic rule beyond attempt cases to a general application.(fn18)

Section IV of this Article considers Workman's second prong: the requirement that the evidence in the case support an inference that the lesser crime was committed.(fn19) It sounds like a straightforward sufficiency of the evidence test. It is not.(fn20) What is at issue is not the sufficiency of the evidence, but a type of preclusion by the evidence that is peculiar to the doctrine of lesser included offenses.

It is here that the supreme court's incomprehension of its own rich case law has been most egregious. In at least one passing reference to preclusion, the Workman opinion indicates that the court still understood the purpose of the evidence prong.(fn21) Unfortunately, the court failed to incorporate that understanding into its formulation of the governing test. Workman's reference to evidence that will "support an inference" that the lesser offense was committed(fn22) suggests, deceptively, that nothing more than sufficiency is at issue. Later courts have fallen completely under the sway of that suggestion, to the point that they have begun to elaborate the purported sufficiency standard,(fn23) even while ignoring the most basic limitations on appellate review of jury determinations.(fn24)

The evidence prong, properly understood, has nothing to do with quantities of evidence.(fn25) Each new case elaborating the test for sufficiency simply buries the true meaning of the evidence prong even deeper. Ironically, however, each new corollary to the specious sufficiency standard, once examined, also turns out to be an attempt to capture the special sort of preclusion to which the evidence prong itself originally attended. Because those corollaries are corollaries to a false rule, they are necessarily flawed.(fn26) It makes more sense, obviously, to restore the original meaning of the...