Defense Theory Instruction On Non-Included Lesser Offenses

by Thomas Lundy

A common defense strategy is to provide the jurors with a lesser offense option so that they don’t have an unwarranted "all or nothing" choice. (See Beck v. Alabama, 447 U.S. 625 (1980); People v. Barton, 12 Cal.4th 186, 196 (1995).) However, many jurisdictions limit instruction on lesser offenses to those which are either charged or meet the strict requirements for lesser included offenses. (See e.g., Carter v. United States, 528 US 1196 (2000); Hopkins v. Reeves, 524 U.S. 88 (1998); People v. Birks, 19 Cal.4th 108 (1998) [overruling People v. Geiger, 35 Cal.3d 510 (1984) which permitted instruction on lesser related offenses if requested].) Nevertheless, there are still strategies available for obtaining some form of instruction on uncharged non-included lessers. Several of these strategies are the subject of this article. 

B.  The Right To Present A Defense As Basis For Allowing The Jury To Find The Defendant Guilty Of A Non-Included Lesser Offense 

The cases which limit lesser offense instructions to included offenses typically rely on statutes or rules. (E.g., Carter v. United States,528 US 1196 (2000) [construing FRCP 31].) These cases generally do not consider the fact that, in some circumstances, a lesser offense can be a defense or defense theory. (See Delaney v. Superior Court, 50 Cal.3d 785, 809 (1990); see also Brown v. Commonwealth, 555 S.W.2d 252, 257 (1977) ["Evidence suggesting that the defendant was guilty of a lesser offense is, in fact and in principle, a defense against the higher charge..."]; Sanborn v. Commonwealth, 754 S.W.2d 534 (Ky. 1988) .) 

Moreover, there is a well-developed body of federal law establishing a federal constitutional basis under the 5th, 6th and 14th amendments to have the jury instructed on the theory of the defense. (See Mathews v. United States, 485 U.S. 58, 63 (1988) citing Stevenson v. United States, 162 U.S. 313 (1896) [refusal of voluntary manslaughter instruction in murder case where self-defense was primary defense constituted reversible error]; see also Keeble v. U.S., 412 U.S. 205, 213 (1973); U.S. v. Sotelo-Murillo, 887 F.2d 176, 178-79 (9th Cir. 1989); U.S. v. Lesina, 833 F2d 156, 159-60 (9th Cir. 1987); U.S. v. Escobar de Bright, 742 F.2d 1196, 1201 (9th Cir. 1984); People v. Wharton, 53 Cal.3d 522, 570-72 (1991).) 

Hence, notwithstanding it may be argued that a statute or rule which precludes instruction on a non-included offense should not be applied when the result would be to remove the defense theory from the jury’s consideration. For example, in Sanborn v. Commonwealth, 754 SW2d at 549-50, the defendant in a rape case had a right to an instruction on the lesser related (non-included) offense of abuse of a corpse based on the defense theory that the sex acts occurred after the victim was dead. That was so because reliance on a lesser charge is a defense which the defendant has the right to present to the jury. (Ibid.) 

In sum, the failure to instruct on a non-included offense when necessitated by the defense theory of the case may violate the defendant’s federal (5th, 6th and 14th Amendments) constitutional rights to due process, compulsory process and fair trial by jury. (See also Section D, below.) 

C.   Instruction That Jury Must Acquit If The Defendant Is Found Guilty Of A Non-Included Lesser Offense 

Even if the federal constitutional rights discussed above do not require an instruction allowing the jury to find the defendant guilty of a non-included lesser offense, instruction on the lesser may still be appropriate. 

For example, in U.S. v. Brown, 33 F.3d 1002 (8th Cir. 1994) the defendant testified that he did not participate in the robbery even though he attempted to retrieve the proceeds of the robbery after it had been completed. The court concluded that the accessory after the fact theory functions as a defense since the government did not charge Brown as an accessory after the fact. (Brown, 33 F.3d at 1004.) Accordingly, the trial court erred in rejecting the defense instruction that if the jury concluded that the defendant was an accessory after the fact, it must acquit. Hence, even though accessory after the fact was not a lesser included of robbery (but see U.S. v. Dinkane, 17 F.3d 1192, 1200 (9th Cir. 1994), the defense theory instruction was required. (See also U.S. v. Rivera-Figueroa, 149 F.3d 1, 6-7 (1st Cir. 1998) [agreeing with Brown’s rationale but concluding that the defense theory instruction should not include a full definition of the elements of accessory after the fact liability]; Gangl v. State, 539 So.2nd 132, 135 (Miss. 1989) [". . . defendant was prevented from instructing the jury on his theory of defense because of the court’s obedience to the formalistic distinction between what is a lesser included offense (and consequently punishable on an indictment charging the greater offense), and a separate and distinct offense (consequently not punishable unless charged in the indictment)"]; People v. Keefer, 65 Cal. 232, 232-233 (Cal. 1884) [where there is testimony tending to show that the defendant charged with murder was not personally present at the killing, and that the killing was not done in pursuance of any agreement or undertaking to which he was a party, but that the defendant aided in concealing the dead body, it is error to refuse to instruct the jury that if they so believe they must acquit].)

D.   Due Process Balancing 

The U.S. Supreme Court has consistently held that domestic rules of evidence may not be invoked to preclude a criminal defendant from establishing that he has been denied a fair trial. (See Rock v. Arkansas, 483 U.S. 44 (1987); Green v. Georgia, 442 U.S. 95 (1979); Davis v. Alaska, 415 U.S. 308 (1974); Chambers v. Mississippi, 410 U.S. 284 (1973); Washington v. Texas, 388 U.S. 14 (1967).) The Supreme Court has applied a balancing test in resolving conflicts between state rules of evidence and federal constitutional provisions, weighing the interest of the defendant against the state interest in the rules of evidence. (Green v. Georgia, supra, 442 U.S. at 97; Chambers, supra, 410 U.S. at 295; Washington v. Texas, supra, 388 U.S. at 19-23.) Several federal circuit courts of appeal have also utilized such a test. (Pettijohn v. Hall, 599 F.2d 476 (1st Cir. 1979); Dudley v. Duckworth, 854 F.2d 967, 971-72 (7th Cir. 1988); Alicea v. Gagnon, 675 F2d 913, 923 (7th Cir. 1982); Perry v. Rushen, 713 F.2d 1447, 1452-53 (9th Cir. 1983).) Also, exclusion of evidence has been found to be arbitrary or disproportionate "where it has infringed upon a weighty interest of the accused." (U.S. v. Scheffer, 523 U.S. 303, 308 (1998).) 

Hence, if a statute or rule precludes instruction on a defense theory, it may implicate the federal constitution in cases where the defendant’s constitutional right to present a defense outweighs the policy interest furthered by the statute or rule. 

E.   The Defendant May Be Permitted To Move For Discretionary Amendment Of The Charging Document To Add Uncharged Offenses 

Under the California statutes (California Penal Code § 1009) the defense is arguably permitted to move for discretionary amendment of the charging document. (See "Motion For Discretionary Amendment Of Information To Include Uncharged Offenses (PC 1009)," posted with this article at juryinstruction.com.)  

The same strategy may be available in other jurisdictions where the judge has discretionary power to amend the charges after they are filed. 

F.   The Jury Should Be Informed About The Uncharged Related Offenses So It Can Meaningfully Represent The Conscience Of The Community 

Although there is no right to directly instruct the jury regarding its power of nullification, that doctrine remains valid. (See Conrad, "Jury Nullification: The Lawyer’s Challenge," The Champion, Jan/Feb 2000, pp. 30-40.) And, it is the essence of the nullification doctrine that the jury bring the conscience of the community into the jury room. (Ibid.) In order to do so, the jury should be aware that the defendant could have been charged with related crimes but the District Attorney decided not to charge those crimes. Otherwise, the jury may falsely assume that the only law against the conduct committed by the defendant is the one under which he is charged and that defendant should be convicted to deter others. On the other hand, if the jury is aware of the other charges which could have been filed it will be able to focus on whether conviction of this defendant is appropriate.

G.   Sample Instructions 

SAMPLE 1 – General Form: Uncharged, Non-Included Offense 

A person who _________________ <factual basis for uncharged, non-included offense> is guilty of the crime of _________________ <description of unhcharged, non-included offense>. However, because the prosecutor did not charge the defendant with _________________ <description of uncharged, non-included offense> you will not have the option of convicting (him/her) of that crime. 

Therefore, if the prosecution has proved the defendant guilty beyond a reasonable doubt of _________________ <uncharged, non-included offense> but not _________________ <charged offense>, you must vote to return a verdict of not guilty. 

The prosecution must prove the defendant committed the crime[s] of _________________ <insert charged crime[s]>. The defendant contends (he/she) did not commit (this crime/these crimes) and instead is only guilty of _________________ <insert uncharged, non-included offense>. However, because the prosecutor chose not to charge the defendant with _________________ <uncharged, non-included offense> you will not have the option of convicting the defendant of that crime. 

Therefore, any juror who finds that the prosecution has proved the defendant guilty beyond a reasonable doubt of _________________ <uncharged, non-included offense> but not _________________ <charged offense>, must vote to acquit the defendant. 

The defendant contends that (he/she) is guilty of _________________ <uncharged offense> but not guilty of _________________ <charged offense>. However, because the prosecution has the burden of proof, the defendant does not need to prove that (he/she) is only guilty of _________________ <uncharged offense>. If you have a reasonable doubt that the defendant is guilty of _________________ <charged offense> rather than _________________ <uncharged offense> you must vote to acquit (him/her) of all charges. 

The Court further instructs the jury that __________ <name of defendant> is not required to establish that (he/she) was an accessory after the fact to your satisfaction, but if the evidence or lack of evidence in this case raises in the minds of the jury a reasonable doubt as to whether the defendant was only an accessory after the fact, then, in that event, you must give (him/her) the benefit of the doubt and may not convict __________ <name of defendant> of the crime of __________ <crime e.g, armed robbery>, and therefore, it would be your sworn duty to return a verdict of not guilty. 

[Source: Gangl v. State, 539 So. 2d 132, 135 (Miss. 1989).] 

SAMPLE 5 – Accessory After The Fact 

You are instructed that you may not convict defendant __________ <name of defendant> of __________ <crime e.g, first degree murder> if you believe (he/she) is only an accessory after the fact to __________ <crime e.g, first degree murder> nor may you convict (him/her) of __________ <crime e.g, armed robbery> if you believe (he/she) is only an accessory after the fact to __________ <crime e.g, armed robbery>. 

[Source: Carman v. State, 658 P.2d 131, 135 (Alaska Ct. App. 1983).] 

If you first find that there is a reasonable doubt as to whether __________ <name of defendant> committed the substantive offenses charged in Counts ____ and ____ but you find beyond a reasonable doubt that __________ <name of defendant> is an accessory after the fact, you must find (him/her) not guilty of Counts ____ and ____. 

[Source: United States v. Garcia, 405 F.3d 1260, 1273 (11th Cir. 2005) [government did not dispute that the above instruction corrected stated the law but appellate court found no abuse in refusing it because defendant was allowed to rely on the accessory theory during argument].]