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 VOLUME 7 - CHAPTER 92
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92.7 Intentional Murder

    92.7.5 Intentional Homicide: Lesser Offenses

    92.7.5.1 Murder: Accessory To Murder As Lesser Offense
    92.7.5.2 Evidence Of Premeditation Does Not Preclude Instruction On Unpremeditated Murder As Lesser Offense
    92.7.5.3 Doubt Whether First Or Second Degree Murder
    92.7.5.4 Doubt Whether Murder Or Manslaughter

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 VOLUME 7 - CHAPTER 92

PRACTICE NOTE: Even if accessory after the fact is not a lesser included offense of murder under a strict elements test, there should be a right to such an instruction as a defense theory. (See e.g., People v. Rohn (MI 1980) 296 NW2d 315, 320 [reversible error to refuse requested accessory after the fact instruction in murder case].)

Annotation, Lesser-Related State Offense Instructions: Modern Status, 50 ALR4th 1081.

See generally, NCJIC 92.7.1.2 [Intentional Murder: Federal Circuit Model Instructions And Notes].

See also generally, NCJIC 305.13.14 [Murder].

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 VOLUME 7 - CHAPTER 92

PRACTICE NOTE: If the record contains substantial evidence from which the jury reasonably could find that the defendant killed the victim without premeditation or deliberation, the jury should be instructed upon unpremeditated murder as a lesser offense of the premeditated murder charge. (See People v. Bradford (CA 1997) 15 C4th 1229, 1344-45 [65 CR2d 145].) Hence, even if strong evidence of premeditation has been presented, the jury must be given the alternative of second degree unpremeditated murder if the jury could reasonably conclude that the defendant might not have premeditated or deliberated.

    For example, in Bradford the victims had been lured to an isolated area and strangled by ligature. Nevertheless, the Supreme Court concluded that "[t]he record contained substantial evidence from which the jury reasonably could find the defendant killed [the victims] without premeditation or deliberation. Although defendant's initiation of the offenses by luring the victims to the same isolated location exhibits considerable premeditation and deliberation, the nature of the murders themselves would not preclude a finding that defendant acted upon impulse. The circumstance that the manner of killing, ligature strangulation, might be somewhat more time-consuming than other methods, for example, firing a weapon, does not obviate the conclusion that defendant might not have premeditated or deliberated before killing the victims." (Bradford, 15 C4th 1345.)

See generally, NCJIC 305.13.14 [Murder].

See generally, NCJIC 92.7.1.2 [Intentional Murder: Federal Circuit Model Instructions And Notes].

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 VOLUME 7 - CHAPTER 92

RATIONALE: Without an explanatory instruction the jurors may not understand that the presumption of innocence requires a verdict as to the degree of murder if they have a reasonable doubt whether the defendant is guilty of first or second degree.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, NCJIC 305.13.14 [Murder].

See generally, NCJIC 92.7.1.2 [Intentional Murder: Federal Circuit Model Instructions And Notes].

    If you find beyond a reasonable doubt that the crime of murder was committed by the defendant, but you have a reasonable doubt whether the killing was first degree murder or second degree murder, you must give the defendant the benefit of that doubt and vote for a verdict of second degree murder.

[Cf. CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 8.71 [Doubt Where First Or Second Degree Murder] (West, 6th Ed. 1996).]

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 VOLUME 7 - CHAPTER 92

RATIONALE: Without an explanatory instruction the jurors may not understand that the presumption of innocence requires a verdict of manslaughter if they have a reasonable doubt whether the defendant is guilty of murder or manslaughter.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, NCJIC 305.13.14 [Murder].

See generally, NCJIC 92.7.1.2 [Intentional Murder: Federal Circuit Model Instructions And Notes].

   If you find beyond a reasonable doubt that the killing was unlawful, but you have a reasonable doubt whether the killing was murder or manslaughter, you must give the defendant the benefit of that doubt and vote to find the defendant guilty of manslaughter rather than murder.

[See generally Wharton’s Criminal Evidence (West, 14th ed. 1986) § 2.3, p. 30; Wharton’s Criminal Procedure (West, 13th ed. 1989) § 473, p. 69; People v. Dewberry (CA 1959) 51 C2d 548, 555 [334 P2d 852]; cf.  CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 8.72 [Doubt Whether Murder Or Manslaughter] (West, 6th Ed. 1996).]