FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 250
Go to Volume 11 Table of Contents  -  Go to Chapter 250 Table of Contents

250.6 Right To Defense Theory Instructions: Miscellaneous Issues

    250.6.1 Validity Of Common Law Defenses
    250.6.2 Strategy Note: Whether To Request Defense Theory Special Instruction Which May Limit Jury’s Consideration Of The Evidence
    250.6.3 Lesser Offense As Defense Theory

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 250

PRACTICE NOTE: In the absence of statutory provisions to the contrary, the common law defenses may remain applicable in various states or federal jurisdictions. (See LaFave & Scott, Substantive Criminal Law (West, 1986) 2.1; see also U.S. v. Bailey (1980) 444 US  394, 408-09 [62 LEd2d 575; 100 SCt 624] [common-law defenses may be employed as defenses to a statutory crime]; U.S. v. Newcomb (6th Cir. 1993) 6 F3d 1129, 1134; Keser v. State (WY 1985) 706 P2d 263, 269 [legislature abolished common-law crimes but retains common-law defenses].)

    Thus, potential defenses to criminal actions may not be specifically contained within the specific criminal statute. (See e.g., Mares v. State (WY 1997) 939 P2d 724, 727 [the legislature abolished common law crimes in Wyoming, but chose to retain common law defenses unless provided otherwise by statute].)

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 250

PRACTICE NOTE: As a matter of defense strategy it may be useful to consider the impact of a special instruction on defense evidence such as mental impairment or intoxication. In many jurisdictions, a special instruction will limit the jury’s consideration of such evidence. (E.g., intoxication only relevant to specific intent.) "It is interesting to note that where a special instruction on defense negating an element will limit the availability of a defense...the defendant who is permitted to introduce evidence and does not receive an instruction may be better off. (Robinson, Criminal Law Defenses (West, 1984) § 4(a) fn. 17.)

    In other words, the special instruction acts as a "limited purpose" instruction which may be viewed to accrue to the benefit of the prosecution in the same manner that most other limiting instructions accrue to the benefit of the defendant. Therefore, if neither the defense nor the prosecution requests such an instruction, it should not be given. (See FORECITE National™ 4.3.2.1 [Cautionary/Limiting Instructions Must Be Requested].)

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 250

PRACTICE NOTE: Although a lesser included offense is not normally a "defense" within the technical meaning of those terms as used in the penal or criminal codes, it has been held that the lesser included offense is, in fact and principle, "a defense against the higher charge." (Cooper, KENTUCKY INSTRUCTIONS TO JURIES § 1.03(c) [Defense–In General–Lesser Included Offenses] (Anderson, 4th ed. 1999); see also Vickers v. Ricketts (9th Cir. 1986) 798 F2d 369, 373.)

    See FORECITE National™ 300.7 [Failure To Instruct On Lesser Included Offenses In Noncapital Case].