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265.2 Evidence Required For Lesser Offense Instruction

    265.2.1 Any Substantial Evidence Test For Lesser Included Offenses
    265.2.2 Lesser Included Offense: Jury Function Theory --Jury's Discretion To Accept Or Reject The Evidence In Whole Or Part
    265.2.3 Lesser Included Offense: Court Should Not Evaluate Witness Credibility
    265.2.4 Lesser Included Offense: Defendant Need Not Introduce Evidence
    265.2.5 Doubt Should Be Resolved In Favor Of Instruction On Lesser Included Offense

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PRACTICE NOTE: Once it is found that a cognizable lesser offense is present in the case, typically a second determination must be made as to whether instruction is necessary under the facts. The second step requires the court to determine whether the evidence presented at trial provides a rational basis for the jury to return an acquittal on the greater offense, but a conviction on the lesser offense. (State v. Williams (NE 1993) 503 NW2d 561, 566; see also State v. Detrich (AZ 1994) 873 P2d 1302, 1305; Rousseau v. State (TX 1992) 855 SW2d 666, 673; State v. Berlin (WA 1997) 947 P2d 700, 702.)

    This determination should be made in favor of the giving the lesser offense instruction if "there is any substantial evidence tending to prove that lesser included offense." (State v. Williams (KS 1997) 947 P2d 25, 28.) "[A defendant] has a right to an instruction on all lesser included offenses supported by the evidence at trial so long as (1) the evidence when viewed in the light most favorable to the defendant’s theory, would justify a jury verdict in accord with the defendant’s theory and (2) the evidence at trial does not exclude a theory of guilt on the lesser offense." (State v. Harris (KS 1996) 915 P2d 758, 768-69.) Unless the evidence is clear and uncontroverted that the greater crime was the only one committed, instruction on the lesser included offense should be given. (See e.g., Broady v. Commonwealth (VA 1993) 429 SE2d 468, 474.) "Juries are finders of fact ... They should and do have a wide latitude in finding the facts. Even if the evidence is overwhelming that the defendant is guilty of the crime with which he is charged, the court must give a charge on a lesser included offense as to which there is any evidence." (Gillespie v. State (FL 1983) 440 So2d 8, 10.)

See generally, FORECITE National™ 305.12.2 [Lesser Included Offenses].

See generally, FORECITE National™ 265.1.4 [Lesser Included Offenses: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: The jury has the discretion to accept or reject the evidence in whole or part. Accordingly, there could be a basis for the jury to find a lesser included offense whenever there is evidence of the greater offense. (See State v. Jeffries (IA 1988) 430 NW2d 728, 733-38 [court adopts the "jury function theory"].)

See generally, FORECITE National™ 305.12.2 [Lesser Included Offenses].

See generally, FORECITE National™ 265.1.4 [Lesser Included Offenses: Federal Circuit Model Instructions And Notes].

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 VOLUME 12 - CHAPTER 265

PRACTICE NOTE: The credibility of the evidence should not be weighed in deciding whether there is sufficient evidence to instruct on a lesser included offense. (See FORECITE National™ 3.3.1.3 [Court May Not Evaluate Witness Credibility To Deny Instruction Request]; see also PATTERN INSTRUCTIONS FOR KANSAS - CRIMINAL, PIK -Criminal 3d 55.01 [Anticipatory Crimes-Attempt], comment p. 150 (Kansas Judicial Council, 3rd ed. 1997 Supp.) ["A lesser included offense instruction must be given even though the evidence is weak and inconclusive and consists solely of the testimony of the defendant"].)

See generally, FORECITE National™ 305.12.2 [Lesser Included Offenses].

See generally, FORECITE National™ 265.1.4 [Lesser Included Offenses: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: "It is not incumbent upon the defendant to introduce evidence to support a request for an instruction on the lesser included offense when the State has introduced only enough evidence to raise an inference that would justify a conviction on either the offense charged or a lesser included offense." (Atterberry v. State (OK 1976) 555 P2d 1301, 1304.)

    Moreover, it is not necessary for the defendant to directly testify as to a lesser intent than that charged. For example, in People v. Anderson (CA 1983) 144 CA3d 55, 62 [192 CR 409], the court rejected the attorney general's argument that instruction on the defense of consent is only necessary when the defendant has testified as to consent. "The flaw in the argument is that it assumes a person's state of mind can only be show by direct evidence. It is elementary that a defendant's state of mind is most often shown through circumstantial evidence ...." (Anderson, 144 CA3d at 62.)

    However, if the defendant does testify or if other defense evidence is presented this evidence may not be rejected by the court on credibility grounds and must be viewed in the light most favorable to the instruction request. (See FORECITE National™ 16.3.1 [Jury Must Consider All Of The Evidence].)

See generally, FORECITE National™ 305.12.2 [Lesser Included Offenses].

See generally, FORECITE National™ 265.1.4 [Lesser Included Offenses: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: "Ordinarily, if a court is in doubt, it should submit both [the greater and lesser offense] upon request." (Zenou v. State (WI 1958) 91 NW2d 208, 215; see also State v. Hinsa (MO 1998) 976 SW2d 69, 72; State v. Barnard (MO 1998) 972 SW2d 462, 464-65 [doubts concerning whether to instruct on a lesser-included charge should be resolved in favor of including the instruction]; State v. Tivis (MO 1997) 948 SW2d 690, 694 [same]; Valdez v. State (OK 1995) 900 P2d 363, 378 [same]; Day v. State (WI 1972) 201 NW2d 42, 43; UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON), UCrJI G-19 [User Guide] (Oregon State Bar, 1998) ["...[W]hen the defendant requests a lesser included offense instruction...trial judges should resolve doubts about the request in favor of such an instruction. [Citation.]".)

    See also FORECITE National™ 3.3.1.5 [Doubt Resolved In Favor Of Defendant].

    See also FORECITE National™ 250.4.8 [Defense Theory Instructions: Benefit Of Doubt To Defendant].

    See also FORECITE National™ 265.4.2 [Reasonable Doubt As To Greater Charge Must Be Resolved In Favor Of Lesser].

See generally, FORECITE National™ 305.12.2 [Lesser Included Offenses].

See generally, FORECITE National™ 265.1.4 [Lesser Included Offenses: Federal Circuit Model Instructions And Notes].