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275.1 Lesser Included Offenses: Deliberation And Verdict Miscellaneous Issues

    275.1.1 Lesser Included Offenses: Definition Of Lesser Offense Should Focus On Distinction Between Greater And Lesser Offenses
    275.1.2 Lesser Included Offenses: Not Intended To Relieve Jury Of Duty To Acquit If Evidence Is Insufficient
    275.1.3 Lesser Included Offenses: Reference To “Lesser” Included Offense May Imply A Lesser Burden Of Proof
    275.1.4 Not Guilty Verdict As To Greater Offenses Based On Self Defense Precludes Conviction Of Lesser Included Offense
    275.1.5 Instruction On Lesser Included Offenses As To One Codefendant And Not The Other May Improperly Direct The Jury
    275.1.6 Lesser Included Offenses: Improper For Counsel To Comment Upon Legal Issues Regarding Lesser Offenses
    275.1.7 Instruction On Lesser Included Sentencing Enhancements
    275.1.8 Mistrial On Greater Offense Requires Same Result On Lesser Included Offense

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    275.1.1    Lesser Included Offenses: Definition Of Lesser Offense Should Focus On Distinction Between Greater And Lesser Offenses                    

    See FORECITE National™ 270.4.8 [Definition Of Lesser Offense Should Focus On Distinction Between Greater And Lesser Offenses].

 VOLUME 13 - CHAPTER 275

RATIONALE: Instruction on a lesser included over defense objection may undermine the defendant's theory of the case. Therefore, an explanatory instruction may be appropriate to limit the prejudice to the defendant.

POINTS AND AUTHORITIES: It is recognized that the availability of a lesser offense as a middle ground between complete acquittal and conviction of the greater offense may result in juror compromise. (See FORECITE National™ 296.2.6.5 [Over Charging/Juror Compromise: Prejudicial Effect Of Over-Charging/Over-Instruction When Defendant Convicted Of Lesser Offense]; Price v. Georgia (1970) 398 US 323, 327 [90 SCt 1757; 26 LEd2d 300]; Christie v. State (AK 1978) 580 P2d 310, 318 [when no evidence exists to substantiate instructions on lesser degrees but they are given, the jury may compromise its doubt as to a greater degree by convicting of a lesser degree]; People v. Butler (NY 1994) 644 NE2d 1331, 1335; Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 2.14 [Charging The Jury-Lesser Included Offenses] (West, 1999) [Submitting lower crimes in an inappropriate case may constitute "an invitation to the jury to foreswear its duty and return a compromise or otherwise unwanted verdict"].) Accordingly where the defense actually would have preferred that an all-or-nothing option be presented to the jury, but the court instructed on the lesser offense over the defendant’s objection as it may do in many jurisdictions (see FORECITE National™ 265.3 [Impact Of Counsel’s Request, Objection Or Silence On Duty To Give Lesser Offense Instruction]), it may be appropriate to attempt to limit the possibility of jury compromise by use of a special instruction.

    Jury compromise is a particular danger where stronger jurors may prevail upon weaker jurors, where feelings regarding the defendant may unduly influence the verdict, and where there is concern over protracted proceedings or efficient use of judicial resources. (See e.g., People v. Boettcher (NY 1987) 505 NE2d 594, 597-98.)

    Furthermore, the jury should be instructed where that a sequential reasoning process of moving from more serious principal offenses to lesser included offenses does not "deter the jury from returning the proper available verdict" or tacitly allow a progressively lower standard of proof. (See e.g., State v. Harris (NJ 1995) 662 A2d 333, 347.)

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

    The lesser offense upon which you have been instructed merely provides an available verdict if the evidence fails to prove the greater charge but does prove the lesser offense.  If the prosecution has failed to prove beyond a reasonable doubt that the defendant is guilty of any offense, it is your duty to acquit [him] [her] uninfluenced by the availability of the lesser offense. The availability of the lesser offense does not relieve you pf your duty to acquit if the prosecution has failed to prove guilt beyond a reasonable doubt. 

[See ALASKA PATTERN CRIMINAL JURY INSTRUCTIONS 1.38 [Lesser Included; Not Intended To Relieve Duty] (Alaska Bar Association, 1987).]

 VOLUME 13 - CHAPTER 275

    See FORECITE National™ 279.6 [Instruction On Consequences Of Verdict Not Unconstitutional].

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RATIONALE: Once the jury find that the defendant is not guilty of the greater offense based on self defense, it would be illogical and inconsistent with that finding to convict the defendant of a lesser offense based on the same act.

POINTS AND AUTHORITIES: In a case where there is a defense of self defense instruction on different degrees of homicide, the jury should be instructed at the outset that, in the event they find the defendant not guilty of the greater offense by reason of justification it should acquit and cease deliberation without regard to any lesser included offenses. (See e.g., Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 5:20 [Defenses- Justification] pp. 267-72 (West, 1999); see also People v. Castro (NY 1987) 516 NYS2d 966, 968; People v. McManus (NY 1986) 496 NE2d 202, 204-05.)

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

STRATEGY NOTE: These instructions effectively provide an all-or-nothing choice for the jury which may or may not be desirable depending on the defense strategy. (See generally FORECITE National™ 265.3.3 [Whether Lesser Included Offense Should Be Given Sua Sponte Or Only On Request].)

See generally, FORECITE National™ 305.19.1 [Self Defense].

See generally, FORECITE National™ 253.4.1.20 [Self Defense:  Federal Model Instructions].

    Should you find the defendant not guilty of the charge of _________________ (insert greater charge) based on self defense you must also return a verdict of not guilty on the charge of _________________ (insert lesser charge).

[Source: FORECITE National™.]

    If you decide that the defendant is not guilty of ______ (greater offense) based on self defense, you may not convict the defendant of ______ (lesser offense). (greater offense) based on self defense, you may not convict the defendant of ______ (lesser offense).

[Source: FORECITE National™.]

    You have been instructed on both ______ (greater offense) and ______ (lesser offense). However, these options are only available if you first find that the prosecution proved beyond a reasonable doubt that the defendant did not act in self defense. (greater offense) and ______ (lesser offense). However, these options are only available if you first find that the prosecution proved beyond a reasonable doubt that the defendant did not act in self defense. If you find that the prosecution has failed to meet its burden to disprove self defense you may not convict the defendant of either ______ (greater offense) or ______ (lesser offense).

[Source: FORECITE National™.]

    In the event that you reach a verdict of not guilty based on self defense as to any of the offenses submitted to you, you should simply render a verdict of acquittal and cease deliberation without regard to any lesser included offense.

[Source: FORECITE National™.]

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    See FORECITE National™ 19.2.4 [Instruction On Lesser Included Offenses As To One Codefendant And Not The Other May Improperly Direct The Jury].

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PRACTICE NOTE: It is generally improper for the prosecutor to comment regarding legal issues related to lesser offenses. For example, in State v. Neuser (WI 1995) 528 NW2d 49, 51, the prosecutor made the following remarks: "As to the lesser included offense, the court did not submit that. The defense requested that and the court granted the request. It’s not the court ordering that it be done." (Neuser, 528 NW2d at 51.) This was held to be improper argument: "The question of whether a lesser included offense is to be submitted is a legal issue which is resolved between the court and counsel. It does not involve the jury, and the proceedings relative to the question are not played out before the jury. With the court having made that decision, it is not within the province of either counsel to opine to the jury why the court may have chosen to do so. Rather, the role of counsel is to argue whether the evidence supports the greater, lesser or neither charge." (Neuser, 528 NW2d at 52; see also People v. Miller (CA 1974) 43 CA3d 77, 82-83 [117 CR 491] [improper to inform jury that court's failure to give lesser instruction on theft gave jury only one chance at the case].)

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    See FORECITE National™ 116.1 [Lesser Sentencing Enhancement As Defense Theory To Charged Greater Enhancement Allegation].

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    275.1.8    Mistrial On Greater Offense Requires Same Result On Lesser Included Offense

PRACTICE NOTE: The rationale of the acquittal-first rule precludes allowing the jury to deliberate and return a verdict on the lesser included charge if they have not first acquitted on the greater. (State v. Sawyer (CT 1993) 630 A2d 1064.) Therefore, if a mistrial is declared as to the greater it must also be returned as to the lesser. (See State v. Salgado (CT 2001) 778 A2d 24.)