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 VOLUME 14 - CHAPTER 295
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295.3 Cognizability Of Instructional Error On Appeal: Raising Issues That Have Not Been Preserved Below

    295.3.3 Overcoming Invited Error

    295.3.3.1 Invited Error: General Principles
    295.3.3.2 Invited Error: Inapplicable Where Requested Instruction Has Been Changed
    295.3.3.3 Invited Error: Must Be Caused By Counsel
    295.3.3.4 Waiver: Joining D.A.'s Request For Instruction

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
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 VOLUME 14 - CHAPTER 295

PRACTICE NOTE: When counsel makes a conscious and deliberate tactical choice to request a particular instruction, any error in giving that instruction will normally be deemed to be invited. (See People v. Wader (CA 1993) 5 C4th 610, 657-58 [20 CR2d 788]; see also People v. Jackson (CA 1996) 13 C4th 1164, 1223 [56 CR2d 49]; State v. Timoteo (HI 1997) 952 P2d 865, 872 [principles of estoppel, waiver, and invited error forestall a midstream change in legal positions].) However, a defendant who is barred from raising instructional error by the invited error doctrine may "'always claim he received ineffective assistance of counsel.' [Citation.]" (Wader, 5 C4th at 658.)

STRATEGY NOTE: Because errors in requested instructions may be held to be invited, counsel may wish to not formally request standard pattern instructions which will be given anyway under request by the D.A., or by the court sua sponte. Of course, there will still be a problem on appeal if there is no specific objection. However, the lack of an objection will likely be easier to overcome then an affirmative request for the instruction.

RESEARCH NOTES:

See also generally, NCJIC 305.1.12 [Appeal].

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 VOLUME 14 - CHAPTER 295

PRACTICE NOTE: "The doctrine of invited error does not apply where the instruction objected to on appeal contains elements or additions substantially different from that contained in the instruction submitted by appellant, particularly where such instruction is prejudicial to him and is not the law. [Citations.]" (Gipson v. Davis Realty Co. (CA 1963) 215 CA2d 190, 208 [30 CR 253].)

RESEARCH NOTES:

See also generally, NCJIC 305.1.12 [Appeal].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
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 VOLUME 14 - CHAPTER 295

PRACTICE NOTE: "Error is invited only if defense counsel affirmatively causes the error..." (People v. Tapia (CA 1994) 25 CA4th 984, 1031 [30 CR2d 851]; see also People v. Barton (CA 1995) 12 C4th 186, 198 [47 CR2d 569] [invited error applies only where "the trial court accedes to the defendant's wishes..."]; People v. Wickersham (CA 1982) 32 C3d 307, 330 [185 CR 436] [invited error applies where "defense counsel intentionally caused the court to err"].)

RESEARCH NOTES:

See also generally, NCJIC 305.1.12 [Appeal].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 14 - CHAPTER 295

PRACTICE NOTE: Where the defendant affirmatively requests an instruction, any error as to that instruction may be considered waived. (See People v. Medina (CA 1995) 11 C4th 694, 763 [47 CR2d 165]; see also People v. Wader (CA 1993) 5 C4th 610, 658 [20 CR2d 788].)

    This rule is equally applicable when the defense counsel joins in the DA's request for an instruction. For example, in U.S. v. Cain (9th Cir. 1997) 130 F3d 381, 383 held that defense counsel waived a jury instruction issue by signing a joint instruction request with the prosecutor which included the erroneous instruction. By signing the joint request, counsel represented to the court that he had read the instructions, studied them and that to the best of his knowledge, they represented the current state of the law. Therefore, counsel should be careful not to unnecessarily request or join with the district attorney in requesting any standard pattern instructions which will be given anyway.

RESEARCH NOTES:

See also generally, NCJIC 305.1.12 [Appeal].