THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
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VOLUME 16 - CHAPTER 300
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300.7 Failure To Instruct On Lesser Included Offenses In Noncapital Case

    300.7.1 Failure To Sua Sponte Instruct On Lesser Included Offenses: Whether Due Process Is Implicated
    300.7.2 Denial Of Requested Lesser Included Offense Violates Due Process

    THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
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VOLUME 16 - CHAPTER 300

PRACTICE NOTE: In capital cases, the 8th Amendment and the due process clause of the 5th and 14th Amendments require instruction on lesser included offenses. (See Beck v. Alabama (1980) 447 US 625, 637-38 [100 SCt 2363; 65 LEd2d 392]; Hopper v. Evans (1982) 456 US 605, 611-12 [102 SCt 2049; 72 LEd2d 367.)

    "Although the Court confined its holding in Beck to capital cases, the rationale would seem to apply to noncapital cases since the Court in Beck was primarily concerned with the impact of the Alabama procedure on the reliability of the fact-finding process, rather than on the imposition of the death penalty and the sentencing process. [Citation.]" (BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) § 131.401[3][b]; see NCJIC 296.2.6.1 [Failure To Instruct Sua Sponte On Lesser Included Offense As Violation Of Federal Due Process].)

    The federal circuits are split on the question of whether Beck applies to non-capital cases. The 3rd and 6th Circuits extended the Beck rule generally to non-capital cases. (See, e.g., Vujosevic v. Rafferty (3d Cir. 1988) 844 F2d 1023, 1027; Ferrazza v. Mintzes (6th Cir. 1984) 735 F2d 967, 968.) The 5th, 9th,10th and 11th Circuits found no constitutional right in non-capital cases. (See, e.g., Valles v. Lynaugh (5th Cir. 1988) 835 F2d 126, 127; Solis v. Garcia (9th Cir. 2000) 219 F3d 922, 929 ["the failure of a state court to instruct on a lesser offense [in a non-capital case] fails to present a federal constitutional question and will not be considered in a federal habeas corpus proceeding"; however, defendant's right to adequate jury instructions on his or her theory of the case might, in some cases, constitute an exception to the general rule]; Trujillo v. Sullivan (10th Cir. 1987) 815 F2d 597, 602; Perry v. Smith (11th Cir. 1987) 810 F2d 1078, 1080.) Other circuits will entertain a habeas petition on that ground only to prevent fundamental injustice. (See, e.g., Tata v. Carver (1st Cir. 1990) 917 F2d 670, 672; Nichols v. Gagnon (7th Cir. 1983) 710 F2d 1267, 1272.)

    See also NCJIC 300.29 [Reliability Of Trial And Verdict].

RESEARCH NOTES: For two analyses on whether Beck should apply in non-capital cases, compare Michael G. Pattillo, Note, When "Lesser" is More: The Case for Reviving the Constitutional Right To A Lesser Included Offense, 77 Tex. L. Rev. 429 (1998) with James A. Shellenberger and James A. Strazzella, The Lesser Included Offense Doctrine And The Constitution: The Development of Due Process and Double Jeopardy Remedies , 79 Marq. L. Rev. 1 (1995).

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

 VOLUME 16 - CHAPTER 300

PRACTICE NOTE: When a lesser included offense instruction is requested, it becomes a defense theory to which federal constitutional rights to due process, fair trial by jury and to present a defense apply. (See Mathews v. United States (1988) 485 US 58, 63 [108 SCt 883; 99 LEd2d 54] [citing Stevenson v. United States (1896) 162 US 313, 321 [16 SCt 839; 40 LEd 980] [refusal of voluntary manslaughter instruction in murder case where self defense was primary defense constituted reversible error]; see also Keeble v. U.S. (1973) 412 US 205, 213 [93 SCt 1993; 36 LEd2d 844]; U.S. v. Sotelo-Murillo (9th Cir. 1989) 887 F2d 176, 178-79; U.S. v. Lesina (9th Cir. 1987) 833 F2d 156, 159-60; U.S. v. Escobar de Bright (9th Cir. 1984) 742 F2d 1196, 1201; People v. Saille (CA 1991) 54 C3d 1103, 1120 [2 CR2d 364]; People v. Wharton (CA 1991) 53 C3d 522, 570-72 [280 CR 631]; People v. Wright (CA 1988) 45 C3d 1126, 1141-43 [248 CR 600]; 6th and 14th Amendments; see also PG VII(C)(14).) Hence, this heightens the importance of trial counsel being aware of and requesting instruction on lesser included offenses.

    Hence, failure to give a requested instruction on a lesser offense implicates the federal constitution if the refusal prevents the defendant from presenting his or her theory of the case. (See Bashor v. Risley (9th Cir. 1984) 730 F2d 1228, 1240; James v. Reese (9th Cir. 1976) 546 F2d 325, 327.)

    See also NCJIC 11.2.3 [Right To Instruct Grand Jury On Defense Theories].

    See also NCJIC 250.1.1 [Litigant’s Right To Instruction On Theory Of Case].

RESEARCH NOTES:

See Mascolo, Procedural Due Process and the Lesser Included Offense Doctrine (1986) 50 Albany L. Rev. 263.