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VOLUME 18 - CHAPTER 309
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Macro 309.8      Lesser Offenses

    Macro 8.1   Lesser Included Offense: Requested As Defense Theory
    Macro 8.2   Lesser Included: Failure To Instruct Sua Sponte
    Macro 8.3   Lesser Included – Capital Case
    Macro 8.4   Right To Jury Consideration Of Lesser Included Offense

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
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VOLUME 18 - CHAPTER 309

    This instruction is required by the federal constitutional rights to a fair trial by jury, due process and compulsory process require that the jury be fully and correctly instructed on a lesser included offense as a defense theory if requested by the defendant. (See Conde v. Henry (9th Cir. 1999) 198 F3d 734, 739-40; see also Keeble v. U.S. (1973) 412 US 205, 213 [93 SCt 1993; 36 LEd2d 844]; U.S. v. Oreto (1st Cir. 1994) 37 F3d 739, 748; cf. Mathews v. U.S. (1988) 485 US 58, 63 [108 SCt 883; 99 LEd2d 54].)

    To the extent that the proposed instruction is required by state law, arbitrary denial of that law may violate the Due Process Clause of the federal constitution. [Click here for authority on this: FORECITE National™ Constitutional Macro 6.3 [Arbitrary Denial Of State Created Right]; see also FORECITE National™ Constitutional Macro 6.4 [Cumulative Effect Of State Errors As Violation Of Federal Due Process].]

    To the extent that this instruction promotes reliability in the jury's disposition of the case, it is predicated upon the Due Process Clause (5th and 14th Amendments) of the federal constitution. [Click here for FORECITE National™ Constitutional Macro 6.7 [Reliability Of Conviction And Sentence Guaranteed By Due Process].]

ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases other federal constitutional claims may apply, in addition to the claims discussed above. (See FORECITE National™ 309.13 [Constitutional Macros: Death Penalty].)

CAVEAT: This federalization "macro" is intended to aid counsel in preserving federal constitutional issues when making jury instruction requests. Preservation of such issues at trial can be a prerequisite to subsequent appellate review and federal habeas corpus relief. (See FORECITE National™ 299.2.2 [Necessity Of Federalizing In Trial Court].)

    However, the issues, language and authorities included in these mantras should not be considered as a substitute for individual consideration of each constitutional claim on a case-by-case basis. Counsel should independently consider whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.

    309.8.2    Lesser Included: Failure To Instruct Sua Sponte

    This instruction is required by the federal constitutional rights to a fair trial by jury, due process and compulsory process which are implicated by the failure of the court to instruct sua sponte on lesser included offenses. (See Vujosevic v. Rafferty (3d Cir. 1988) 844 F2d 1023, 1027-28; see also Ferrazza v. Mintzes (6th Cir. 1984) 735 F2d 967, 968; Turner v. Marshall (9th Cir. 1995) 63 F3d 807, 818-19 [discussing split in circuits on this issue]; but see James v. Reese (9th Cir. 1976) 546 F2d 325, 327; Woratzeck v. Ricketts (9th Cir. 1987) 820 F2d 1450, 1457.)

    To the extent that the proposed instruction is required by state law, arbitrary denial of that law may violate the Due Process Clause of the federal constitution. [Click here for authority on this: FORECITE National™ Constitutional Macro 6.3 [Arbitrary Denial Of State Created Right]; see also FORECITE National™ Constitutional Macro 6.4 [Cumulative Effect Of State Errors As Violation Of Federal Due Process].]

    To the extent that this instruction promotes reliability in the jury's disposition of the case, it is predicated upon the Due Process Clause (5th and 14th Amendments) of the federal constitution. [Click here for FORECITE National™ Constitutional Macro 6.7 [Reliability Of Conviction And Sentence Guaranteed By Due Process].]

ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases other federal constitutional claims may apply, in addition to the claims discussed above. (See FORECITE National™ 309.13 [Constitutional Macros: Death Penalty].)

CAVEAT: This federalization "macro" is intended to aid counsel in preserving federal constitutional issues when making jury instruction requests. Preservation of such issues at trial can be a prerequisite to subsequent appellate review and federal habeas corpus relief. (See FORECITE National™ 299.2.2 [Necessity Of Federalizing In Trial Court].)

    However, the issues, language and authorities included in these mantras should not be considered as a substitute for individual consideration of each constitutional claim on a case-by-case basis. Counsel should independently consider whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.

    309.8.3    Lesser Included — Capital Case

    This instruction is required by the cruel and unusual punishment clause of the federal constitution (8th Amendment) which requires that the jury be given instruction on lesser included offenses in a capital case. (Beck v. Alabama (1980) 447 US 625 [100 SCt 2382; 65 LEd2d 392].)

    Any procedures, instructions and/or the absence of instructions which preclude or discourage the jury from fully and fairly considering a lesser included offense in a capital case implicates this 8th Amendment right. (Ibid.)

    To the extent that the proposed instruction is required by state law, arbitrary denial of that law may violate the Due Process Clause of the federal constitution. [Click here for authority on this: FORECITE National™ Constitutional Macro 6.3 [Arbitrary Denial Of State Created Right]; see also FORECITE National™ Constitutional Macro 6.4 [Cumulative Effect Of State Errors As Violation Of Federal Due Process].]

    To the extent that this instruction promotes reliability in the jury's disposition of the case, it is predicated upon the Due Process Clause (5th and 14th Amendments) of the federal constitution. [Click here for FORECITE National™ Constitutional Macro 6.7 [Reliability Of Conviction And Sentence Guaranteed By Due Process].]

ADDITIONAL FEDERALIZATION FOR CAPITAL/DEATH PENALTY CASES: In death penalty cases other federal constitutional claims may apply, in addition to the claims discussed above. (See FORECITE National™ 309.13 [Constitutional Macros: Death Penalty].)

CAVEAT: This federalization "macro" is intended to aid counsel in preserving federal constitutional issues when making jury instruction requests. Preservation of such issues at trial can be a prerequisite to subsequent appellate review and federal habeas corpus relief. (See FORECITE National™ 299.2.2 [Necessity Of Federalizing In Trial Court].)

    However, the issues, language and authorities included in these mantras should not be considered as a substitute for individual consideration of each constitutional claim on a case-by-case basis. Counsel should independently consider whether additional constitutional claims and/or authority may apply under the circumstances of the specific case.

    309.8.4    Right To Jury Consideration Of Lesser Included Offense

    See FORECITE National™ 275.3.3 [Requirement That Jury Consider Lesser Offenses].