NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions

VOLUME 12: LESSER OFFENSES (Chapters 265-269)

TABLE OF CONTENTS

Chapter 265: Lesser Included Offenses: General Principles

265.1 Determining Lesser Included Offenses
    265.1.1 Lesser Included Offense: Elements Test
    265.1.2 Lesser Included Offense: Model Penal Code Test
    265.1.3 Lesser Included Offense: Charging Documents Test
    265.1.4 Lesser Included Offense: Federal Circuit Model Instructions And Notes

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

265.3 Impact Of Counsel’s Request, Objection Or Silence On Duty To Give Lesser Offense Instruction
    265.3.1 Whether Defendant Or Counsel Should Make The Ultimate Decision To Request A Lesser Included Offense
                265.3.1.1 Time-Barred Lesser: Request For Instruction Waives Statute Of Limitation
    265.3.2 Whether Personal Waiver By The Defendant Should Be Required Before Omitting Lesser Included Offense Instruction
    265.3.3 Whether Lesser Included Offense Should Be Given Sua Sponte Or Only On Request
    265.3.4 Whether Court Has Duty To Instruct On Lesser Included Offense Over Defense Objection
    265.3.5 Whether Court Has Duty To Instruct On Lesser Included Offense Over Objection Of Both Prosecution And Defense
    265.3.6 Right To Lesser Included Offense Even If Inconsistent With Defendant’s Testimony
    265.3.7 Lesser Included Offense: Objection As Invited Error
    265.3.8 Defendant Must Object To Instruction On Nonincluded Lesser Offense
    265.3.9 Appellate Counsel Has Duty To Raise Failure Of Trial Court To Sua Sponte Instruct On Lesser Included Offense

265.4 Lesser Included Offense: Clarifying Instructions
    265.4.1 Lesser Included Offense: Not Intended to Relieve Jury of Duty to Acquit If Prosecution Has Not Proven Guilt
    265.4.2 Doubt As To Greater Offense Should Be Resolved In Favor Of Lesser
    265.4.3 Choice Between Firearm Use And Lesser Included Arming Allegation

265.5 Lesser Included Offense: Miscellaneous Issues
    265.5.1 Rationale For Instruction On Lesser Included Offenses: Avoiding An All-Or-Nothing Choice For The Jury
    265.5.2 Lesser Included Offense: Nonjury Charge As Lesser Included Offense
    265.5.3 Time-Barred Lesser Offenses
    265.5.4 Challenge To Assumption That An Attempt Is Always A Lesser Included Of The Charged Offense
    265.5.5 Improper For Prosecution To Argue That Defense Request For Lesser Offense Infers An Admission Of Guilt
    265.5.6 Reduction Of Charge To Lesser Offense For Failure To Instruct On Elements Of The Greater Offense
    265.5.7 Instruction On Lesser Included In Response To Jury Deadlock

265.6 Lesser Included Offenses And The Federal Constitution
    265.6.1 Lesser Offenses And The Federal Constitution Cross-References
    265.6.2 Lesser Included Offense As Defense Theory
    265.6.3 Due Process Underpinnings Of Instruction On Lesser Included Offenses
    265.6.4 Instruction On Lesser Offenses As To One Codefendant And Not The Other May Improperly Direct The Jury

265.7 Lesser Included Offenses: Deliberation And Verdict
    265.7.1 Lesser Included Offenses: Deliberation And Verdict -- General Principles

265.8 Lesser Included Offenses: Double Jeopardy Issues
    265.8.1 Lesser Included Offenses: Double Jeopardy Issues -- General Principles
    265.8.2 No Conviction Of Both Greater And Lesser Included Offenses
    265.8.3 Conviction Of Lesser Offense -- Impact On Greater Offense
    265.8.4 Double Jeopardy: Following Successful Appeal Based On Trial Error
    265.8.5 Double Jeopardy Bars Retrial On Prior Theory Which Was Charged But Not Litigated
    265.8.6 Double Jeopardy: No Subsequent Trial On Lesser Included Offense If Jeopardy Has Attached On Greater Offense

265.9 Lesser Included Offenses: Sentencing
    265.9.1 Applicability Of Lesser Included Offense Principles To Sentencing Enhancements

265.10 Lesser Included Offenses: Appeal
    265.10.1 Lesser Offenses: Analysis Of Prejudice On Appeal
    265.10.2 Lesser Included Offenses: Standard Of Prejudice On Appeal

Chapter 266: Lesser Included Offenses: Specific Crimes [Reserved]

Chapter 267: Nonincluded Lesser Offenses (Lesser Related Offenses / Cognate Lesser Offenses)

    267.1 Nonincluded Lesser Offenses: General Rules
    267.2 Instruction On Uncharged Nonincluded Lesser Offense Over Objection Violates Due Process
    267.3 Right To Present A Defense As Basis For Instruction On Nonincluded Lesser Offense
    267.4 The Defendant Should Be Permitted To Move For Discretionary Amendment Of The Charging Document To Add Uncharged Offenses
    267.5 Federal Constitutional Principles Require The Court To Consider A Discretionary Motion To Amend By The Defendant
    267.6 The Jury Should At Least Be Informed About The Uncharged Related Offenses So It Can Meaningfully Represent The Conscience Of The Community
    267.7 Explanation That Jury Has No Option Other Than Conviction Of Charged Offense Or Acquittal Due To Prosecution's Charging Decision

Chapter 268-269: [Reserved]