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 VOLUME 12 - CHAPTER 265
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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

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 VOLUME 12 - CHAPTER 265

RATIONALE: The availability of a lesser offense as a middle ground between complete acquittal and conviction of the greater offense may result in juror compromise. Therefore, 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 some jurisdictions, special instruction may be appropriate to attempt to limit the possibility of jury compromise.

POINTS AND AUTHORITIES: Compromise verdicts in general are at odds with the fundamental constitutional rights to due process and fair trial by jury under the 5th, 6th and 14th Amendments. (See generally State v. Sawyer (CT 1993) 630 A2d 1064, 1074; State v. Harris (NJ 1995) 662 A2d 333, 347; People v. Boettcher (NY 1987) 505 NE2d 594, 597.) "It goes without saying that when a jury renders [a compromise verdict], it exercises a power which it does not possess. [Citation.]" (U.S. v. Marques (9th Cir. 1979) 600 F2d 742,746.) For example, in the civil context an improper compromise between the issues of liability and damages requires a new trial as to all the issues. (See e.g., Mekdeci v. Merrell National Laboratories (11th Cir. 1983) 711 F2d 1510, 1513; see also Massachusetts Bonding v. Transamerican Freight (MI 1938) 281 NW 584; 591-92; Malcomson v. Pool (CA 1969) 276 CA2d 378, 380 [81 CR 58]; Bardessono v. Michels (CA 1970) 3 C3d 780, 793-94 [91 CR 760] [juror affidavits admissible to show quotient verdict].)

    Nevertheless, jurors do reach compromise verdicts. (See FORECITE National™ 296.2.6.5 [Over Charging/Juror Compromise: Prejudicial Effect Of Over-Charging/Over-Instruction When Defendant Convicted Of Lesser Offense].)

    Hence, when the defense desires to limit the possibility of compromise it may be appropriate to request a specific cautionary instruction.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 7.5; 12.2].

USE NOTE: This sort of instruction may be particularly appropriate where stronger jurors may attempt to coerce weaker jurors to deliver a unanimous verdict. Furthermore, the sequential reasoning process of moving from more serious principal offenses to lesser included offenses may tacitly conduce to a lesser standard of proof. (See FORECITE National™ 278.5 [Juror On Juror Coercion].)

See generally, FORECITE National™ 305.12.2 [Lesser Included Offenses].

See generally, FORECITE National™ 265.1.4 [Lesser Included Offenses: Federal Circuit Model Instructions And Notes].

    You may find the defendant guilty of an included offense upon which I have instructed you. However, if the prosecution has failed to prove beyond a reasonable doubt that the defendant is guilty of any offense, it is your duty to vote not guilty as to both the charged and included offense. The included offense is not designed to relieve you from the performance of your duty. It is included to provide an available verdict if the evidence fails to prove the charged offense but does prove the included offense.

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

    If you are not satisfied from the evidence beyond a reasonable doubt and to a moral certainty that the Defendant is guilty as charged in the indictment of either of the two included offenses, it is equally your duty to acquit him.

[See Smith v. State (AL 1979) 373 So2d 1272, 1274.]

    It is not your duty as jurors to reach a compromise verdict.  Rather, you must seek to render a just verdict by applying the facts to the law upon which you are instructed.

[See State v. Sawyer (CT 1993) 630 A2d 1064, 1074; State v. Harris (NJ 1995) 662 A2d 333, 347; People v. Boettcher (NY 1987) 505 NE2d 594, 598.]

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 VOLUME 12 - CHAPTER 265

RATIONALE: Without an explanatory instruction the jurors may not understand that the presumption of innocence requires a verdict as to the lesser offense if they have a reasonable doubt whether the defendant is guilty of the greater or lesser offense.

POINTS & AUTHORITIES: In any case involving an offense divided into degrees the jury should be advised to convict only of the lesser degree if it has a reasonable doubt as to which degree applies. Where the offense charged has more than one degree, the jurors must be instructed to acquit of any degree of which they have a reasonable doubt and to convict of any degree of which they have no reasonable doubt. (Wharton’s Criminal Evidence (West, 15th ed. 1997) § 2:3, p. 30; see also LeVasseur v. Commonwealth (VA 1983) 304 SE2d 644, 657; MINNESOTA JURY INSTRUCTION GUIDES - CRIMINAL, CRIMJIG 3.20 [Lesser Crimes] (West, 3d ed. 1990); Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS VIII(B), inst. 4.1 [Resolution of Doubt in Favor of Defendant-Lesser-Included Offense] p. 376 (South Carolina CLE, 1994).)

    The same principle should apply to lesser included offenses. (See People v. Dewberry (CA 1959) 51 C2d 548, 555 [334 P2d 852]; People v. Crone (CA 1997) 54 CA4th 71,79 [62 CR2d 607] [failure to instruct on effect of reasonable doubt in choosing between greater and lesser offense was error]; see also State v. Jones (NM 1947) 179 P2d 1001; State v. Trujillo (KS 1979) 590 P2d 1027, 1031; but see Butts v. Commonwealth (KY 1997) 953 SW2d 943, 946 [instruction on reasonable doubt as to the degree of the offense is not required; but if one is given it must be correct]; State v. Powell (VT 1992) 608 A2d 45, 48 [same].) Therefore, the jury should be instructed that, in case of a reasonable doubt between the degrees or offenses, it may convict of the lesser only. (Wharton’s Criminal Procedure (West, 13th ed. 1989) § 473, p. 69; see also PATTERN INSTRUCTIONS FOR KANSAS - CRIMINAL, PIK - Criminal 3d 68.09, comment [Lesser Included Offense] p. 684 (Kansas Judicial Council, 3rd ed. 1999.)  A general instruction that the defendant’s guilt must be established beyond a reasonable doubt is not sufficient. (Ibid.)  

RESEARCH NOTES:

Annotation, Duty To Charge As To Reasonable Doubt As Between Degrees Of Crime Or Included Offenses, 20 ALR 1258.

See generally, FORECITE National™ 305.12.2 [Lesser Included Offenses].

See generally, FORECITE National™ 265.1.4 [Lesser Included Offenses: Federal Circuit Model Instructions And Notes].

    If you are satisfied beyond a reasonable doubt that the defendant committed a criminal offense, but you have a reasonable doubt whether the offense committed was __________[insert greater offense] or __________ [insert lesser offense], you must give the defendant the benefit of the doubt and find [him] [her] guilty of __________ [insert lesser offense].

[Source: FORECITE National™.]

    If you determine that the defendant is guilty of either second-degree murder or manslaughter but you have a reasonable doubt as to which it was, you must find the defendant guilty of manslaughter.

    If you determine that the defendant is guilty of either first-degree murder or second-degree murder and you have a reasonable doubt as to which it was, you must find the defendant guilty of second-degree murder.

[See People v. Dewberry (CA 1959) 51 C2d 548; see also REVISED ARIZONA JURY INSTRUCTIONS (CRIMINAL), RAJI 11.04 Second Degree Murder] (CLE State Bar of Arizona, 1996).]

* But see FORECITE National™ 279.7 [Improper To Instruct Jury As To Relative Seriousness Of Greater And Lesser Offense].

[See People v. Dewberry (CA 1959) 51 C2d 548; see also Cooper, KENTUCKY INSTRUCTIONS TO JURIES 2.03B [Presumption Of Innocence; Lesser Degrees Of Offense] (Anderson, 4th ed. 1999).]

CAVEAT: There is no requirement to instruct on reasonable doubt as to the degree of the offense in Kentucky, but if such an instruction is given, this sample is to be used. (Cooper, at p. 72.)

    If, after considering all the evidence, you have a reasonable doubt as to the [degree] [grade] of the offense you may not vote to convict the defendant of _________________ (name of greater offense).  Rather you should vote to convict [him] [her] of __________________ (name of lesser included offense) provided the prosecution has proved every element of that offense beyond a reasonable doubt.

[See IOWA CRIMINAL JURY INSTRUCTIONS 100.11 [Reasonable Doubt- Re Included Offenses] (Iowa State Bar Association, 1997); see also OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 10-27 § 916 [Reasonable Doubt] (Oklahoma Center for Criminal Justice, 2nd ed. 1996); VIRGINIA MODEL JURY INSTRUCTIONS - CRIMINAL 33.720 [Homicide-Doubt As To Grade Of Offense]; 37.500 [Malicious Wounding-Doubt As To Grade Of Offense] (Lexis, 2000).]

    The court instructs the jury that if you have a reasonable doubt as to the grade of the offense of which the defendant may be guilty, you shall resolve that doubt in his favor and find him guilty of the lower grade, and if you have a reasonable doubt as to whether he is guilty of any offense you must resolve that doubt in his favor and find him not guilty.

[Source: State v. Wayne (WV 1978) 245 SE2d 838, 842.]

    When the prosecution has proved beyond a reasonable doubt that a person is guilty of a crime and there is a reasonable doubt as to the degree of the crime, the defendant may only be convicted of the lesser degree.

[See State v. Stationak (WA 1968) 440 P2d 457, 461; see also WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 4.11 [Lesser Included Crime Or Lesser Degree] ¶ 3 (West, 2nd ed. 1994).]

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 VOLUME 12 - CHAPTER 265

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

See generally, FORECITE National™ 265.1.4 [Lesser Included Offenses: Federal Circuit Model Instructions And Notes].