Preview of Member Only Content
For full access: 
or Become a Member 
Jury Instruction Corner
By Thomas Lundy
Read more
Jury Instruction columns.
Defense Theory Instruction On Non-Included Lesser Offenses
A common defense strategy is to provide jurors with a lesser offense
option so that they don’t have an unwarranted “all or nothing” choice.1
However, many jurisdictions limit instruction on lesser offenses to
those which are either charged or meet the strict requirements for
lesser included offenses.2 Nevertheless, there are still
strategies available for obtaining some form of instruction on uncharged
non-included lesser offenses. Several of these strategies are the
subject of this article.
A. Right to Present a Defense As Basis for Jury Finding Defendant Guilty of a Non-Included Lesser Offense
The cases which limit lesser offense instructions to included offenses typically rely on statutes or rules.3
These cases generally do not consider the fact that, in some
circumstances, a lesser offense can be a defense or defense theory.4
Moreover, there is a well-developed body of federal law establishing a
federal
Want to read more?
The Champion archive is reserved for NACDL members.
NACDL members, please login to read the rest of this article.
Not a member? Join now.
Or click here to see an overview of NACDL Member benefits.
See what NACDL members say about us.
To read the current issue of The Champion in its entirety, click here.
- Media inquiries: Contact NACDL's Director of Public Affairs & Communications Ivan J. Dominguez at 202-465-7662 or idominguez@nacdl.org
- Academic Requests: Full articles of The Champion Magazine are available for academic and research purposes in the WestLaw and LexisNexis databases.