The Champion

September/October 2007 , Page 60 

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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

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