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Jury Instruction Corner
By Thomas Lundy
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
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