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But why can't you instruct on the lesser?

By Randall Hodgkinson

I saw this article in the latest issue of NACDL's Champion magazine entitled "Defense Theory Instruction on Non-Included Lesser Offenses." It sort of struck a nerve because several of us have wondered about pursuing something along this line for non-included offenses in Kansas.

The typical examples are aggravated indecent liberties as a lesser non-included offense of rape (where only issue in dispute is penetration) and aggravated battery as a lesser non-included of attempted murder (where only issue is intent to kill). Although neither of these are included offenses (and therefore not charged), and Kansas law hasn't supported giving such instructions, there is support for changing or distinguishing that law.

In particular, an instruction that directs acquittal if jury finds defendant guilty of a non-included lesser offense would be consistent with current Kansas law. I don't see the down side of such a request. Of course, many of you trial practitioners might like all or nothing, but it seems on our end that a middle-ground for the jury would be helpful and cut sentences by years. Any thoughts?

Full post as published by Kansas Defenders on November 09, 2007 (boomark / email).