The Lesser Offense Instruction Act: A Statutory Proposal
- The proposed amendment to Title 22, section 916
An Act relating to crimes and punishments; creating “The Lesser Offense Instruction Act;” amending 22 O.S.2011, Section 916, which relates to lesser offenses; providing notice to accused of potential conviction of lesser offense or attempt; defining lesser offense; creating right to jury instructions on lesser offense on request; granting trial court discretion to instruct the jury on lesser offense over objection; providing that failure to instruct on lesser offenses without a request shall not be grounds for relief on appeal; and providing effective date.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. This act may be referred to as “The Lesser Offense Instruction Act.”
SECTION 2. AMENDATORY 22 O.S.2011, Section 916, is amended to read as follows:
- A defendant in a criminal action is hereby placed on notice, and shall be hereafter charged with knowledge, that he or she is subject to conviction by the jury, or the trial court in a non-jury trial, or upon a plea of guilty or nolo contendere, of the charged offense, any lesser offense, or an attempt to commit the charged offense.
- A lesser offense is any offense punishable by a lesser penalty than the charged offense, and either:
- included in the charged offense, so that proof of the elements of the charged offense necessarily establishes all of the elements of the lesser offense; or
- closely or inherently related to the charged offense, though the elements of the greater offense may be committed without committing the lesser offense.
- Upon an oral or written request by a party in a criminal prosecution made prior to submission of the case to the jury, the trial court shall instruct the jury on one or more lesser offenses or an attempt to commit the charged offense. In a bench trial, or upon a tendered plea of guilty or nolo contendere, the trial court shall also consider whether the evidence supports conviction of a lesser offense or an attempt to commit the charged offense.
- For purposes of this act, prima facie evidence shall be defined as evidence which, on its face, establishes every material element necessary to sustain a judgment of conviction for the greater offense. Prima facie evidence shall be sufficient reason to instruct the jury on one or more lesser offenses or an attempt to commit the charged offense; provided, that no instruction to the jury shall be given for a lesser offense for which the evidence is legally insufficient to sustain a conviction.
- Subject to the requirements of subsection 4, the trial court shall also have discretion to give an instruction on a lesser offense or an attempt without a formal request or over either party’s objection. Absent a timely request by a party as authorized by subsection 3 of this section, the failure or refusal of a trial court to instruct the jury on a lesser offense or an attempt shall not be considered grounds for relief on appeal.
- This section shall apply to all criminal trials commenced on or after its effective date, and shall not be considered grounds for relief against a conviction occurring before its effective date.
SECTION 3. This act shall become effective November 1, 2017.
II. A brief commentary
Broader and more sensible use of lesser offenses in Oklahoma trial courts under an amendment to our murky 1910 statute would mean fewer acquittals and hung juries in overcharged and doubtful cases; more convictions supported by sufficient evidence; an end to the current confusion wrought by tendentious appellate case law; and a more evenhanded system of justice for all.
The first subsection of the proposed amendment establishes actual and constructive notice to defendants of their potential liability for conviction of a lesser offense, as more broadly defined in the subsection 2. Defendants are traditionally deemed to know they may be convicted of a charged crime and any necessarily included lesser offense, whether formally charged or not. Giving statutory notice of potential liability for what the Court in Shrum (1999) defined as lesser related offenses removes potential due process limitations.[1]
Subsection 2 comprehensively defines a lesser offense as one having a lesser penalty, and otherwise arising under either the traditional “elements” test promoted by the Court in Willingham,[2] or the “evidence” test later adopted in Shrum.[3] The statute thus joins what have been unhelpfully distinguished as lesser included and lesser related offenses under one comprehensive category of “lesser offense.” Adopting both tests might quell almost two decades of judicial skirmishing about which of several favored legal tests the trial courts should apply.[4]
Subsection 3 creates an important legal right for the prosecution or defense, or both, to request an instruction to the jury, or in a bench trial or (blind) plea, to seek the trial court’s consideration of whether to convict the defendant of some lesser offense or attempt. Subsection 4 establishes the legal test for whether a lesser offense issue should be given to the jury, or considered by the trial court: sufficient, prima facie evidence to support a conviction for the greater charged offense.[5] Consistent with the expanded liability established in subsection 1, this clause requires that a jury be instructed on, or a trial court consider, an alternative lesser offense or attempt in any case where the evidence of the charged offense is sufficient to go to the jury.
Such language will obviously authorize greater use of lesser offenses at the trial court level and reduce reliance on fact-driven, subjective, and indeterminate appellate tests. Subsection 5 also seeks to produce this effect, allowing the trial court to instruct upon, or consider, a lesser offense alternative even where one or both parties neglect to request it or actively oppose it. Some will object to an end of the riverboat gambler’s “all or nothing” strategy at trial, but the statute encourages trial courts to work substantial justice, without embracing an all-out prohibition against the sporting approach in proper cases.[6]
Subsection 5 also requires counsel to diligently pursue the law in the trial court, or forfeit these rights on appeal. When lesser offense instructions are more readily available to the accused, the failure to request them will raise important questions about the professional performance of counsel the defense, and the validity of any resulting conviction for the State. Pragmatic reform of the law on lesser offenses holds some fair potential for improving criminal justice.
Notes
[1] Shrum v. State, 1999 OK CR 41, ¶ 6 (“The principal impediment to administering instructions on related, but not necessarily included, offenses is the defendant's due process right to notice of the charges against which he must defend”).
[2] Willingham v. State, 1997 OK CR 62, ¶ 19 (offense is lesser included under section 916 only where the greater offense cannot be committed without necessarily committing the lesser)(quoting State v. Uriarite, 1991 OK CR 80, ¶ 8, and finding second degree depraved mind murder was not lesser included offense of first degree malice aforethought murder). The Court in Shrum found the “elements” test was “the most inflexible, and results in few offenses having lesser included ones because it requires under all possible circumstances that the commission of the greater crime will also entail commission of the lesser offense.” Id., 1999 OK CR 41, ¶ 7.
[3] 1999 OK CR 41, ¶ ¶ 8-9 (offense is lesser included where, considering not only the elements, but the crimes the trial evidence tends to prove, “the lesser and the greater offense are in the same class of offenses and are closely or inherently related, but do not satisfy the strict statutory elements test”).
[4] Shrum, 1999 OK CR 41, ¶ 7 (noting the Court’s use of all of the different tests or approaches to lesser offenses in the past, citing Christen R. Blair, Lesser Included Offenses in Oklahoma, 38 Okla. L.Rev. 697, 702-03 (1985)); State v. Tubby, 2016 OK CR 17, ¶ (Judge Lumpkin, in dicta, continuing to question the “viability” of Shrum’s evidence test, and promoting adoption of the the test proposed in footnote 6 of Davis v. State, 2011 OK CR 29, ¶ 101 n. 6, 268 P.3d 86, 115 n. 6), a technical, two-step analysis of the elements and the trial evidence supporting a requested instruction.
[5] Shrum held that a lesser included instruction was warranted when there is prima facie evidence of the lesser offense, Davis v. State, 2011 OK CR 29, ¶ 101, 268 P.3d 86, 116, i.e., evidence “which would allow a jury rationally to find the accused guilty of the lesser offense and acquit him of the greater;” a standard readily turned to any purpose intended.
[6] This effectively codifies what was best in McHam v. State, 2005 OK CR 28, ¶ ¶ 18-21, which rejected a defendant’s claim of absolute right to an “all or nothing” strategy at trial, without absolutely prohibiting it, either. As in McHam, under this provision the trial court is simply “not bound by that [all or nothing] strategy, and may instruct sua sponte on any lesser offense supported by the evidence, without any formal request.”
Hyperlinks
Willingham v. State, 1997 OK CR 62
© 2017 Bryan Lester Dupler
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