Lesser Related Offenses: Conflict Between Birks and the Right to Present a Defense
July 27th, 2016

In People v. Salazar (2016) 63 C4th 214, 251 the defendant unsuccessfully sought instruction on accessory after the fact as a lesser related offense. The Court, in reliance on People v. Birks (98) 19 C4th 108 [Birks], held that such an instruction is permissible only on stipulation of the parties. (See also People v. Rangel (2016) 62 C4th 1192, 1230 [same]; People v. Yeoman (2003) 31 C4th 93,129 [same].)

However, both Birks and Hopkins v. Reeves (1998) 524 US 88, upon which it relied, considered uncharged lesser related offenses in the context of traditional lesser offense analysis under standard cases such as Beck v. Alabama (80) 447 US 625 and People v. Sedeno (74) 10 C3d 703.  Thus, the issue was framed in terms of what alternatives may be presented to the jury and whether the process is sufficiently reliable.  This analysis does not expressly consider and address the fact that a lesser offense can be a “defense” (see Delaney v. Superior Court  (90) 50 C3d 785, 809) and, hence, restriction of instruction on a lesser offense may be a restriction of the defendant’s right to present a defense.

While Reeves (in which the lesser offense was requested in reliance upon Beck) may be read to have implicitly held that the state may so restrict the defense, it did not confront the issue head-on.  Reeves did not discuss whether there was a factual basis for such an argument (i.e., strong evidentiary support for the lesser offense and explicit defense reliance upon such evidence as a primary defense theory). Nor did Reeves confront the well-developed body of federal law establishing a federal constitutional basis under the 6th and 14th amendments to instruct the jury on the theory of the defense.

Similarly, Carter v. United States (2000) 530 US 255 reaffirmed the general rule that under FRCP 31(c) the defendant is not entitled to a jury instruction on lesser offense when elements of offense are not a subset of charged offense.  However, in Carter the Court limited its discussion to Rule 31.  It did not address the question of whether the defendant’s constitutional rights require instruction on a non-included lesser offense as a defense theory.

Hence, the cases which have limited lesser offenses to statutorily included offenses should not preclude an argument that instruction on a lesser related offense may be required by the defendant’s right to instruction on the defense theory of the case which is founded on the federal constitutional rights to due process, compulsory process and fair trial by jury.  (5th, 6th and 14th Amendments; Mathews v. United States (1988) 485 US 58, 63 citing Stevenson v. United States (1896) 162 US 313[refusal of voluntary manslaughter instruction in murder case where self-defense was primary defense constituted reversible error]; see also Keeble v. U.S. (1973) 412 US 205, 213; People v. Wright (1988) 45 C3d 1126, 1141-43; U.S. v. Sotelo-Murillo (9th Cir. 1989) 887 F2d 176, 178-79; U.S. v. Escobar de Bright (9th Cir. 1984) 742 F2d 1196, 1201.)

For example, in Sanborn v. Commonwealth (1988, Kentucky) 754 SW2d 534, the defendant in a rape case had a right to an instruction on the lesser related offense of abuse of a corpse based on the defense theory that the sex acts occurred after the victim was dead.  That was so because reliance on a lesser charge is a defense which the defendant has the right to present to the jury.  (See also U.S. v. Brown (8th Cir. 1994) 33 F3d 1002, 1004 [defendant’s testimony that he only assisted after the crime necessitated instruction on defense theory of accessory after the fact which is not a lesser included].)

Moreover, the U.S. Supreme Court has consistently held that domestic rules of evidence or procedure may not be invoked to preclude a criminal defendant from establishing that he has been denied a fair trial. (See Rock v. Arkansas (87) 483 US 44; Green v. Georgia (79) 442 US 95; Davis v. Alaska (74) 415 US 308; Chambers v. Mississippi (73) 410 US 284;Washington v. Texas (67) 388 US 14.) The Supreme Court has applied a balancing test in resolving conflicts between such domestic rules and the federal constitutional provisions, weighing the interest of the defendant against the state interest in the rules of evidence.  (Chambers, supra, 410 US at 295; Green v. Georgia, supra, 442 US at 97; Washington v. Texas, supra, 388 US at 19-23.)

Because Birks is a domestic rule it should not control in a situation where the defendant will be denied the fundamental right to defend against the charge. Thus, in a case where the lesser related offense is a primary focus of the defense theory of the case, there may be a basis for challenging the state rule enunciated in Birks and Reeves as a violation of the defendant’s federal constitutional rights.

See also, FORECITE LRO II Theories For Instruction On Lesser Related Offenses Notwithstanding Birks

Tags: ,