Themis, do you know if KC can ask to have the LIO's not included in the jury instructions? I know that there are circumstances like the statute of limitations on the lesser offenses has run out so they cannot be offered to the jury without permission from the defendant. I also saw that in rhornsby's latest case the jury was not allowed to consider some of the LIO's of the main charge on a capital case. So, I am wondering how much room there is for argument on either side as to what LIO's will be included in the jury instructions on a capital case. IOW, the LIO's do not seem to be necessarily required, but most often probably are .Any ideas on that?
I guess what I am asking is whether or not arguments are entertained by both sides as to what LIO's will be included on the jury instructions or is there a specific requirement that is non-negotiable? I think there are permissive LIO's? and necessarily lesser LIO's?
ETA: Just to clarify, I am not suggesting that any statute of limitations has been reached in this case at all, i was only using it as an example that LIO's are not always included and asking under what other circumstances are other LIO's not included by the judge in the final jury instructions.
KC can make any motions she wants. However, the issue of whether or not to include an LIO is not up to the defendant. It is also not a negotiation item.
At the end of the guilt phase of the trial; after all the witnesses have testified, the arguments have been made and both sides have rested, there is a hearing where the court goes over any outstanding issues and takes up the subject of jury instructions. At this time, each side can put forth their positions regarding including or excluding any particular instruction on any lesser included offense (LIO). Whether or not they are included is an issue of whether the elements of the lesser included offense are present in the case and whether or not they are included in the greater offense that was charged. If there are new or different elements, it would be a new charge and would not be included.
An element is like an ingredient of a charge. If you were going to bake a vanilla-chocolate cake, you would need flour, sugar, soda, salt, eggs, vanilla and chocolate. If you had flour, sugar, soda, salt, eggs, vanilla and bananas, you could make a vanilla-banana cake, but it would not be a LIO of vanilla-chocolate cake. If you had just flour, sugar, soda, salt, eggs and vanilla, you could make a plain, white vanilla cake. The plain, white vanilla cake would be a LIO of the vanilla-chocolate cake because there were not any new or different ingredients.
So, when determining if something is an LIO of a greater criminal charge, we just stack up the elements of the greater charge. If some are missing, but the remaining elements make another criminal charge, then the other criminal charge is a LIO of the greater criminal charge and instructions can be given.
You are correct on the statutes of limitations or "limitation on actions" bar to prosection. For example, if an LIO is a misdemeanor, in some states, misdemeanors must commence prosecution within 1 year. That would be starting from the date the crime is committed until the arrest or indictment. In KC's case she was indicted on October 22, 2008 for a crime committed in June 2008, so the in all likelihood, there are no lesser included offenses upon which the statutes of limitations have run. If, however she had not been arrested or indicted until today, the statute of limitations would have run on most misdemeanors and those could not be prosecuted because of the bar on limitations on actions. Those instructions on time barred LIOs would not be given unless the defense waived that defense and agreed. (Why? Better to be convicted of a misdemeanor than a major felony perhaps?)
So, there really isn't any "negotiating." If the prosecution wants an LIO and the evidence meets the probable cause standard that all the elements are present in the case going to the jury, then the instruction will be given. It is up to the jury to determine whether or not the elements are met at the beyond a reasonable doubt standard. The PC standard is all that is needed for the prosecution to move forward.
There may be an infinite number of reasons why an LIO may or may not be considered. You identified one of them; the prosecution of that LIO might be time barred because the prosecution was beyond the LIO time limit when prosecution on the main charge commenced. There may be other reasons. I would have to be reminded to comment.
Yes, there are "permissive" LIOs. Apparently, in Florida, the courts have described permissive LIOs as dependent on the accusatory pleading. In other words, what would be fairly encompassed in the accusatory pleading on which the accused stood trial. If it isn't reasonably there or is something very different, then due process requirements of putting the defendant on notice of what is charged might be violated. There may be argument from both sides here, but not really negotiations. The court will decide these issues.
