Wis JI-Criminal SM-6

CONTENTS

Scope.......................................................................................................................... 2

I. When is a crime a lesser included offense of the charged crime? ....................... 2

A. Section 939.66(1): “A crime which does not require proof of a fact in

addition to those which must be proved for the crime charged” .................. 4

B. Section 939.66(2): “A crime which is a less serious type of criminal

homicide than the one charged” ................................................................... 6

C. Section 939.66(3): “A crime which is the same as the crime charged

except that it requires recklessness or negligence while the crime charged

requires a criminal intent”............................................................................. 7

D. Section 939.66(4): “An attempt in violation of § 939.32 to commit the

crime charged” .............................................................................................. 8

E. The crime-specific provisions....................................................................... 8

II. If an offense is “lesser included,” when is it proper to submit an instruction on

that offense? ......................................................................................................... 11

A. The general rule............................................................................................ 11

B. A “reasonable view of the evidence” and inconsistent defenses.................. 13

III. The necessity of a request for a lesser included offense instruction; the trial

judge’s sua sponte authority or obligation to give such an instruction............... 13

A. The general rules........................................................................................... 13

B. No duty to instruct sua sponte versus “plain error” ...................................... 14

C. Sua sponte instructions versus trial strategy................................................. 14

D. Anticipating problems at the instruction conference.................................... 15

IV. Instructing the jury on the transition between the charged crime and a lesser

included crime..................................................................................................... 15

V. Other Issues......................................................................................................... 16

A. Instructing on an offense for which the statute of limitations has run......... 16

B. Attorney argument regarding lesser included offenses................................ 16

Scope

This Special Material attempts to provide a framework for deciding when it is proper

to instruct the jury on a lesser included offense. There are two tests to consider: first,

whether an offense is a lesser included offense of the crime charged; and second, whether

the evidence supports an instruction on the lesser included offense. If both tests are

satisfied, an instruction must be given upon request of either party.

I. When is a crime a lesser included offense of the charged crime?

The authority for convicting a defendant of a lesser included offense and the standard

for determining when an offense is “lesser included” are found in § 939.66 of the

Wisconsin Statutes:

Conviction of included crime permitted. Upon prosecution for a crime, the actor

may be convicted of either the crime charged or an included crime but not both.

An included crime may be any of the following:

(1) A crime which does not require proof of any fact in addition to those which

must be proved for the crime charged.

(2) A crime which is a less serious type of criminal homicide than the one charged.

(2m) A crime which is a less serious or equally serious type of battery than the

one charged.

(2p) A crime which is a less serious or equally serious type of violation under

s. 948.02 than the one charged.

(2r) A crime which is a less serious type of violation under s. 943.23 than the one

charged.

(3) A crime which is the same as the crime charged except that it requires

recklessness or negligence while the crime charged requires a criminal intent.

(4) An attempt in violation of s. 939.32 to commit the crime charged.

(4m) A crime of failure to timely pay child support under s. 948.22(3) when the

crime charged is failure to pay child support for more than 120 days under

s. 948.22(2).

(5) The crime of attempted battery when the crime charged is sexual assault,

sexual assault of a child, robbery, mayhem, or aggravated battery or an attempt

to commit any of them.

(6) A crime specified in s. 940.285(2)(b)4. or 5. when the crime charged is

specified in ss. 940.19(2) to (6), 940.225(1), (2), or (3), or 940.30.

(6c) A crime that is a less serious type of violation under s. 940.285 than the one

charged.

(6e) A crime that is a less serious type of violation under s. 940.295 than the one

charged.

(7) The crime specified in s. 940.11(2) when the crime charged is specified in

s. 940.11(1).

The principle which allows conviction for a lesser included offense upon an

information charging a greater offense is that the defendant has received adequate notice

of the lesser offense since it does not require proof of any fact not required for the greater.1

In order to instruct the jury on a lesser included offense, the offense must qualify under

one of the subsections of § 939.66. A trial court is not permitted to instruct or submit a

verdict on a lesser crime which is not included in the charged crime.2 The subsections of

§ 939.66 are an exhaustive list of the categories of lesser included offenses; if an offense

does not fit within one of these categories, it is not “lesser included” and it may not be

submitted to the jury.

The subsections of § 939.66 break down into two groups. One group states general

principles relating to lesser included offenses that can apply across the range of criminal

statutes. Consisting of subsections (1), (2), (3), and (4), this group has been part of the

statute since it was originally enacted as part of the 1956 Criminal Code revision. The rest

of the subsections constitute the second group which states special rules for specific statutes

or groups of statutes. Only subsection (5) was part of § 939.66 as originally enacted. These

special rules have become necessary for two reasons. First, the general lesser included

offense rules are strictly interpreted to focus solely on the statutorily-defined elements

rather than on the facts of the case. (See the discussion below.) Second, new criminal

statutes tend to be drafted in a way that does not follow the principles of the 1956 Criminal

Code revision. The result is that the general principles do not identify offenses that should

logically be included offenses, making special rules necessary.

The discussion below considers each of the general rules and then the special rules as

a group.

A. Section 939.66(1): “A crime which does not require proof of a fact in addition

to those which must be proved for the crime charged.”

The key to applying this subsection is understanding that it is concerned with the

statutorily required elements of the crimes and not with the particular facts alleged or

proved in the case at hand.3 “When determining whether a crime is a lesser included offense

under sec. 939.66(1), the determinative factor is the statutorily defined elements of the

respective crimes.”4 Language in earlier decisions of the Wisconsin Supreme Court,

especially State v. Melvin,5 implicitly approving consideration of the peculiar facts of the

case in determining lesser included offenses, has not been followed in subsequent cases,6

and the strict “statutory elements” test now appears to be clearly established.

In properly applying § 939.66(1), one must compare the statutory definition of the

charged crime with the statutory definition of the alleged lesser included crime. If the lesser

crime includes any element not included in the definition of the charged crime, the lesser

crime is not an “included” offense.

Thus, in Randolph v. State,7 where the facts involved the shooting of the victim by the

defendant, it was held that injury by conduct regardless of life and reckless use of a weapon

were not included in the crime of attempted murder. Both the lesser offenses require proof

of facts not required for attempted murder. Injury by conduct regardless of life requires

proof of injury; reckless use of a weapon requires proof that a weapon was used. Attempted

murder requires proof of neither injury nor use of a weapon, although both facts were part

of the case against Randolph.

Other illustrations of the “statutory elements” test are found in the following cases:

• State v. Verhasselt8 – injury by negligent use of a weapon is not included within

injury by conduct regardless of life;

• State v. Smith9 – pointing a weapon is not included within armed robbery;

• State v. Driscoll10 – indecent liberties with a child is not included within sexual

intercourse with a child;

• State v. Elbaum11 – resisting an officer is not included within battery to a police

officer.

• State v. Hagenkord12 – injury by conduct regardless of life is not an included offense

when the charge is first degree sexual assault.

• State v. Carrington13 – reckless use of a weapon, in violation of § 941.20(1)(a) is

not a lesser included offense of endangering safety while armed, in violation of

§ 941.30 and § 939.63(1).

• State v. Peck14 – possession of a controlled substance is not a lesser included offense

of manufacturing a controlled substance.

• State v. Martin15 – battery is not a lesser included offense of second degree sexual

assault [sexual contact] under § 940.225(2)(a).

• State v. Clemons16 – possession of a controlled substance is not a lesser included

offense of first degree reckless homicide under § 940.02(2)(a), causing death by the

delivery of a controlled substance.

• State v. Rundle17 – reckless child abuse causing great bodily harm under

§ 948.03(3)(a) is not a lesser included offense of intentional child abuse causing

bodily harm under § 948.03(2)(b).

In many of these situations, it can be argued that the strict “statutory elements” test

leads to an unfair, or at least excessively rigid, result. (Some of the rigidity is relieved by

other subsections of § 939.66 which are discussed below.) This rigidity or unfairness is

compounded by the fact that the lesser included offense test has also been adopted for the

purposes of determining when multiple convictions are possible. See, for example, State v.

Elbaum, 54 Wis.2d 213, 194 N.W.2d 660 (1971). Under this rule, multiple convictions are

allowed whenever one offense is not “included” within the other under the definition of

§ 939.66.18

The “elements only” approach and alternative lesser included offense tests were

thoroughly reviewed in State v. Carrington.19 The Wisconsin Supreme Court reaffirmed

the “elements only” test but acknowledged two qualifications. First, a “penalty enhancer”

may be considered in determining what the statutory elements of the charged offense are.

Thus, a charge of endangering safety by conduct regardless of life, with the addition of the

penalty enhancer provided in § 939.63 – while possessing or using a dangerous weapon –

includes an element of possessing or using a dangerous weapon which becomes part of the

lesser included offense analysis. Second, the Carrington decision acknowledged that the

charging document may be referred to in one situation: where a statute provides alternative

elements, courts should look to the charging document to determine the greater crime to

which the elements only test applies.20

Wisconsin is not alone in its commitment to the strict statutory elements test. In United

States v. Schmuck, 840 F.2d 384 (7th Cir. 1988), the court, en banc, reversed a panel

decision and reaffirmed that the strict “comparison-of-the-elements” test is the proper one

to use in federal prosecutions in the 7th Circuit. The panel had adopted a more flexible,

“inherent relationship” test, which allowed consideration of the facts alleged in the charge

and the evidence presented. The en banc opinion held that the elements test is better for

three reasons: 1) it is more consistent with the “necessarily included” standard in Rule 31(c)

of the Federal Rules of Criminal Procedure; 2) it avoids problems in giving notice to the

defendant; and 3) it is consistent with the test used for double jeopardy purposes. The en

banc decision was affirmed by the United States Supreme Court, with the Court

emphasizing that the comparison-of-the-statutory-elements test is what is required by Rule

31(c). The court also found that the

elements test is far more certain and predictable in its application than the inherent

relationship test. . . [it] permits both sides to know in advance what jury

instructions will be available. . . [and] promotes judicial economy by providing a

clearer rule of decision and by permitting appellate courts to decide whether jury

instructions were wrongly refused without reviewing the entire evidentiary record

for nuances of reference.

United States v. Schmuck, 489 U.S. 705, 720-21 (1989)

B. Section 939.66(2): “A crime which is a less serious type of criminal homicide

than the one charged.”

Section 939.66(2) provides a special standard for homicides: all less serious types of

criminal homicide are considered to be included within all more serious types of homicide.

The evidence must support the giving of the instruction on the lesser offense, but in the

proper case, instruction on any homicide offense could be proper, even though the

“statutory elements” test of § 939.66(1) is not satisfied.21

This rule can be applied without difficulty in most cases. The Wisconsin Supreme

Court has compared the maximum penalties to determine if one homicide is less serious

than another. State v. Davis, 144 Wis.2d 852, 425 N.W.2d 411 (1988). Thus, for any given

homicide offense, all other homicides with lower maximum penalties are included crimes

and should be submitted to the jury if the evidentiary standard is satisfied.

Determining when one homicide is “less serious” than another has become more

complicated than one would expect it to be because some homicide offenses have the same

penalty. For example, both second degree intentional homicide under § 940.05 and first

degree reckless homicide under § 940.02(1) are Class B felonies; both second degree

reckless homicide under § 940.06 and homicide by intoxicated use of a vehicle under

§ 940.09(1) are Class D felonies. In State v. Wolske, 143 Wis.2d 175, 420 N.W.2d 60 (Ct.

App. 1988), convictions for a count of negligent homicide and a count of homicide by

intoxicated use of a vehicle for each victim of the defendant’s operation of a boat were

upheld. The court held that the crimes have different elements and that since the penalties

were the same, one was not “less serious” than the other. The specific situation addressed

in Wolske will not recur because penalties have changed. But the same situation can arise

with other statutes.

In State v. Patterson, 2010 WI 130, 329 Wis.2d 599, 790 N.W.2d 909, the defendant

gave a controlled substance to a 17-year-old girl and she died as a result of using the

substance. Patterson was convicted of 1st degree reckless homicide under § 940.02(2) and

of contributing to the delinquency of a child with death as a consequence under

§ 948.40(4)(a). The court affirmed the two convictions, concluding the offenses are not

“multiplicitous” because they require proof of different facts. Further, the court concluded

that contributing to the delinquency of a child with death as a consequence is not a “less

serious type of criminal homicide” for purposes of Wis. Stat. § 939.66(2). “Rather than

being a homicide statute, Wis. Stat. § 948.40(4)(a) is more akin to other offenses spread

throughout the statutes that proscribe certain conduct and impose a more serious

punishment where death results. . . [T]he legislature did not intend contributing to the

delinquency of a child with death as a consequence to be a type of criminal homicide.”

Patterson, ¶¶24, 25.

Non-homicide offenses may also be lesser included offenses of homicides but to so

qualify, they must satisfy one of the other subsections of § 939.66.

C. Section 939.66(3): “A crime which is the same as the crime charged except

that it requires recklessness or negligence while the crime charged requires a

criminal intent.”

The threshold requirement for application of § 939.66(3) is that the lesser crime be

“the same as” the crime charged, except for the recklessness or intent element. This

requirement has been interpreted to involve the same strict comparison of statutory

elements that applies under § 939.66(1). Therefore, subsection (3) does not apply where

the lesser offense involves any element not contained within the charged offense.22 For

example, first degree reckless injury, requiring “criminal recklessness” and “utter disregard

for human life” is not the “same crime” as aggravated battery and does not meet the test

under sub. (3).23

The second requirement for the application of subsection (3) is that the charged offense

must require a showing of criminal intent. Under the Criminal Code, when criminal intent

is an element of a crime it is indicated by the terms “intentionally,” “with intent to,” “with

intent that,” or by forms of the verbs “know” or “believe.”24 If none of these “intent words”

appear in the statute defining the greater offense, subsection (3) does not apply.25

A third requirement for the application of subsection (3) is that the lesser offense

require “recklessness or negligence.” When recklessness is an element of a crime, it is

indicated by the term “reckless” or “recklessly.” See § 939.24(2). When criminal

negligence is an element of a crime, it is indicated by the term “negligent.” See § 939.25(2).

D. Section 939.66(4): “An attempt in violation of § 939.32 to commit the crime

charged.”

An attempt to commit the charged crime is always a lesser included offense under

subsection (4). An implicit qualification on this rule is that the attempt must in fact be a

crime. This qualification was recognized by the Wisconsin Supreme Court in State v.

Melvin,26 where the court held that a defendant was not entitled to an instruction on

attempted homicide by reckless conduct because there was no such offense; one cannot

attempt to commit a crime which only requires reckless conduct.27

Note that several crimes are defined to punish an attempt equally with the completed

crime: § 161.41, Possession of a Controlled Substance; §§ 940.41-.49, Intimidation of

Witnesses and Victims; § 948.07, Child Enticement; and § 948.605(3), Discharge of

Firearm in a School Zone. In these situations, of course, the attempt is not lesser included

with respect to the completed crime.

E. The crime-specific provisions.

Several subsections of § 939.66 declare specific offenses to be included crimes of other

offenses. These have become necessary to preserve lesser included offenses where they are

logically appropriate but where the statutory drafting style and the strict statutory elements

test combine to eliminate them. The individual subsections are discussed briefly below.

1. Section 939.66(2m): “A crime which is a less serious or equally serious type

of battery than the one charged.”

This provision was created in 1987, apparently in response to the decision in State v.

Richards,28 which applied the strict comparison-of-the-statutory-elements test to hold that

simple battery was not a lesser included offense of aggravated battery. Since that time,

§ 940.19, the principal battery statute, has been extensively revised and numerous special

battery statutes have been created. See §§ 940.20, 940.201, 940.203, 940.205, 940.207, and

940.208.

In determining whether one battery offense is “less serious” than another, the

appropriate test is probably the same as that used for homicide offenses: comparing the

maximum penalties. (See the discussion of § 939.66(2) in section I. B., above.) Note that

unlike the similar provision for homicides in § 939.66(2), this subsection includes “equally

serious” types of battery – that is, those with the same penalties.

2. Section 939.66(2p): “A crime which is a less serious or equally serious type of

violation under s. 948.02 than the one charged.”

This subsection relates to sexual assault of a child. As amended by 2007 Wisconsin

Act 80, § 948.02 defines five first degree offenses [one Class A felony and four Class B

felonies], one second degree offense [Class C felony], and one offense involving failure to

act by a person responsible for the welfare of a child [Class F felony].

3. Section 939.66(2r): “A crime which is a less serious type of violation under

s. 943.23 than the one charged.”

This subsection relates to offenses defined in the statute titled, “Operating a Vehicle

Without the Owner’s Consent.” (Included are offenses referred to as “carjacking.” See

§ 943.23(1g).) The maximum penalties are compared to determine whether an offense is

“less serious.”29

4. Section 939.66(4m): “A crime of failure to timely pay child support under

s. 948.22(3) when the crime charged is failure to pay child support for more

than 120 days under § 948.22(2).”

This subsection relates to the felony nonsupport offense prohibited by § 948.22(2) and

the misdemeanor offense defined in sub. (3) of the same statute. The distinguishing feature

is the duration of the failure to pay support: if it is 120 days or more, the offense is a felony;

if less than 120 days, the offense is a misdemeanor.

5. Section 939.66(5): “The crime of attempted battery when the crime charged

is sexual assault, sexual assault of a child, robbery, mayhem, or aggravated

battery or an attempt to commit any of them.”

Under this subsection, attempted battery is an included offense of sexual assault,

sexual assault of a child, robbery, mayhem, and aggravated battery, and of an attempt to

commit any of those offenses, even though attempted battery may require proof of elements

not contained in the enumerated offenses. The Wisconsin Supreme Court has held that this

subsection limits attempted battery as an included offense only of the offenses listed.30 This

may be an overstatement, since attempted battery may well be an included offense of

crimes not enumerated in subsection (5) if other subsections of § 939.66 are satisfied. For

example, it would be an included crime under subsection (4) where battery is charged.

6. Section 939.66(6): “A crime specified in s. 940.285(2)(b)4. or 5. when the

crime charged is specified in ss. 940.19(2) to (6), 940.225(1), (2), or (3),

or 940.30.”

The “crime[s] specified in s. 940.285(2)(b)4. or 5.” are misdemeanor offenses

involving abuse of individuals at risk. This provision makes them included offenses of

felony battery crimes [§ 940.19(2) to (6)], first, second, and third degree sexual assault

[§ 940.225(1), (2), or (3)], and false imprisonment [§ 940.30].

7. Section 939.66(6c): “A crime that is a less serious type of violation under

s. 940.285 than the one charged.”

Section 940.285 defines several different offenses involving the abuse of individuals

at risk. The maximum penalties are compared to determine whether an offense is “less

serious.”31

8. Section 939.66(6e): “A crime that is a less serious type of violation under

s. 940.295 than the one charged.”

Section 940.295 defines several different offenses involving the abuse and neglect of

patients and residents of various facilities. The maximum penalties are compared to

determine whether an offense is “less serious.”32

9. Section 939.66(7): “The crime specified in s. 940.11(2) when the crime

charged is specified in s. 940.11(1).”

“The crime specified in s. 940.11(2)” is hiding or burying a corpse; the “crime

specified in s. 940.11(1)” is mutilating, disfiguring, or dismembering a corpse.

II. If an offense is “lesser included,” when is it proper to submit an instruction on

that offense?

Once it has been determined that a crime is a lesser included offense of the charged

crime, the trial judge must decide whether the evidence warrants the giving of the

instruction. The evidentiary standard is necessary because juries are not to be given the

discretion to pick and choose the offense of which the defendant should be found guilty.33

“Juries cannot rightly convict of the lesser merely from sympathy or for the purpose of

reaching an agreement. They are bound by the evidence. . . .”34

A. The general rule.

The evidentiary standard for determining when the instruction on the lesser crime

should be given was stated as follows in Zenou v. State:

. . . . if the evidence, in one reasonable view, would suffice to prove guilt of the

higher degree beyond a reasonable doubt, and if, under a different, but reasonable

view, the evidence would suffice to prove guilt of the lower degree beyond a

reasonable doubt, but leave a reasonable doubt as to some element included in the

higher degree but not in the lower, the court should, if requested, submit the lower

degree as well as the higher.35

The court in Zenou went on to describe why the lesser included offense instruction is

proper when this test is met:

. . . . Both the state and the defendant have a right to have the lower degree

submitted so that the jury will not be subjected to the choice of either acquitting

or convicting of the higher degree where it is really convinced of only the lower

degree. Ordinarily, if a court is in doubt, it should submit both degrees upon

request.36

The test has been upheld in the face of a challenge to its constitutionality. In Ross v.

State,37 the court rejected the defendant’s contention that an instruction should be given

whenever there is any evidence probative of the lesser offense.38 The court held that the

test did not deny the defendant due process by requiring that there be a reasonable basis in

the evidence for the instruction on the lesser offense. To add instructions on offenses not

supported by a reasonable basis would not be in the defendant’s interest, said the court,

since it would make compromise verdicts more likely in cases where acquittal would

otherwise have been proper.

In State v. Bergenthal, the court elaborated on the application of the evidentiary

standard:

The key word in the rule is “reasonable.” The rule does not suggest some near

automatic inclusion of all lesser but included offenses as additional options to a

jury. Only if “under a different, but reasonable view,” the evidence is sufficient to

establish guilt of the lower degree and also leave a reasonable doubt as to some

particular element included in the higher degree but not the lower, should the

lesser crime also be submitted to the jury. However, there is not to be read into the

rule the requirement that “there are not reasonable grounds on the evidence to

convict of the greater offense.” That goes too far. Where the defendant is able to

demonstrate that there is no reasonable view of the evidence that warrants

conviction on the greater offense, and the trial court agrees, there remains no issue

on such charge to go to the jury. The purpose of multiple verdicts is to cover

situations where under different, but reasonable, views of the evidence there are

grounds either for conviction of the greater or of the lesser offense. The lesser

degree verdict is not to be submitted to the jury unless there exists reasonable

grounds for conviction of the lesser offense and acquittal on the greater.39

There are, therefore, two requirements established by the evidentiary standard: 1)

reasonable grounds for acquittal on the offense charged (and on other instructed offenses

greater than that requested); 2) reasonable grounds for conviction on the lesser offense

requested. In assessing the “reasonableness,” the evidence should be viewed in the light

most favorable to the defendant.40

In homicide cases, where all less serious types of homicide are included crimes under

§ 939.66(3), there must be reasonable grounds for acquittal on all degrees of homicide

which are more serious than the offense on which an instruction is requested.41 However,

in at least one situation, full application of this test is not necessary: where the evidence

supports instructing on the complete privilege of self defense, an instruction on “imperfect

self defense” should always be submitted on request.42 Thus, in a case where first degree

intentional homicide is charged and the evidence supports submitting the complete

privilege of self defense, an instruction on second degree intentional homicide under

§ 940.01(2)(b) (unnecessary defensive force) is always appropriate. A similar situation

occurs where first degree intentional homicide is charged and the evidence supports an

instruction on the defense of voluntary intoxication: it is error to refuse to instruct on first

degree reckless homicide as a lesser included offense.43

B. A “reasonable view of the evidence” and inconsistent defenses.

Questions may arise in applying the general evidentiary rule in cases where submitting

the lesser included offense appears to be inconsistent with defense testimony or the

apparent defense theory of the case. For example, should a lesser offense involving

recklessness be submitted where a defendant charged with an intentional crime claims to

have acted in self defense? Or, should a lesser offense be submitted where the defense is

entirely exculpatory?44

In the Committee’s judgment, these questions are best resolved by applying the general

test to all the evidence by deciding whether a reasonable view of the evidence supports any

lesser included offense instruction that is requested. Trial courts “must recognize the fact

that a jury could disbelieve the defendant’s version of the facts.”45 Courts should look at

all the evidence and the reasonable inferences it supports to determine what offenses are

supported by different, but reasonable, views of that evidence.46

In State v. Thomas,47 the Wisconsin Court of Appeals stated this rule in the following

way:

We hold that the defendant or the state may request and receive lesser included

offense instructions, even when the defendant has given exculpatory testimony, if

under a reasonable but different view of the record, the evidence and any

testimony other than that part of the defendant’s testimony which is exculpatory

supports acquittal on the greater charge and conviction on the lesser charge.

III. The necessity of a request for a lesser included offense instruction; the trial

judge’s sua sponte authority or obligation to give such an instruction.

A. The general rules.

Wisconsin case law establishes three general rules relating to the trial judge’s duty and

authority to instruct on lesser included offenses. Assuming that an offense qualifies as

“included” under § 939.66 and that the evidentiary test is satisfied, the following rules

apply.

First, it is error not to submit the lesser included offense if requested by the state or the

defendant.48 Both the state and the defendant have the right to request that a lesser offense

be submitted, “so that the jury will not be subjected to the choice of either acquitting or

convicting of the higher degree where it is really convinced of only the lower degree.”49 If

the state requests an instruction on a lesser included offense and the evidentiary test is met,

an instruction is required, even if the defendant opposes it.50

Second, in the absence of a request by the state or the defendant, it is not error for the

trial court to fail to instruct on a lesser included offense.51 This is the general rule for all

sua sponte instructions in Wisconsin52 and contrasts with the duty of California trial judges,

for example, who must instruct on all “general principles of law” even in the absence of a

request.53 In California this duty extends to lesser included offenses54 and is apparently

intended to protect the defendant from incompetent counsel.55

Third, if no request has been made, Wisconsin trial courts apparently have the

authority, as opposed to the duty or obligation, to instruct on a lesser included offense. The

Wisconsin Supreme Court has held that “(t)he determining of instructions is not entirely

within the control of the defendant because the court may without any request instruct on

the degrees of the offense the evidence will sustain. . . .”56

While these general rules sound clear, reconciling them with each other and with other

principles raises some difficult issues.

B. No duty to instruct sua sponte versus “plain error.”

The Wisconsin rule appears to eliminate the trial judge’s obligation to give lesser

included offense instructions sua sponte,57 but this may not be the case in practice. This is

because failure to instruct, even in the absence of a request, may be reviewed by an

appellate court and may be grounds for reversal where it amounts to “plain error.”58

Further, instructions which “misstate the law” may also be reviewed in the absence of

proper objection.59 It is likely that the failure to instruct on a lesser included offense that is

fairly raised by the evidence could be characterized as “affecting substantial rights” or that

instructions which omit a fairly raised lesser included offense could be characterized as

“misstating the law.” Thus, although the Wisconsin trial judge is not specifically required

to give an instruction on a lesser included offense in the absence of a request, it may be a

good idea for the judge to explore the issue in a proper case. The possible problems with

doing so are discussed below.

C. Sua sponte instructions versus trial strategy.

One of the primary reasons for the Wisconsin rule requiring a request for a lesser

included offense instruction is the recognition that requesting or not requesting a lesser

included offense instruction is largely a matter of trial strategy.60 The theory is that the

defendant may choose to test the state’s evidence on the greater offense and take the chance

that it will be found to be insufficient, requiring an acquittal. For the trial judge to instruct

on an included crime where the defendant has chosen to go “all or nothing” on the charged

crime alone may raise questions of unfair interference with trial strategy.

D. Anticipating problems at the instruction conference.

The Committee recommends that the possible problems regarding the submission of

lesser included offenses be anticipated and dealt with at the instruction conference. The

defendant must be present; the conference must be recorded and should raise all appropriate

considerations. It is good practice to ask the state and the defendant if instructions on lesser

included offenses are requested.61 If requests are not made for offenses that the trial judge

believes may be raised by the evidence, specific inquiry should be made regarding the

defendant’s strategic decision not to request submission of that offense. The Committee

recommends that the defendant be addressed personally in this regard even though the

Wisconsin Supreme Court has held that a defendant is bound by counsel’s decision not to

request an instruction.62 Given the potential importance of the decision63 and the close

relationship of the judge’s sua sponte instruction authority64 to the need to protect

defendants from ineffective counsel, it may be significant to have the record indicate that

the defendant fully participated in the decision.65

IV. Instructing the jury on the transition between the charged crime and a lesser

included crime.

Wis JI-Criminal 112 and 12266 offer suggested uniform instructions for the transition

between the instruction on the charged crime and the instruction for a lesser included crime.

The specific issue with which these instructions deal is what result must be reached with

regard to the charged crime before moving on to the included crime. The objective is to

advise the jury of its options without having any coercive effect on free deliberation.

Wis JI-Criminal 112 and 122 resolve the issue by advising the jury to make every

reasonable effort to reach unanimous agreement on the charged crime before moving on to

the lesser included crime. This advice is contained in the following paragraph:

You should make every reasonable effort to agree unanimously on your verdict

on the charge of (name charged crime) before considering the offense of (name

lesser included crime). However, if after full and complete consideration of the

evidence, you conclude that further deliberation would not result in unanimous

agreement on the offense of (name charged crime), you should consider whether

the defendant is guilty of (name lesser included crime).67

The basis for this instruction is the assumption that it would be error for the instruction

to require the jury to be unanimous in finding the defendant not guilty of the charged crime

before considering the lesser offense. This conclusion has not been explicitly adopted by

the Wisconsin Supreme Court,68 but is implicit in two earlier decisions69 and has been

adopted in other states.70

At the other extreme from requiring unanimity on the charged crime is to allow the

jury to consider any of the submitted offenses without regard to sequence. This theory was

rejected on the ground that it is reasonable to ask that the jury’s attention first be focused

on the charged crime.

V. Other issues.

A. Instructing on an offense for which the statute of limitations has run.

In State v. Muenter, 138 Wis.2d 374, 406 N.W.2d 415 (1987), the Wisconsin Supreme

Court held that an instruction should be given on a lesser included offense even if the statute

of limitations has run on that crime. Muenter was charged with several felonies in violation

of the State Banking Code. The jury was instructed on lesser included misdemeanor

offenses on which the statute of limitations had run and found the defendant guilty of those

misdemeanors. On appeal, the court held that “the running of the statute of limitations does

not preclude the jury from reaching a verdict convicting the defendant of a crime; it rather

precludes the trial court from entering a judgment of conviction on the finding of guilt.”71

The court concluded that this result does not “work a fraud upon the jury’s verdict.” The

evidentiary support for submitting the lesser included offense must, of course, still exist.72

B. Attorney argument regarding lesser included offenses.

In State v. Neuser, 191 Wis.2d 131, 528 N.W.2d 49 (Ct. App. 1995), a conviction was

reversed because the prosecutor engaged in improper argument regarding the court’s

submission of a lesser included offense. The following remarks were made: “As to the

lesser included offense, the court did not submit that. The defense requested that and the

court granted the request. It’s not the court ordering that it be done.” 191 Wis.2d 131, 137.

The court of appeals held that this statement was improper for two reasons: it misstated the

law, and it presumed to speak for the trial court. The court described the proper scope of

argument:

The question of whether a lesser included offense is to be submitted is a legal issue

which is resolved between the court and counsel. It does not involve the jury, and

the proceedings relative to the question are not played out before the jury. With

the court having made that decision, it is not within the province of either counsel

to opine to the jury why the court may have chosen to do so. Rather, the role of

counsel is to argue whether the evidence supports the greater, the lesser or neither

charge.

191 Wis.2d 131, 138.