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In Commonwealth v. Woodward, the highly publicized murder trial of an au pair accused of killing an infant in her care, the defense team faced a strategic decision commonly encountered at trial: whether to request or to object to lesser included jury instructions. Put simply, the Woodward defense team had to decide whether to ask for an instruction that would permit the jury to return a manslaughter verdict, or to object to such an instruction, leaving the jury only the choice either to acquit the defendant or to convict her of second degree murder as charged in the indictment. Undoubtedly concerned that the jury might return a manslaughter verdict, either as a compromise or because it comported with the evidence, but apparently confident that the jury would acquit rather than return a murder verdict, the defense team chose to object to the submission of the manslaughter instruction. This strategic decision-based on the defense team's prediction of what the jury was likely to do when faced with an all-or-nothing choice-was personally and publicly approved by Ms. Woodward. Unfortunately for Ms. Woodward, the jury returned a guilty verdict. Fortunately for her, however, the trial judge invoked the court's statutory authority and reduced the verdict to the lesser included charge of manslaughter.



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