In State v. Jackson, the Supreme Court of Missouri considered whether a trial court must instruct the jury regarding a lesser included offense. Specifically, it confronted this question in the context of a “nested” lesser included offense: an offense whose elements are entirely subsumed by the greater offense, and the greater offense has some “differential element” that the State bears the burden to prove. The court ultimately concluded that a jury instruction on such a lesser included offense, when requested by the defendant, must always be granted. A judge’s refusal to grant the requested instruction jeopardizes the defendant’s right to a trial by jury. Thus, the court ensured that juries would have the opportunity to consider a lesser degree of liability for the defendant’s actions.
To Instruct, or Not to Instruct, That Is the Question,
80 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol80/iss3/9