State v. Keffer
In State v. Keffer, 860 P.2d 1118, 1126-31 (Wyo. 1993), the Court traced Wyoming's precedent on the issue of lesser-included offenses and related it to the development of similar precedent in other jurisdictions.
In doing so, the Court noted a lack of "clear consistency" in this Court's application of a standard, and we alluded to the "unsettled nature" of Wyoming's lesser-included offense jurisprudence. Id.
Finally, the Court adopted the federal Blockburger test, otherwise known as the statutory elements test, for determining whether a lesser-included offense instruction should be given:
"'Under this test, one offense is not "necessarily included" in another unless the elements of the lesser offense are a subset of the elements of the charged offense. Where the lesser offense requires an element not required for the greater offense, no instruction is to be given under Wyoming Rule 31(c).'" (Keffer, 860 P.2d at 1134.)
In adopting the statutory elements test, the Court emphasized the "certainty and predictability" that should follow: "'Because the elements approach involves a textual comparison of criminal statutes and does not depend on inferences that may be drawn from evidence introduced at trial, the elements approach permits both sides to know in advance what jury instructions will be available and to plan their trial strategies accordingly.'" Keffer, 860 P.2d at 1133.
The Court recognized, however, that a process for identifying when a lesser-included offense instruction should be given was still needed and that the first step in that process should be a request for such instructions by the parties. Keffer, 860 P.2d at 1134.
There are competing theories as to how, once a request has been made by a party, the decision should be made whether to give the lesser-included offense instruction.
The "jury function theory" holds that, if the lesser crime is necessarily included in the greater, the jury should be allowed to weigh the evidence and determine guilt as to either offense. Id.
The "court function theory" emphasizes the third and fourth elements from the five-part test cited above, requires the court to evaluate the evidence, and prevents the giving of a lesser-included offense instruction unless a fact question is present regarding one of the elements that differentiate the two crimes. Id.
In Keffer, the Court determined that the jury function theory, but not the court function theory, was consistent with the statutory elements test and that the judge's role should be limited to giving the lesser-included offense instruction "if there are in dispute factual issues that would permit a jury rationally to find the defendant guilty of the lesser offense and acquit the defendant of the greater." Id. at 1136.
The quantum of evidence necessary to meet this standard "ought to be perceived as minimal." Id. at 1135.