What is the test for determining whether a defendant is guilty of a lesser included offence but innocent of the included offense?
MultiRegion, United States of America
The following excerpt is from U.S. v. Muniz, 684 F.2d 634 (9th Cir. 1982):
(1) a lesser included offense must be identified, and, (2) a rational jury must be able to find the defendant guilty of the included offense but innocent of the greater offense. In considering satisfaction of the latter prerequisite in a given case, the evidence presented at trial clearly must be a primary focus of analysis.
United States v. Johnson, 637 F.2d 1224, 1233-34 (9th Cir. 1980).
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