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230 Neb. 607

433 N.W.2d 167

State v. Foster

Nebraska Supreme Court

Decided December 16, 1988

Nebraska Supreme Court · decided 1988-12-16

Key passage — most relied on by later courts

““Under the majority’s view the burden on the prosecutor to correctly charge the defendant with the proper crimes and to prove those charges has been shifted to the court. In essence, the prosecutor would not be required to charge the defendant with a crime capable of proof, but so long as some evidence of a lesser charge was presented, the court would be allowed to decide whether a lesser-included offense should be submitted to a jury or to consider itself as a factfinder. In my view the court becomes an active participant in the process instead of a disinterested presiding judge. I submit that this active participation offends notions of fairness and due process.” 3 Foster, 230 Neb. at 612, 433 N.W.2d at 170 (White, J., dissenting).”

quoted by 1 later decision, including 188 Ill. 2d 265 - People v. Garcia

“where the State fails to demonstrate a prima facie case on the crime charged, but does so on a lessor included offense, the trial court in its discretion may direct a verdict on the crime charged and submit the evidence to the trier of fact for consideration on the lesser-included offense.”

quoted by 1 later decision, including State v. Shaw

Relies on State v. Pribil · State v. Costanzo

Good law ✅— No negative treatment on recordhow we know

Decided 1988-12-16

How this case has been cited

Cited by 26 later decisions — most recently June 2018 · most notably State v. Andersen (1989), 188 Ill. 2d 265 - People v. Garcia (1999)

26 state decisions

801988199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

White, J.,

¶1dissenting.

¶2I dissent. The majority holds that where the State fails to demonstrate a prima facie case on the crime charged, but does so on a lesser-included offense, the trial court in its discretion may direct a verdict on the crime charged and submit the evidence to the trier of fact for consideration on the lesser-included offense.

¶3This court’s current position on instructing the jury on lesser-included offenses, beginning with the rule’s inception in State v. Pribil, 224 Neb. 28, 395 N.W.2d 543 (1986), and most recently articulated in State v. Costanzo, 227 Neb. 616, 419 N.W.2d 156 (1988), is that a court sua sponte may give a lesser-included offense instruction, but it is not required to do so unless the evidence warrants it and a party requests it. That rule has not, and should not, be applied where the prosecutor has failed to make a prima facie case on the crime charged, the very situation presented in this case.

¶4Under the majority’s view the burden on the prosecutor to correctly charge the defendant with the proper crimes and to prove those charges has been shifted to the court. In essence, the prosecutor would not be required to charge the defendant with a crime capable of proof, but so long as some evidence of a lesser charge was presented, the court would be allowed to decide whether a lesser-included offense should be submitted to a jury or to consider itself as a factfinder. In my view the court becomes an active participant in the process instead of a disinterested presiding judge. I submit that this active participation offends notions of fairness and due process.

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