Avance v. State’s Empirical Analysis

Citation profile

13 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 13 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “Step two ... is designed to insure that the final instructions which are given to the jury conform to the issues and evidence before it. To guard against a violation of this long standing principle, the trial court examines that evidence which tends to prove or disprove the commission of the elements which compose the greater and lesser included offenses. Based on its examination, the trial court should instruct the jury on the lesser included offense only when it finds that there is "evidence of probative value from which the jury could properly find the defendant guilty of such lesser included offense." We note that a literal application of the above-quoted test would in most cases require trial courts to instruct the jury on lesser offenses which were found to be "included" within charged offenses. By definition, a lesser included offense is composed of elements which comprise a portion of the greater offense. Consequently, that evidence which the State presents in support of the charged offense will usually indicate the commission of those elements which constitute the lesser included offense ... The test is not so simple, however. A trial court should not give an instruction and form of verdict on a lesser included offense simply because the evidence indicates that the defendant committed the lesser offense in the process of the acts for which he or she was charged. (Emphasis added). To be sure, the evidence must establish the commission of the elements which comprise th”

   1 later decision quote this exact passage
   e.g. Aschliman v. State

2. “by careful drafting of the factual allegations of the information, the State may foreclose the availability of a lesser-included offense instruction.”

   1 later decision quote this exact passage
   e.g. Aschliman v. State