What do you do when your judge won't give a lesser included jury instruction? It's raised by the evidence. It's been requested by defense counsel. It is a lesser included offense. In the midst of arguing and trying to get the judge to put it in, you end up on the record urging him to put it in. Judge still refuses to give the lesser included instruction.

Take good notes. You'll be trying that case again.

David,

You could simply urge your judge to put it in - in an abundance of caution, but still maintain the legal argument that it is not necessary, unless of course it is totally unquestionably undeniably absolutely necessary, in which case you should do the right thing and tell him you think it is necessary. After all, if that is the case, you would end up conceeding error on appeal anyhow; right?

Has your judge stated a reason, such as: "I find that no reasonable juror could possible convict on the lesser included offense without finding guilt on the charged offense?" If he's not, then how is he justifying his ruling? After all, most judges are loathe to be reversed on appeal, and if both sides are arguing the same thing, he has to be concerned about that unless he is sure of his footing.