Can a defense attorney make a conscious deliberate choice to forego a particular instruction?

California, United States of America


The following excerpt is from People v. Francis, C083849 (Cal. App. 2018):

"When a defense attorney makes a 'conscious, deliberate tactical choice' to [request or] forego a particular instruction, the invited error doctrine bars an argument on appeal that the instruction was [given or] omitted in error. [Citations.]" (People v. Wader (1993) 5 Cal.4th 610, 657-658.) "In cases involving an action affirmatively taken by defense counsel, we have found a clearly implied tactical purpose to be sufficient to invoke the invited error rule. [Citations.]" (People v. Coffman (2004) 34 Cal.4th 1, 49.)

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