What is the test for instructing a jury to consider whether to convict a defendant of a lesser-included offence in a civil case?

This court has held that it is error to reject the defendant's timely request that the jury be told to consider the lesser-included offense if unable after reasonable effort to reach a verdict on the greater offense, a so-called "disagreement" instruction. United States v. Jackson, 726 F.2d 1466, 1469 (1984). However, either the acquittal-first or the disagreement instruction may be employed if the defendant expresses no choice. Id. Here, there is no indication in the record that petitioner requested the "disagreement" instruction. Thus, the district court did not err in instructing the jury pursuant to CALJIC 8.75.

5. CALJIC 2.52--Flight Instruction