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THE ADVOCATE Volume 30, No. 1 January 2008
A jury must be instructed on the presumption of innocence. RCr 9.56(1). A jury must also be
instructed on the defendant not testifying, if requested to do so by the defendant. RCr 9.54(3).
Defense Theory of the Case – The rule is that the defendant’s contention that he is not guilty
is adequately presented to the jury in that part of the instructions requiring him to be acquitted
unless he is proven guilty beyond a reasonable doubt. But when he admits one or more of the
essential elements of the crimes charged but attempts to avoid conviction by proving facts or
circumstances in excuse (i.e., relies on an affirmative defense), “such defendant is entitled to a
concrete or definite and specific instruction on the defendant’s theory of the case.” Hayes v.
Commonwealth, 870 S.W.2d 786, 788 (Ky.1993). See also, e.g., Slaven v. Commonwealth, 962
S.W.2d 845 (Ky.1997), Sanborn v. Commonwealth, 754 S.W.2d 534, 549-550 (Ky.1988), Kohler v.
Commonwealth, 492 S.W.2d 198 (Ky.1973), Rudolph v. Commonwealth, 504 S.W.2d 340
(Ky.1974), and Taylor v. Commonwealth, 995 S.W.2d 355 (Ky.1999).
Lesser Included Offenses – Lesser included offenses are not technically defenses to any
charge, but the defendant is entitled to instructions on them because, in fact and principle,
lesser included offenses are defenses against conviction of a higher charge. A judge is required
to give instructions on lesser included offenses under his obligation to instruct on the whole
law of the case, but does not have to offer them sua sponte, nor does he have to give them in
the absense of an evidentiary foundation. See, e.g., Ward v. Commonwealth, 695 S.W.2d 404,
406 (Ky.1985), Trimble v. Commonwealth, 447 S.W.2d 348 (Ky.1969), Martin v. Commonwealth,
571 S.W.2d 613 (Ky.1978), Luttrell v. Commonwealth, 554 S.W.2d 75 (Ky.1977), Clifford v.
Commonwealth, 7 S.W.3d 371 (Ky.1999). An instruction on lesser included offenses is also
required when it is the prosecution which presents evidence which might support such an
instruction. Commonwealth v. Collins, 821 S.W.2d 488 (Ky.1991).
Objecting to – See the discussion above under “Directed Verdicts, Renewing.” RCr 9.54(2)
states: “No party may assign as error the giving or the failure to give an instruction unless the
party’s position has been fairly and adequately presented to the trial judge by an offered
instruction or by motion, or unless the party makes objection before the court instructs the jury,
stating specifically the matter to which the party objects and the ground or grounds of the
objection.” See Johnson v. Commonwealth, 105 S.W.3d 430 (Ky.2003).
Preserving - Tendering an instruction and arguing to the court in support of the instruction is
not sufficient to preserve the objection. A party must specifically object to the instructions
given by the court before the court gives those instructions. Commonwealth v. Collins, Ky.,
821 S.W.2d 488 (Ky.1991), see also Baker v. Commonwealth, 973 S.W.2d 54 (Ky.1998), and
Tamme v. Commonwealth, 973 S.W.2d 13 (Ky.1998), where defendant failed to request
instructions on intoxication, moral justification, or other mitigating circumstances, it was not
preserved for appellate review.
A defendant did not preserve for review his allegation of error challenging the trial court’s
failure to instruct the jury on alcohol intoxication in a public place where he never requested
that instruction. Blades v. Commonwealth, 957 S.W.2d 246 (Ky.1997), RCr 9.54(2), see also
Graves v. Commonwealth, 17 S.W.3d 858, 864 (Ky.2000).
Practice Tip: Tendering Instructions. Any instructions requested and denied by the court
should be tendered and placed in the record for review. (Beware that some judges do not
automatically place tendered instructions into the record.) If you object to giving instructions
on a specific charge but then tender instructions on that charge anyway, state for the record
that you are not waiving your objection to the giving of instructions but that, if the court is
going to give instructions, these are the instructions you would move the court to adopt.
Interrogatories - Trial courts may use fact-based interrogatories (special verdicts) in the jury
instructions in a criminal case if, and only if, the interrogatories are accompanied by verdict
forms which authorize the return of general verdicts. The interrogatories cannot take a jury
step-by-step to any one verdict, and the court cannot direct a general verdict of guilty based
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