The Jodi Arias defense moved the court to instruct the jury on the lesser included offense of manslaughter. How can they do that if they claim she killed Travis Alexander in self defense? In State v. Wall, the Arizona Supreme Court said:
Arizona Rule of Criminal Procedure 23.3 requires the trial judge to provide the jury with verdict forms "for all offenses necessarily included in the offense charged, an attempt to commit the offense charged or an offense necessarily included therein, if such attempt is an offense." If requested to do so and the evidence supports it, the trial judge must also instruct the jurors on all offenses "necessarily included" in the offense charged. Ariz. R.Crim. P. 21.3(c) cmt.; State v. Celaya, 135 Ariz. 248, 251, 660 P.2d 849, 852 (1983).
Although the terms are often used interchangeably, a "lesser included" offense is not always a "necessarily included" offense for purposes of Rule 23.3. State v. Dugan, 125 Ariz. 194, 195, 608 P.2d 771, 772 (1980). An offense is "lesser included" when the "greater offense cannot be committed without necessarily committing the lesser offense." Id. But an offense is "necessarily included," and so requires that a jury instruction be given, only when it is lesser included and the evidence is sufficient to support giving the instruction. Id. In other words, if the facts of the case as presented at trial are such that a jury could reasonably find that only the elements of a lesser offense have been proved, the defendant is entitled to have the judge instruct the jury on the lesser-included offense. Id. (citing Sansone v. United States, 380 U.S. 343, 351, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965))...
We deem evidence sufficient to require a lesser-included offense instruction if two conditions are met. The jury must be able to find (a) that the State failed to prove an element of the greater offense and (b) that the evidence is sufficient to support a conviction on the lesser offense. State v. Caldera
What this means the jury could reasonably find the defendant guilty of lesser included offense based on the evidence presented, the judge must instruct the jury on the lesser included. That means the jury can find Ms. Arias, if Judge Stephens rules it would be reasonable, guilty of manslaughter as a lesser included of murder. Importantly, the Jodi Arias can request a lesser included instruction even though the defense has claimed self defense, an all or nothing defense.
Why does courts allow lesser included instruction?
The rule requiring instruction on lesser-included offenses is designed to prevent a jury from convicting a defendant of a crime, even if all of its elements have not been proved, simply because the jury believes the defendant committed some crime. As the Supreme Court explained: "Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction." Beck v. Alabama, 447 U.S. 625, 634, 100 S.Ct. 2382,
In Ms. Arias' case, both manslaughter and second degree murder would be lesser included offenses of count one murder in the first degree, intent to kill with premeditation. All the elements of the three offenses are the same except for the mens rea or "state of mind". First degree murder requires "specific intent to kill" without justification. Second degree murder requires "general intent" or depraved indifference to death. Finally, the manslaughter state of mind is "recklessly causing the death" of another person, or it could be "depraved indifference" that resulted from the "heat of passion from adequate provocation". The difference between manslaughter and second degree murder in this case is nothing but academic because I believe if Ms. Arias is convicted of either charge she will receive the substantially aggravated term of prison. For manslaughter, the maximum sentence is 21 years, while the maximum for second degree murder is 25 years.
Note that the lesser included instruction only apply to count one. They would not be lesser included offenses of count two murder in the first degree murder, felony murder.