The Appellate Division continued in relevant part: But as we have emphasized, trial courts have an independent obligation to determine whether the jury should be given the option to convict on lesser charges. Even in the absence of a request-to-charge, “a trial court has an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense.” Although a manslaughter instruction is usually requested by a defendant, it is conceivable that the State could be the party seeking such an instruction, or the trial court could consider delivery of such an instruction on its own where neither party has made a request therefor.
One of the problems with what might be characterized as a “don’t ask/don’t charge” litigation strategy is that it puts the onus entirely on the trial judge to broach the issue. Furthermore, the parties’ strategic silence deprives the judge the benefit of helpful arguments in marshaling the relevant facts to determine whether the issue warrants a fulsome discussion. The situation is complicated further when the courts are forced to look to the record themselves (without any request by counsel) for circumstances that could provide the inference of provocation/passion where an altercation had taken place.” It is time to bring the decision whether to instruct on passion/provocation manslaughter out of the shadows and onto the record in cases where the trial court has already determined that the jury must consider whether the victim’s conduct affects the defendant’s culpability under the self-defense doctrine.
The recurring nature of the provocation/manslaughter jury instruction issue that was raised in this case for the first time on appeal prompts us to recommend a new procedural rule designed to enhance the decision-making process at the trial court level so that courts can better fulfill their independent obligation to charge a jury on passion/provocation when that instruction is required to be delivered. We also deem it appropriate to take steps to minimize the chances that an otherwise valid guilty verdict might have to be reversed for plain error. Any such reversal and the resultant need to retry a murder case exacts a toll not only on the parties and the courts, but also on the survivors of the homicide; victims have a keen interest in the fairness and finality of a trial verdict. At the risk of stating the obvious, we have an obligation to help ensure that error is not committed with respect to a passion/provocation jury instruction, not just to remedy plain error on appeal by vacating a conviction and remanding for a new trial.
This case is almost certainly going to be appealed to the New Jersey Supreme Court. It is rare for the appellate division to recommend new rules of criminal procedure. Those recommendations are almost always made by our state’s highest Court as opposed to an intermediate appellate court.