Invited Error Not Applicable Unless The Erroneous Instruction Was Requested By The Defendant (8th Circuit)

In United States v. Wisecarver, 598 F.3d 982, 985-990 (8th Cir. S.D., No. 09-1954, March 22, 2010) the prosecution argued that an appellate instructional claim should not be considered under the “invited error” doctrine because defense counsel failed to object to the allegedly erroneous instruction at trial.  However, the Eight Circuit rejected the prosecution’s invited error argument because “Wisecarver did not propose the jury instruction. . . .”  598 F.3rd at 988. [The reviewing court did, however, conclude that the failure to object required plain error review.]

For subscription based briefing and sample instructions on this and related issues see:

Forecite National™
265.3.7 - Lesser Included Offense: Objection As Invited Error
295.3.3 - Overcoming Invited Error
Forecite California™
PG VI(A) - Cognizability On Appeal Of Instructional Error: Failure To Object
PG VI(A)(2) - Invited Error: General Principles
PG VI(A)(3) - Invited Error: Joining D.A.’s Request For Instruction
PG VI(A)(5) - Invited Error: Inapplicable Where Requested Instruction Has Been Changed
PG VI(A)(7) - Invited Error As To Lesser Included Offenses
PG VI(A)(9) - Invited Error/Estoppel: Applicability To Prosecution
PG VI(C) - Duty To Request Instructions