In cases other than murder/manslaughter, a trial judge's obligation to leave a lesser alternative verdict to the jury depends on four factors: (1) evidence raising the alternative as a real and not remote possibility; (2) reliance on such evidence during the trial; (3) a real chance the jury would convict of the lesser offence; and (4) a request by a party. Counsel's failure to request the alternative at trial will weigh heavily against a complaint on appeal that the alternative was not left. The responsibility for identifying real issues remains with the trial judge, not counsel.
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