The All or Nothing Doctrine in Criminal Cases: Independent Trial Strategy or Gamesmanship Gone Awry?

60 Pages Posted: 19 Sep 2009

Date Written: September 13, 2009


The All-or-Nothing Doctrine. A simple catchy phrase, it speaks in shorthand of a strategy that permits parties in a criminal trial to forego instructions on provable lesser-included offenses, thereby forcing the jury to choose between conviction and acquittal on the greater charge. The doctrine is a starkly contrasting study in the relative worth of trial party freedom at the expense of full jury deliberations. Where sanctioned, the All-or-Nothing Doctrine flourishes because trial parties, rather than the court, are able to determine which of the provable charges will be sent to the jury.

Upon closer review, however, what appears to be uniformly held is in actuality a series of splintered views regarding the Lesser-Included Offense Doctrine and the role of the court in its administration. This article suggests that the tremendous disparity in approaches to the All-or-Nothing Doctrine is fueled by two diametrically opposed and irreconcilable policies. On the one hand, the premium attached to uncompromising and truthful jury deliberations necessitates giving lesser-included instructions where the evidence warrants it. On the other, the doctrine is promoted by historical deference given to parties to develop their own trial strategy unimpeded by outside interference.

Designated in this article as the “trial integrity” model of analysis (for its commitment to the fact finding process) and the “party autonomy” model of analysis (for its deference to the parties’ freedom to determine trial strategy), these underlying policies have shaped the parameters of the doctrine. Where competing values of trial integrity and party autonomy meet head to head, the All-or-Nothing Doctrine poses a serious dilemma and question: Does the lesser-included offense instruction exist primarily as a permissive tool for the pleasure of one or both trial parties, or is its inclusion impelled by external judicial and societal considerations? This article attempts to shed light on the varied and multi-layered responses to this question.

Keywords: lesser included offense, all-or-nothing, criminal law, trial strategy

Suggested Citation

Carpenter, Catherine L., The All or Nothing Doctrine in Criminal Cases: Independent Trial Strategy or Gamesmanship Gone Awry? (September 13, 2009). American Journal of Criminal Law, Vol. 26, pp. 257, 1999. Available at SSRN:

Catherine L. Carpenter (Contact Author)

Southwestern Law School ( email )

3050 Wilshire Blvd.
Los Angeles, CA 90010
United States
213-738-6875 (Phone)
213-738-6698 (Fax)

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