invited error in Washington

2025When an essential element is omitted from the to-convict instructions, the instructions are constitutionally defective and require reversal unless (1) the invited error doctrine applies, State v. Henderson, 114 Wn.2d 867, 871 , 792 P.2d 514 (1990), or (2) the omission was harmless, Hassan, 184 Wn. App. at 149 . 1.

2025When an essential element is omitted from the to-convict instructions, the instructions are constitutionally defective and require reversal unless (1) the invited error doctrine applies, State v. Henderson, 114 Wn.2d 867, 871 , 792 P.2d 514 (1990), or (2) the omission was harmless, Hassan, 184 Wn. App. at 149 . 1.

2025And it was the prosecutor who initially suggested a limiting instruction in lieu of severing the offenses “to make it very clear to the jurors what the evidence is to be considered for and the reasons for that.” The trial court agreed that such an instruction would be “appropriate” and recognized that a “limiting instruction can really assist in keeping jurors focused on what their obligations are and how they are to consider the evidence being presented.” Given the prosecutor’s shared responsibility for this erroneous limiting instruction, the State’s invited error argument easily fails. 5 Se

2025And it was the prosecutor who initially suggested a limiting instruction in lieu of severing the offenses “to make it very clear to the jurors what the evidence is to be considered for and the reasons for that.” The trial court agreed that such an instruction would be “appropriate” and recognized that a “limiting instruction can really assist in keeping jurors focused on what their obligations are and how they are to consider the evidence being presented.” Given the prosecutor’s shared responsibility for this erroneous limiting instruction, the State’s invited error argument easily fails. 5 Se

2016McNeil, 161 Wash. at 223 . ¶19 Under the invited error doctrine, a defendant “ ‘may not request an instruction and later complain on appeal that the requested instruction was given.’ ” State v. Henderson, 114 Wn.2d 867, 870 , 792 P.2d 514 (1990) 4 *777 (quoting State v. Boyer, 91 Wn.2d 342, 345 , 588 P.2d 1151 (1979)).

2016McNeil, 161 Wash. at 223 . ¶19 Under the invited error doctrine, a defendant “ ‘may not request an instruction and later complain on appeal that the requested instruction was given.’ ” State v. Henderson, 114 Wn.2d 867, 870 , 792 P.2d 514 (1990) 4 *777 (quoting State v. Boyer, 91 Wn.2d 342, 345 , 588 P.2d 1151 (1979)).

1999In Gentry , we also rejected defendant's challenge to the same "statutory question" instruction on substantive grounds, but noted, as here, "[d]efendant did not raise this issue below and in fact requested a substantially identical instruction.... [I]n the future the doctrine of invited error will be applied in capital cases[.]" Gentry, 125 Wash.2d at 652 , 888 P.2d 1105 .

1999In Gentry , we also rejected defendant’s challenge to the same “statutory question” instruction on substantive grounds, but noted, as here, “[djefendant did not raise this issue below and in fact requested a substantially identical instruction. . . . [I]n the future the doctrine of invited error will be applied in capital cases[.]” Gentry, 125 Wn.2d at 652 .

2019The invited error doctrine “‘appears to require affirmative actions by the defendant . . . [in which] the defendant took knowing and voluntary actions to set up the error’” as opposed to a defendant waiving an error “‘where the defendant’s actions were not voluntary.’” Call, 144 Wn.2d at 328 (alterations in original) (quoting In re Pers.

2003See Call, 144 Wn.2d at 328 , in which the Supreme Court rejected the State’s invited error argument and considered Call’s petition, noting, “Because there was no apparent affirmative action by Respondent which contributed to the inadvertent error, we conclude he did not invite it.” Call, 144 Wn.2d at 329 .

2025“The original goal of the invited error doctrine was to ‘prohibit[] a party from setting up an error at trial and then complaining of it on appeal.’” City of Seattle v. Patu, 147 Wn.2d 717, 720 , 58 P.3d 273 (2002) (alteration in original) (quoting State v. Pam, 101 Wn.2d 507, 511 , 680 P.2d 762 (1984)).

2025“The original goal of the invited error doctrine was to ‘prohibit[] a party from setting up an error at trial and then complaining of it on appeal.’” City of Seattle v. Patu, 147 Wn.2d 717, 720 , 58 P.3d 273 (2002) (alteration in original) (quoting State v. Pam, 101 Wn.2d 507, 511 , 680 P.2d 762 (1984)).

2025“The original goal of the invited error doctrine was to ‘prohibit[] a party from setting up an error at trial and then complaining of it on appeal.’” City of Seattle v. Patu, 147 Wn.2d 717, 720 , 58 P.3d 273 (2002) (alteration in original) (quoting State v. Pam, 101 Wn.2d 507, 511 , 680 P.2d 762 (1984)).

2025“The original goal of the invited error doctrine was to ‘prohibit[] a party from setting up an error at trial and then complaining of it on appeal.’” City of Seattle v. Patu, 147 Wn.2d 717, 720 , 58 P.3d 273 (2002) (alteration in original) (quoting State v. Pam, 101 Wn.2d 507, 511 , 680 P.2d 762 (1984)).

2025Lastly, “[u]nder the doctrine of invited error, even where constitutional rights are involved, we are precluded from reviewing jury instructions when the defendant has proposed an instruction or agreed to its wording.” State v. Winings, 126 Wn. App. 75, 89 , 107 P.3d 141 (2005).

2025Lastly, “[u]nder the doctrine of invited error, even where constitutional rights are involved, we are precluded from reviewing jury instructions when the defendant has proposed an instruction or agreed to its wording.” State v. Winings, 126 Wn. App. 75, 89 , 107 P.3d 141 (2005).

2016Because Randall initially proposed the language in the instruction that he challenges on appeal and he materially contributed to the final jury instruction given, we conclude the invited error doctrine bars his claim on appeal. 6 Momah, 167 Wn.2d at 154-55 ; In re Dependency of K.R., 128 Wn.2d 129, 147 , 904P.2d 1132, 1141 (1995). 7 State v. Henderson, 114 Wn.2d 867, 870 , 792 P.2d 514 (1990); Patu, 147 Wn.2d at 720 . 8 CP at 316 (emphasis added). 9 CP at 279 (emphasis added).

2013The JIS quoting In re report here was attached to Havens' s August 19, 2011 indigency screening form. 8 No. 43362 -1 - II materially contributed thereto." In re Dependency of K.R., 128 Wn.2d 129 , 147, 904 P. 2d 1132 1995) ( citing State v. Pam, 101 Wn.2d 507, 511 , 680 P. 2d 762 ( 1984), overruled on other grounds in State v. Olson, 126 Wn.2d 315 , 893 P. 2d 629 ( 1995)). " The invited error doctrine prevents parties from benefiting from any error they caused at trial regardless of whether it was done intentionally or unintentionally.

2026In such cases, “the invited error doctrine does not preclude review.” State v. Kyllo, 166 Wn.2d 856, 861 , 215 P.3d 177 (2009).

2026In such cases, “the invited error doctrine does not preclude review.” State v. Kyllo, 166 Wn.2d 856, 861 , 215 P.3d 177 (2009).

2025In State v. Corbett, 158 Wn. App. 576, 592 , 242 P.3d 52 (2010), we held that where the defendant proposed jury instructions that did not include a Petrich instruction, the invited error doctrine precluded him from challenging on appeal for the first time the trial court’s failure to provide a Petrich unanimity instruction.

2025In State v. Corbett, 158 Wn. App. 576, 592 , 242 P.3d 52 (2010), we held that where the defendant proposed jury instructions that did not include a Petrich instruction, the invited error doctrine precluded him from challenging on appeal for the first time the trial court’s failure to provide a Petrich unanimity instruction.

2025Daniels cites to State v. Simms, No. 71863-1-I (Wash. Ct. App. Sept. 14, 2015) (unpublished),7 and State v. LeFaber, 128 Wn.2d 896 , 904 n.1, 913 P.2d 369 (1996) (Alexander, J., dissenting), for the proposition that where the record is unclear as to who proposed the instruction, the invited error doctrine does not apply.

2025Daniels cites to State v. Simms, No. 71863-1-I (Wash. Ct. App. Sept. 14, 2015) (unpublished),7 and State v. LeFaber, 128 Wn.2d 896 , 904 n.1, 913 P.2d 369 (1996) (Alexander, J., dissenting), for the proposition that where the record is unclear as to who proposed the instruction, the invited error doctrine does not apply.

2026Under the invited error doctrine, “a party who sets up an error at trial cannot claim that very action as error on appeal.” State v. Momah, 167 Wn.2d 140, 153 , 217 P.3d 321 (2009).

2026Under the invited error doctrine, “a party who sets up an error at trial cannot claim that very action as error on appeal.” State v. Momah, 167 Wn.2d 140, 153 , 217 P.3d 321 (2009).

2021The invited error doctrine precludes judicial review “only where the defendant engaged in some affirmative action by which he knowingly and voluntarily set up the error.” State v. Phelps, 113 Wn. App. 347, 353 , 57 P.3d 624 (2002).

2021The invited error doctrine precludes judicial review “only where the defendant engaged in some affirmative action by which he knowingly and voluntarily set up the error.” State v. Phelps, 113 Wn. App. 347, 353 , 57 P.3d 624 (2002).

2014Restraint of Tortorelli, 149 Wn.2d 82, 94 , 66 P.3d 606 (2003) (applying the invited error doctrine to collateral review of an instructional error).

2014Restraint of Tortorelli, 149 Wn.2d 82, 94 , 66 P.3d 606 (2003) (applying the invited error doctrine to collateral review of an instructional error).

2025“When a defendant proposes an instruction that is identical to the instruction the trial court gives, the invited error doctrine bars an appellate court from reversing the conviction because of an error in that jury instruction.” State v. Summers, 107 Wn.

2024The invited error doctrine precludes this court from reviewing errors in jury instruction, “‘even where constitutional rights are involved . . . when the defendant has proposed an instruction or agreed to its wording.’” Weaver, 198 Wn.2d at 465 (quoting State v. Winings, 126 Wn. App. 75, 89 , 107 P.3d 141 (2005)); see also State v. Summers, 107 Wn. App. 373, 381 , 28 P.3d 780 (2001) (“When a defendant proposes an instruction that is identical to the instruction the trial court gives, the invited error doctrine bars an appellate court from reversing the conviction because of an error in that ju

2024The invited error doctrine prohibits “ ‘a party from setting up an error at trial and then complaining of it on appeal.’ ” City of Seattle v. Patu, 147 Wn.2d 717, 720 , 58 P.3d 273 (2002) (quoting State v. Pam, 101 Wn.2d 507, 511 , 680 P.2d 762 (1984), overruled on other grounds by State v. Olson, 126 Wn.2d 315 , 893 P.2d 629 (1995)).

2024The invited error doctrine prohibits “ ‘a party from setting up an error at trial and then complaining of it on appeal.’ ” City of Seattle v. Patu, 147 Wn.2d 717, 720 , 58 P.3d 273 (2002) (quoting State v. Pam, 101 Wn.2d 507, 511 , 680 P.2d 762 (1984), overruled on other grounds by State v. Olson, 126 Wn.2d 315 , 893 P.2d 629 (1995)).

2026See State v. Pervez, 15 Wn. App. 2d 265 , 272 n.11, 478 P.3d 103 (2020). 7 “The invited error doctrine precludes a criminal defendant from seeking appellate review of an error [they] helped create, even when the alleged error involves constitutional rights.” State v. Mercado, 181 Wn. App. 624, 629-30 , 326 P.3d 154 (2014).

2026In determining whether the invited error doctrine applies, the court “may consider whether the [appellant] affirmatively assented to the error, materially contributed to it, or benefited from it.” Id. at 630 .

2025In determining whether the invited error doctrine -4- applies, courts consider “whether the defendant affirmatively assented to the error, materially contributed to it, or benefited from it.” In re Coggin, 182 Wn.2d 115, 119 , 340 P.3d 810 (2014) (plurality opinion).

2025In determining whether the invited error doctrine -4- applies, courts consider “whether the defendant affirmatively assented to the error, materially contributed to it, or benefited from it.” In re Coggin, 182 Wn.2d 115, 119 , 340 P.3d 810 (2014) (plurality opinion).

2023App. 739, 774 , 320 P.3d 77 (2013) (“Under the invited error doctrine, a party may not set up an error at trial and then complain of it on appeal.”).

2019App. 739, 774 , 320 P.3d 77 (2013). 82 Id. 83 RP (Oct. 31, 2017) at 19-20. 84 CP at 999. 22 No. 79656-9-1/23 West now assigns error to the ruling, but the invited error doctrine precludes him from doing so.

1993Invited error prohibits a party from "setting up error in the trial court and then complaining of it on appeal." State v. Young, 63 Wn. App. 324, 330 , 818 P.2d 1375 (1991).

1993Invited error prohibits a party from "setting up error in the trial court and then complaining of it on appeal." State v. Young, 63 Wn. App. 324, 330 , 818 P.2d 1375 (1991).

2020However, the invited error doctrine does not apply when a defendant maintains the error occurred as a result of ineffective assistance of counsel. 5 No. 36738-0-III State v. Moen See State v. Aho, 137 Wn.2d 736, 745 , 975 P.2d 512 (1999); State v. Rodriguez, 121 Wn.

2020However, the invited error doctrine does not apply when a defendant maintains the error occurred as a result of ineffective assistance of counsel. 5 No. 36738-0-III State v. Moen See State v. Aho, 137 Wn.2d 736, 745 , 975 P.2d 512 (1999); State v. Rodriguez, 121 Wn.

2003See, e.g., State v. Henderson, 114 Wn.2d 867, 870 , 792 P.2d 514 (1990); State v. Neher, 112 Wn.2d 347, 352-53 , 771 P.2d 330 (1989).

2003See, e.g., State v. Henderson, 114 Wn.2d 867, 870 , 792 P.2d 514 (1990); State v. Neher, 112 Wn.2d 347, 352-53 , 771 P.2d 330 (1989).

2026“The invited error doctrine prohibits a party from setting up an error below and then complaining of it on appeal.” In re Marriage of Morris, 176 Wn.

2025“The invited error doctrine prohibits a party from setting up an error below and then complaining of it on appeal.” In re Marriage of Morris, 176 Wn. App. 893, 900 , 309 P.3d 767 (2013).