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.

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.

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

2021The State relies on State v. Studd to contend that no exception to the invited error doctrine exists for cases in which a later change in law leads to the purported error. 137 Wn.2d 533, 547 , 973 P.2d 1049 (1999) (holding that the invited error doctrine prohibited the appellants from complaining about jury instructions they proposed despite an intervening change in the law invalidating those instructions).

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

2021The State relies on State v. Studd to contend that no exception to the invited error doctrine exists for cases in which a later change in law leads to the purported error. 137 Wn.2d 533, 547 , 973 P.2d 1049 (1999) (holding that the invited error doctrine prohibited the appellants from complaining about jury instructions they proposed despite an intervening change in the law invalidating those instructions).

2016State v, Bover, 91 Wn.2d 342, 345 , 588 P.2d 1151 (1979) (applying the invited error No. 73398-2-1/10 doctrine where the defendant requested a particular jury instruction); State v. Carson, 179 Wn.

2016State v, Bover, 91 Wn.2d 342, 345 , 588 P.2d 1151 (1979) (applying the invited error No. 73398-2-1/10 doctrine where the defendant requested a particular jury instruction); State v. Carson, 179 Wn.

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, "[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 .

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)).

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)).

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.

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.

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)).

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)).

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

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

2024“If instructional error is the result of ineffective assistance of counsel, the invited error doctrine does not preclude review.” State v. Kyllo, 166 Wn.2d 856, 861 , 215 P.3d 177 (2009). c.

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).

2025“The basic premise of the invited error doctrine is that a party who sets up an error at trial cannot claim that very action as error on appeal and receive a new trial.” State v. Momah, 167 Wn.2d 140, 153 , 217 P.3d 321 (2009).

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)).

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

2024“If instructional error is the result of ineffective assistance of counsel, the invited error doctrine does not preclude review.” State v. Kyllo, 166 Wn.2d 856, 861 , 215 P.3d 177 (2009). c.

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).

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).

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).

2025“The basic premise of the invited error doctrine is that a party who sets up an error at trial cannot claim that very action as error on appeal and receive a new trial.” State v. Momah, 167 Wn.2d 140, 153 , 217 P.3d 321 (2009).

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)).

2021App. 75, 89 , 107 P.3d 141 (2005) (“Under 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.”); see also State v. Henderson, 114 Wn.2d 867, 870 , 792 P.2d 514 (1990) (applying the invited error doctrine even when the alleged error was of constitutional magnitude); State v. Corbett, 158 Wn.

2021App. 75, 89 , 107 P.3d 141 (2005) (“Under 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.”); see also State v. Henderson, 114 Wn.2d 867, 870 , 792 P.2d 514 (1990) (applying the invited error doctrine even when the alleged error was of constitutional magnitude); State v. Corbett, 158 Wn.

2025In determining whether the invited error doctrine -4- No. 85852-1-I 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- No. 85852-1-I 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).

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.

2010State v. Phelps, 113 Wash.App. 347, 353 , 57 P.3d 624 (2002) ("The invited error doctrine applies ... where the defendant engaged in some affirmative action by which he knowingly and *60 voluntarily set up the error."); see also State v. Henderson, 114 Wash.2d 867, 870-71 , 792 P.2d 514 (1990) (applying the invited error doctrine even when the alleged error is of constitutional magnitude). ¶ 30 In addition, when read together, the trial court's instructions accurately informed the jury about its duty.

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.

2018"Under the invited error doctrine, a defendant may not request that instructions be given to the jury and then complain upon appeal that the instructions are constitutionally infirm." State v. Aho, 137 Wn.2d 736, 744-45 , 975 P.2d 512 (1999); State v. Hood, 196 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.

2018"Under the invited error doctrine, a defendant may not request that instructions be given to the jury and then complain upon appeal that the instructions are constitutionally infirm." State v. Aho, 137 Wn.2d 736, 744-45 , 975 P.2d 512 (1999); State v. Hood, 196 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).

2019App. 430, 434 , 848 P.2d 1322 (quoting State v. Young, 63 Wn.

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.