The state jury in the Christopher Deedy murder retrial will have the option to consider finding the U.S. State Department special agent guilty of manslaughter.

Circuit Judge Karen Ahn informed the lawyers in the case this afternoon that she has included manslaughter and assault as options in her instructions to the jury. However, because lawyers for both sides objected to including assault, Ahn said she will “think about it a little bit more.”

The jury will return to court Tuesday to hear the instructions and closing arguments.

In Deedy’s last trial, which ended with a hung jury last August, legal observers and the family of shooting victim Kollin Elderts, were critical of the prosecutor for not pursing the manslaughter option and of Ahn for not providing it.

Ahn said this afternoon that her decision to include lesser charges is based on two Hawaii Supreme Court decisions made after Deedy’s first trial.

Deedy, 30, is on trial for murder for fatally shooting the 23-year-old Elderts in a Waikiki McDonald’s restaurant in November 2011.