by Thomas Lundy

    In cases involving multiple defendants and/or multiple counts an issue may arise concerning the return of a partial verdict by the jury. In such cases important strategic issues may arise concerning what jury instructions, if any, to give the jurors and when to give them.

    In the federal system partial verdicts are permitted by Rule 31(b) of the Federal Rule of Criminal Procedure. "A jury is entitled to report partial verdicts as to less than all defendants [citation] and as to less than all counts. [Citation.]" United States v. Dolah, 245 F.3d 98, 108 (2nd Cir. 2001); see also, United States v. Benedict, 95 F.3d 17, 19 (8th Cir. 1996) [all other circuits to consider the question have approved the practice]; U.S. v. Ross, 626 F2d 77, 81 (9th Cir. 1980).) Such verdicts are also permitted in many state jurisdictions. (See e.g., Stone v. Superior Court (CA 1982) 31 C3d 503, 519 [183 CR 647]; People v. Marshall (CA 1996) 13 C4th 799, 826 [55 CR2d 347] [rule limited to situations where there is some indication of juror deadlock].)

B.     No Fixed Rule Re: Instruction

    Whether to give a partial verdict instruction requires consideration of case-specific circumstances. A fixed rule requiring or not requiring instruction would threaten to "disrupt the fine line which a trial judge must tread with respect to partial verdicts. Particularly where the jury has given no indication of agreement on any charge, a judge must be careful not to coerce juries into reaching decisions. [Citations.]" (Speaks v. U.S. (DC 1992) 617 A2d 942, 952.) "...[A]n instruction and inquiry on a partial verdict could easily [cause] [t]he jury [to] conclude that the best way to escape what had apparently become a frustrating and unpleasant process would be to reach a compromise on some charge." (Ibid.)

    Importantly, a rule of per se instruction "is inconsistent with the tactical judgments which defendants make at trial. The strength of the evidence, the configuration of the charges, and the defense's assessment of its chances with a particular jury are all factors which can influence a decision on whether the defense wishes to inquire into the possibility of a partial verdict. A per se rule requiring instruction and inquiry about a partial verdict in every case as a prerequisite to a mistrial would overlook the tactical decisions which the defense must make when a jury announces a deadlock, particularly since the essence of a deadlock is that some unspecified number of jurors favor conviction of the defendant on at least one charge. The defense may fear that the partial verdict which is returned may not be a favorable one. Further, even if favorable, the defense may not wish to have a less serious charge resolved--whatever the outcome--and be forced to face a second jury with only the most serious charge alone, where the jury's only choice would be to convict or acquit." (Speaks v. U.S., 617 A2d at 952.)

    Hence, the propriety of an instruction on a partial verdict must be evaluated in light of competing tactical considerations. For example, if the jury is instructed on its ability to return a partial verdict it may not fully deliberate. If the jury is not informed about the partial option the jury may be coerced into returning a verdict that does not represent its true beliefs.

    Further, in deciding whether to seek instruction authorizing the jury to return a partial verdict one scenario to consider is whether the defendant could end up being retried solely on the greater charge if a partial verdict as to the less is accepted. Most jurisdictions permit this result: "The case law from around the country is completely in line with [the] principle that a retrial on a greater, inclusive offense, following a declaration of mistrial because of a hung jury, is not barred by double jeopardy principles notwithstanding the fact that a guilty verdict was accepted and a sentence imposed with respect to a lesser, included offense. [Citations.]" (Rower v. State (GA 1996) 472 SE2d 297, 298; see also Richardson v. U.S., 468 US 317, 326 [104 SCt 3081; 82 LEd2d 242] (1984) [mistrial following a hung jury is not an event that terminates the original jeopardy to which the defendant was subjected]; Bell v. State (GA 1982) 292 SE2d 402, 404-05.)

    Hence, "even if favorable, the defense may not wish to have a less serious charge resolved--whatever the outcome--and be forced to face a second jury with only the most serious charge alone, where the jury's only choice would be to convict or acquit." (Speaks v. U.S., 617 A2d at 952.)

    It has been recommended that any partial verdict instruction should inform the jurors that partial verdicts which are returned (reported) may not be reconsidered. (United States v. Dolah, 245 F3d 98, 108 (2nd Cir. 2001); see also, United States v. DiLapi, 651 F2d 140, 147 (2d Cir. 1981) [instruction should "advise the jurors that any verdicts they choose to report will not be subject to later revision."] but see, United States v. Dakins, 872 F2d 1061, 1065 (D.C. Cir. 1989) [court rejected argument that "the court erred in accepting the jury’s partial verdict without first having specially instructed the jury as to a partial verdict’s finality"].)

    When to give a partial verdict instruction is subject to some dispute. In U.S. v. DiLapi, 651 F2d 140, 146-47 (2nd Cir. 1981), and U.S. v. Burke, 700 F2d 70, 78-80 (2nd Cir. 1983), the 2nd Circuit indicated that when the jury asks about or attempts to return a partial verdict, the court should neutrally explain the jury’s options of either returning the verdicts for each, or deferring any verdicts until the deliberations are concluded. (See also 6th Circuit Pattern Jury Instructions - Criminal 9.03 [Partial Verdicts], Commentary (1991).) However, not all standard instructions provide for the giving of a partial verdict instruction in the general instructions on verdict forms which are given before the jury retires to deliberate. The standard instructions which do include such a pre-deliberation instruction include Federal Judicial Center, Pattern Criminal Jury Instructions 58 [Selection Of Foreperson; Communication With The Judge; Verdict Forms] (1988). Other standard instructions provide for partial verdict instructions only after the jury has indicated that it wants to return a partial verdict or after the jury has deliberated for an extensive period of time. (See e.g., 6th Circuit Pattern Jury Instructions - Criminal 9.03 [Partial Verdicts] Commentary (1991).)

    The Sixth Circuit has concluded "that the latter approach is preferable. Initially, at least, the jury should be encouraged to try and reach unanimous agreement on all counts. Even if the jury has not specifically asked about or attempted to return a partial verdict, an instruction [on partial verdicts] may be appropriate if the jury has deliberated for an extensive period of time. What constitutes an extensive period of time will depend on the nature and complexity of the particular case." (6th Circuit Pattern Jury Instructions - Criminal 9.03 [Partial Verdicts], Commentary (1991).)

    You do not have to reach unanimous agreement on all the charges [and/or Counts] before returning a verdict on some of them. If you have reached unanimous agreement on some of the charges [and/or Counts], you may return a verdict on those, and then continue deliberating on the others. You do not have to do this, but you can if you wish.

[Cf., 6th Circuit Pattern Jury Instructions - Criminal 9.03 [Partial Verdicts] (1991), Para. 1; see also Criminal Jury Instructions for the District of Columbia 2.92 [Partial Verdict] (Bar Association of the District of Columbia, 4th ed. 1993).]

    When you go to the juryroom to begin considering the evidence in this case I suggest that you first select one of the members of the jury to act as your foreperson. This person will help to guide your discussions in the juryroom. Once you are there, if you need to communicate with me, the foreperson will send a written message to me. However, don't tell me how you stand as to your verdict-for instance, if you are split 6-6 or 8-4, don't tell me that in your note.

    As I have mentioned several times, the decision you reach must be unanimous: you must all agree.

    I want to read to you now what is called the verdict form. This is simply the written notice of the decision that you reach in this case. [Read the verdict form].

    When you have reached a decision, have the foreperson sign (each of you should sign) the verdict form, put the date on it, and return it to me. (Add for multicount or multidefendant trials: If you are able to reach a unanimous decision on only one or on only some of the (charges) (defendants), fill in those verdict forms only and return them to me).

[Source: Federal Judicial Center, Pattern Criminal Jury Instructions 58 [Selection Of Foreperson; Communication With The Judge; Verdict Forms] (1988).]

    (1) Members of the jury, you do not have to reach unanimous agreement on all the charges before returning a verdict on some of them. If you have reached unanimous agreement on some of the charges, you may return a verdict on those charges, and then continue deliberating on the others. You do not have to do this, but you can if you wish.

    (2) If you do choose to return a verdict on some of the charges now, that verdict will be final. You will not be able to change you minds about it later on.

    (3) Your other option is to wait until the end of your deliberations, and return all your verdicts then. The choice is yours.

    (4) I would ask that you now return to the juryroom and resume your deliberation.

[Source: 6th Circuit Pattern Jury Instructions - Criminal 9.03 [Partial Verdicts] (1991); see also Criminal Jury Instructions for the District of Columbia 2.92 [Partial Verdict] (Bar Association of the District of Columbia, 4th ed. 1993) as to para. 1.]

    Federal law gives you the right at any time during your deliberations to return a verdict or verdicts with respect to a defendant or those defendants as to whom you have agreed. Any such partial verdict is not subject to revision. You cannot change your mind about that as you continue to deliberate on any remaining issues in the case.

[Source: Instruction given in United States v. Johnson, 1991 U.S. App. LEXIS 12320 (4th Cir. 1991) UNPUBLISHED.]

    If you have reached a partial verdict, that is you have decided some counts and not others, you have the option of either reporting the verdicts you have reached now or to defer reporting of all verdicts until the conclusion of deliberations. Any partial verdicts that you choose to report will not be subject to later revision.

[Source: Adapted from U.S. v. DiLapi, 651 F2d 140, 146-47 (2nd Cir. 1981).]

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