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275.3 Lesser Included Offenses: Deliberation And Verdict: Order Of Deliberations

    275.3.1 Order Of Deliberation May Influence Verdict
    275.3.2 Order Of Deliberations: Should Consider Lesser Offense When At Least One Juror Has A Relationship Doubt As To Greater Offense
    275.3.3 Order Of Deliberations: Requirement That Jury Consider Lesser Included Offenses
    275.3.4 Order Of Deliberations: Murder -- First Decide Whether It Is Murder, Then Degree
    275.3.5 Order Of Deliberations: Consideration Of Lesser Offense After Finding Defendant Not Guilty Of Greater Offense
    275.3.6 Order Of Deliberations: Consideration Of Lesser Offense First When Different Degrees Are Charged
    275.3.7 Order Of Deliberations: Jury Should Consider Substantive Offense First Before Considering Enhancement

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    275.3.1    Order Of Deliberation May Influence Verdict

PRACTICE NOTE: Regardless of whether or not the jury is given an acquittal first instruction (see FORECITE National™ 275.4 [Lesser Included Offenses: Deliberation And Verdict: The Acquittal First Rule]) the order or sequence in which the jury is instructed on the various charges may influence the jury. For example, the following quotation illustrates how an instruction which requires consideration of the charges seriatim may be prejudicial: "Considering the instructions as a whole, we note that the murder instruction precedes the two voluntary manslaughter instructions. This has significance because just as a supplemental instruction may take on special prominence in the jury's mind [citation to Bollenbach v. U.S. (1946) 326 US 607 [66 SCt 402; 90 LEd 350]], so the murder instruction stands at the top of the jury instruction check-list. Jurors are therefore encouraged by the structure of the instruction to answer its requirements first and then move on only if those requirements cannot be met." (Falconer v. Lane (7th Cir. 1990) 905 F2d 1129, 1136.)

    See also FORECITE National™ 2.4 [Sequence Of Instructions].

See 6th Circuit Pattern Jury Instructions - Criminal 8.07.

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RATIONALE: Any juror who has a reasonable doubt as to the greater offense should be permitted to consider the lesser offense.

POINTS AND AUTHORITIES: It may be argued that the order of jury deliberations should not be restricted at all. (See FORECITE National™ 275.3.3 [Requirement That Jury Consider Lesser Offenses].) It may also be argued that the defense at its option, should have the jury instructed that the lesser offense may be considered if no verdict can be reached as to the greater offense. (See e.g., 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 2.02 [Lesser Included Crimes] (1999).) However, if the jury is instructed that it must consider the greater offense first, at whatever point any juror concludes that the defendant is not guilty of the greater offense, conviction on that charge will not be possible and the jury should be permitted to consider and return a verdict on the lesser charge. (See 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 3.15 [Lesser Included Offense] (2000); see also U.S. v. Warren (9th Cir. 1993) 984 F2d 325, 330 [jury should be informed that it may consider lesser offense if even just one juror is not satisfied that the greater offense was proven].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.1; 7.12; 8.4].

See 6th Circuit Pattern Jury Instructions - Criminal 8.07.

    The crime of _______ includes the lesser crime of _______. If (1) [any] [all] of you are not convinced beyond a reasonable doubt that the defendant is guilty of [name of the greater crime] and (2) all of you are convinced beyond a reasonable doubt that the defendant is guilty of the lesser crime of _______, you may find the defendant guilty of [name of the lesser crime]. name of the greater crime] and (2) all of you are convinced beyond a reasonable doubt that the defendant is guilty of the lesser crime of _______, you may find the defendant guilty of [name of the lesser crime].

    In order for the defendant to be found guilty of the lesser crime of _______, the government must prove each of the following elements beyond a reasonable doubt:

[9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 3.15 [Lesser Included Offense] (2000).]

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RATIONALE: If jurors are not permitted to consider the lesser offense before resolving the greater, there is a risk that some jurors who believe that the defendant is guilty of some wrongdoing may yield to the majority and convict on the greater rather then not convict on any offense.

POINTS AND AUTHORITIES: Juror consideration of lesser charges before resolving the greater promotes verdict reliability. (See People v. Toro (CA 1989) 47 C3d 966, 974-75 [254 CR 811].) As reasoned by the 9th Circuit in United States v. Jackson (9th Cir.1984) 726 F2d 1466, 1470, the failure to permit consideration of lesser charges creates a "risk ... that jurors harboring a doubt as to defendant's guilt of the greater offense but at the same time convinced that defendant had committed some offense might wrongly yield to the majority and vote to convict of the greater offense rather than not convict defendant of any offense at all." (See also State v. Robbins (MT 1998) 971 P2d 359, 366-67 [discussing Montana statute drafted to comport with Jackson]; People v. Kurtzman (CA 1988) 46 C3d 322, 329-31 [250 CR 244].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 8.4].

BRIEFING AVAILABLE: Click here. [Brief Bank # B-646].

Annotation, When Should Jury's Deliberation Proceed From Charged Offense To Lesser-Included Offense, 26 ALR5th 603.

See 6th Circuit Pattern Jury Instructions - Criminal 8.07.

    You may choose the order in which to consider each alleged crime and the evidence, if any, relating to it. You may consider and reach tentative conclusions on all charged and lesser crimes before reaching any final verdict[s].

[See CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 8.75, [Jury May Return Partial Verdict–Homicide] ¶ 3 (West, 6th Ed. 1996).]

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RATIONALE: Requiring the jury to consider the degree of a murder before first deciding whether it is murder may improperly skew the verdict toward a finding of murder.

POINTS AND AUTHORITIES: See FORECITE National™ 275.3.6 [Consideration Of Lesser Offense First When Different Degrees Are Charged].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 6.7; 8.4].

See 6th Circuit Pattern Jury Instructions - Criminal 8.07.

    If the prosecution has failed to prove any one or more of the required elements of murder beyond a reasonable doubt you must find the accused not guilty of murder.  If the prosecution has proved all the elements of murder beyond a reasonable doubt you must then attempt to decide whether or not the prosecution has proved that it is first degree murder.

[Cf. IDAHO CRIMINAL JURY INSTRUCTIONS, ICJI 704 [murder] (Idaho Law Foundation, Inc., 1995).]

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RATIONALE: Care must be taken to assure that the instructions inform the jury that the lesser charge may be considered either if the jurors cannot reach a verdict as to the greater charge or if they agree that the defendant is not guilty of the greater charge.

POINTS AND AUTHORITIES: See (UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON), UCrJI User’s Guide VII, pgs. G-19-20 (Oregon State Bar, 1998 ) ["[T]he Committee has noted that merely instructing the jurors that if they cannot agree on the charged offense they are not to consider the lesser offense, omits the circumstance when they can agree on the charged offense, i.e., not guilty." [Original emphasis.]].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 8.4].

See 6th Circuit Pattern Jury Instructions - Criminal 8.07.

See 7th Circuit Federal Jury Instructions - Criminal 2.02.

    If you find the defendant not guilty of the offense of ___________ as charged in Count _____ [or if you cannot unanimously agree that the defendant is guilty of that offense], then you must go on to consider whether the government has proved the offense of ____________.

[7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 2.02 [Lesser Included Offense] (1999).]

    You must consider the lesser crime of __________ if (1) you find the defendant not guilty of the crime of __________, or (2) if after full and careful consideration of the evidence you cannot reach a verdict as to that crime.

[See WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 155.00 [Basic Concluding Instruction] ¶ 5, sent. 2 (West, 2nd ed. 1994).]

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RATIONALE: Requiring the jury to consider the degree of a murder before first deciding whether it is murder may improperly skew the verdict toward a finding of murder.

POINTS AND AUTHORITIES: "A jury should be instructed first to decide whether the defendant is guilty or murder and, if so, then to decide whether the defendant is guilty of murder in the first degree." (Commonwealth v. Sama (MA 1991) 582 NE2d 498, 502.)

    See also generally FORECITE National™ 275.3.3 [Requirement That Jury Consider Lesser Offenses].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 6.7; 8.4].

See 6th Circuit Pattern Jury Instructions - Criminal 8.07.

    You must first attempt to decide if the prosecution proved beyond a reasonable doubt that the defendant committed a simple assault.  If, after considering all of the evidence, you have a reasonable doubt as to any element of that offense you must find the accused not guilty of all offenses.  If, however, you find that the prosecution has proved the defendant guilty of assault beyond a reasonable doubt you must then attempt to decide whether the prosecution has proved it to be an aggravated assault. 

[Cf. Dinse, Berger, & Lane, VERMONT JURY INSTRUCTIONS - CIVIL & CRIMINAL 5.19, [Instruction: Order Of Deliberations On Criminal Charges (Assault)] ¶ 2 (Lexis, 1993).]

    If you find the defendant guilty of murder you must then attempt to decide whether the prosecution has proved beyond a reasonable doubt that the defendant is guilty of first degree murder.

[Cf. IDAHO CRIMINAL JURY INSTRUCTIONS, ICJI 704 [murder] (Idaho Law Foundation, Inc., 1995).]

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RATIONALE: When a special finding enhances punishment there is no need for the jury to consider the enhancement unless the defendant has already been convicted of the substantive offense. Moreover, premature consideration of the enhancement may improperly encourage the jury to convict on the substantive charge.

POINTS AND AUTHORITIES: See FORECITE National™ 275.3.6 [Consideration Of Lesser Offense First When Different Degrees Are Charged].

See 6th Circuit Pattern Jury Instructions - Criminal 8.07.

    Do not consider the enhancement [charge] [allegation] unless you have reached a verdict on the substantive change of _________________.

    If you find that the prosecution has proved the defendant guilty beyond a reasonable doubt of the offense of _________________, you must then attempt to decide whether the prosecution has proved the enhancement allegation beyond a reasonable doubt.

    If, after considering all the evidence, any juror has a reasonable doubt as to any element of the charged offense of _______________ that juror must vote to find the defendant not guilty of that charged offense and of the enhancement [charge] [allegation].

[Cf. MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 3:06(b) [Separate Consideration Of Multiple Counts As To One Defendant] (Micpel, 1999).]