FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 13 - CHAPTER 275
Go to Volume 13 Table of Contents  -  Go to Chapter 275 Table of Contents

275.4 Lesser Included Offenses: Deliberation And Verdict: The Acquittal First Rule

    275.4.1 Constitutional Challenge To Acquittal First Rule
    275.4.2 Alternatives To Acquittal First Instruction
    275.4.3 Failure To Object To Acquittal First Instruction As Ineffective Assistance Of Counsel
    275.4.4 Acquittal First Rule: Strategy Note
    275.4.5 Acquittal First: Encouragement Of "False Unanimity" And "Coerced Verdicts"
    275.4.6 Acquittal First: Unfair Advantage To Prosecution
    275.4.7 Acquittal First: Undermining Of The Defense Theory
    275.4.8 Acquittal First: Impairment Of Judicial Efficiency
    275.4.9 Acquittal First: Undue Restriction Of Jury's Discretion
    275.4.10 Mistrial On Greater Offense Requires Same Result On Lesser Included Offense

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 13 - CHAPTER 275

PRACTICE NOTE: The acquittal first rule may implicate the due process and trial by jury clauses of the federal constitution (6th and 14th Amendments) by encouraging "false unanimity" and "coerced verdicts," by depriving the defendant of jury consideration of a defense theory and by giving an unfair advantage to the prosecution.

    See FORECITE National™ 275.4.5 [Acquittal First: Encouragement Of "False Unanimity" And "Coerced Verdicts"].

    See FORECITE National™ 275.4.6 [Acquittal First: Unfair Advantage To Prosecution].

    See FORECITE National™ 275.4.7 [Acquittal First: Undermining Of The Defense Theory].

    See FORECITE National™ 275.4.8 [Acquittal First: Impairment Of Judicial Efficiency].

    See FORECITE National™ 275.4.9 [Acquittal First: Undue Restriction Of Jury's Discretion].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 13 - CHAPTER 275

PRACTICE NOTE: Some states have adopted a variation of the acquittal first rule, holding the jury should be instructed it may consider lesser included offenses before acquitting on the greater charge, but must unanimously acquit on the greater charge before returning a verdict on the lesser offense. (See Whiteaker v. State (AK 1991) 808 P2d 270, 271, 274; Dresnek v. State (AK 1985) 697 P2d 1059, 1060-1064; People v. Berryman (CA 1993) 6 C4th 1048, 1072-1076 [25 CR2d 867]; People v. Kurtzman (CA 1988) 46 C3d 322, 328-36 [250 CR 244].)

    A few jurisdictions hold it is error to give an acquittal first instruction, and require the unable to agree or reasonable efforts instruction. (State v. Ferreira (HI 1990) 791 P2d 407, 408-409; People v. Handley (MI 1982) 329 NW2d 710, 712 [ruling applied prospectively only]; State v. Thomas (OH 1988) 533 NE2d 286, 292-293; State v. Allen (OR 1986) 717 P2d 1178, 1179-80.)

    Other jurisdictions have adopted an "optional approach" formulated by the United States Court of Appeals for the Second Circuit in United States v. Tsanas (2nd Cir. 1978) 572 F2d 340. The court in Tsanas addressed at length the policy considerations implicated in the acquittal first and the unable to agree instructions, and concluded neither instruction is wrong as a matter of law. (Tsanas, 572 F2d at 346.) However, the Tsanas court further concluded the defendant should have the option to elect which instruction he prefers, and the court is bound to give the requested instruction. If the defendant makes no request, the court may give either. A few federal circuits and other jurisdictions have adopted the Tsanas rule. (See Catches v. United States (8th Cir.1978) 582 F2d 453, 459; United States v. Jackson (9th Cir. 1984) 726 F2d 1466, 1469; Jones v. United States (DC 1993) 620 A2d 249, 252; State v. Powell (VT 1992) 608 A2d 45, 47.)

See generally, FORECITE National™ 305.1.6 [Acquittal First].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 13 - CHAPTER 275

PRACTICE NOTE: Jack v. Maass (OR 1989) 776 P2d 593 held that defense counsel's failure to object to an acquittal first instruction was ineffective assistance of counsel. The instruction was indistinguishable from the one found to be improper in Tarwater v. Cupp (OR 1988) 748 P2d 125, 126. The court concluded that:

    "An acquittal first instruction requires the jury to acquit on the most serious crime with which a defendant is charged before considering whether he is guilty of a lesser included offense. Thus, it does not permit a jury that is unable to reach a decision on the more serious charge to consider lesser included offenses. Because that gives a juror voting in the minority who is unsuccessful in changing the majority's opinion the choice of changing his own vote or creating a hung jury, the instruction is improperly coercive."

(Jack v. Maass, 776 P2d at 594, fn 1.)

CAVEAT: Given the tactical reasons why the defense may want an acquittal first instruction, it will be necessary to establish that trial counsel was not relying on such a tactic in failing to object.

See generally, FORECITE National™ 305.1.6 [Acquittal First].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 13 - CHAPTER 275

RATIONALE: There is a basis for constitutionally challenging the acquittal first rule which requires the jury to acquit of the greater offense before considering the lesser. (See generally FORECITE National™ 275.4 [Lesser Included Offenses: Deliberation And Verdict: The Acquittal First Rule].) However, if such a challenge is rejected, counsel may wish to argue that it is the defendant's option to either have the jury instructed on the acquittal first procedure or on a procedure that allows consideration of the lesser offense after the jury has made reasonable efforts to reach agreement on the greater.

POINTS AND AUTHORITIES: Many jurisdictions require the jury unanimously to acquit the defendant on the charged offense before being allowed to deliberate on any lesser included offense. (See e.g., O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 20.05 [Lesser Included Offense - Elements And Form Of Verdict] (West, 5th ed. 2000); U.S. v. Hanson (8th Cir. 1980) 618 F2d 1261, 1265-66; Lindsey v. State (AL 1983) 456 So2d 383, 387-88; Whiteaker v. State (AK 1991) 808 P2d 270, 274; State v. Hernandez (AZ 1990) 805 P2d 1057, 1061-62; People v. Kurtzman (CA 1988) 758 P2d 572, 578-80; People v. Padilla (CO 1981) 638 P2d 15, 17-18; State v. Sawyer (CT 1993) 630 A2d 1064, 1071; Middlebrooks v. State (GA 1980) 274 SE2d 843; State v. Van Dyken (MT 1990) 791 P2d 1350, 1361; People v. Boettcher (NY 1987) 505 NE2d 594, 597-98; State v. Wilkins (NC 1977) 238 SE2d 659, 665; State v. Daulton (ND 1994) 518 NW2d 719, 722-23; Commonwealth v. Hart (PA 1989) 565 A2d 1212, 1216-1220; State v. McNeal (WI 1980) 288 NW2d 874, 876; see also Jones v. U.S. (DC 1993) 620 A2d 249, 251-52 [absent objection court may give acquittal first instruction to deadlocked jury].)

    It has been argued that the acquittal instruction precludes the possibility of jury compromise. (See e.g., People v. Boettcher (NY 1987) 505 NE2d 594, 596-97.) Nevertheless, the acquittal first rule has been thoroughly criticized and may be subject to constitutional challenge. (See People v. Helliger (NY 1998) 691 NYS2d 858, 863-68 [reexamining Boettcher]; see also Note, Improving Jury Deliberations: A Reconsideration of Lesser Included Offense Instructions, 16 U Mich JLRef 561, 566-8 (1983); FORECITE National™ 275.4.1 [Constitutional Challenge To Acquittal First Rule].)

    Another approach is that lesser included offenses may be considered once the jury has a reasonable doubt about guilt on the charged offense. (See e.g., People v. McGregor (CO 1981) 635 P2d 912, 914 ["If you are not satisfied beyond a reasonable doubt that the defendant is guilty of an offense charged, or you entertain a reasonable doubt of the defendant's guilt, you may consider [lesser included offenses"]; State v. Yamashira (HI 1991) 817 P2d 123, 130; State v. Korbel (KS 1982) 647 P2d 1301, 1305; State v. Thomas (OH 1988) 533 NE2d 286, 292-93; Tarwater v. Cupp (OR 1988) 748 P2d 125, 128; State v. Labanowski (WA 1991) 816 P2d 26, 35-37.)

    However, this approach is coercive in the same way as the acquittal instruction. (See FORECITE National™ 275.4.5 [Acquittal First: Encouragement Of "False Unanimity" And "Coerced Verdicts"].)

    Other jurisdictions use a "disagreement instruction" such as that approved in People v. Mays (MI 1980) 288 NW2d 207, 208, and State v. Ogden (OR 1978) 580 P2d 1049, 1052-55, in which the jury is told to consider the charged offense first but, unless they agree to convict, they may consider any lesser included offense.  (See also see also Note, Improving Jury Deliberations: A Reconsideration of Lesser Included Offense Instructions, 16 U Mich JLRef at 568-74.)

    However, the better approach is to give whichever option the defendant elects. (See e.g., 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 8.07 [Lesser Offense, Order Of Deliberations, Verdict Form] ¶3 comment(1991); 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 3.15 Comment, [Lesser Included Offense] ¶3 (2000); 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 2.02 [Lesser Included Offense] ¶ 7 Comment (1999).)

    Giving the defendant the right to elect the option to be given is supported by U.S. v. Tsanas (2nd Cir. 1978) 572 F2d 340, 346. In his opinion for the court in Tsanas, Judge Friendly explained that the two available options had advantages and disadvantages for both the prosecution and the defense. With regard to the option that requires the jury to unanimously find the defendant not guilty of the greater offense before moving on to consider a lesser offense, he first described its advantages:

    "[This] instruction ... has the merit, from the Government's standpoint, of tending to avoid the danger that the jury will not adequately discharge its duties with respect to the greater offense, and instead will move too quickly to the lesser one. From the defendant's standpoint, it may prevent any conviction at all; a jury unable either to convict or acquit on the greater charge will not be able to reach a lesser charge on which it might have been able to agree. It might be thought to have the further advantage of producing a clear acquittal on the greater charge which would plainly forbid reprosecution on that charge after a successful appeal from the conviction on the lesser charge. But, here again, such a reprosecution apparently is barred by the double jeopardy clause regardless of the form of instruction. [Citations.]"

(Tsanas, 572 F2d at 346.)

    He then went on to describe the disadvantages of such an instruction.

    "But it entails disadvantages to both sides as well: By insisting on unanimity with respect to acquittal on the greater charge before the jury can move to the lesser, it may prevent the Government from obtaining a conviction on the lesser charge that would otherwise have been forthcoming and thus require the expense of a retrial. It also presents dangers to the defendant. If the jury is heavily for conviction on the greater offense, dissenters favoring the lesser may throw in the sponge rather than cause a mistrial that would leave the defendant with no conviction at all, although the jury might have reached sincere and unanimous agreement with respect to the lesser charge."

(Id. at 346.)

    With regard to the option that allows the jury to move on to consider a lesser offense if the jury is unable to unanimously agree on a verdict on the greater offense, Judge Friendly said:

    "An instruction permitting the jury to move on to the lesser offense if after all reasonable efforts it is unable to reach a verdict on the greater likewise has advantages and disadvantages to both sides -- the mirror images of those associated with the [option discussed above]. It facilitates the Government's chances of getting a conviction for something, although at the risk of not getting the one that it prefers. And it relieves the defendant of being convicted on the greater charge just because the jury wished to avoid a mistrial, but at the risk of a conviction on the lesser charge which might not have occurred if the jury, by being unable to agree to acquit on the greater, had never been able to reach the lesser."

(Id. at 346.)

    He then concluded as follows:

    "With the opposing considerations thus balanced, we cannot say that either form of instruction is wrong as matter of a law. The court may give the one that it prefers if the defendant expresses no choice. If he does, should give the form of instruction which the defendant seasonably elects. It is his liberty that is at stake, and the worst that can happen to the Government under the less rigorous instruction is his readier conviction for a lesser rather than a greater crime. As was said in Bell v. United States (1955) 349 US 81, 83 [75 SCt 620; 99 LEd 905], albeit in a different context:

    It may fairly be said to be a presupposition of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment."

(Id. at 346; see also Catches v. U.S. (8th Cir. 1978) 582 F2d 453, 459 [referring to Judge Friendly’s opinion in Tsanas as a "well-reasoned rule"]; but see State v. Horsley (OR 2000) 8 P3d 1021 [discussing advantages and disadvantages of acquittal first instruction but concluding that neither one is mandated or prohibited as a constitutional matter].)

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

CAVEAT: It may be argued that both of the above options abridge the fairness and reliability of the verdict. (See FORECITE National™ 300.29.1 [Federal Constitutional Rights Implicated By Unreliable Trial Or Conviction].) This is so because any restriction on the jury’s consideration of a lesser offense may impact its ability to fairly consider the availability of that option.

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

See also generally, FORECITE National™ 305.1.6 [Acquittal First].

    As I explained to you earlier, the charge of _______ includes the lesser charge of _______.

    If you find the defendant guilty of _______ [or if after making every reasonable effort to reach a unanimous verdict on that charge, you find that you cannot agree], then you must go on to consider whether the government has proved the lesser charge of _______.

[6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 8.07 [Lesser Offense, Order Of Deliberations, Verdict Form] ¶¶ 1-2 (1991).]

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 13 - CHAPTER 275

PRACTICE NOTE: "Members of the jury who have substantial doubts about an element of the greater offense, but believe the defendant guilty of the lesser offense, may very well choose to vote for conviction of the greater rather than to hold out until a mistrial is declared, leaving the defendant without a conviction of any charge." (Jones v. U.S. (DC 1988) 544 A2d 1250, 1253; see also U.S. v. Tsanas (2nd Cir. 1978) 572 F2d 340, 346 ["if the jury is heavily for conviction on the greater offense, dissenters favoring the lesser may throw in the sponge rather than cause a mistrial that would leave the defendant with no conviction at all, although the jury might have reached sincere and unanimous agreement with respect to the lesser charge"]; Cantrell v. State (GA 1996) 469 SE2d 660; State v. Ferreira (HI 1990) 791 P2d 407 [jury need not unanimously reject the greater charge in order to consider the lesser included offense, and an instruction requiring this procedure is reversible error]; State v. Martin (OR 1983) 668 P2d 479; (UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON), UCrJI 1009 [Lesser Included Offense Order Of Deliberation] (Oregon State Bar, 1998).)

    In U.S. v. Tsanas 572 F2d at 346, Judge Friendly recognized the reality that an acquittal first instruction may result in "the defendant...being convicted on the greater charge just because the jury wishes to avoid a mistrial...." This is so because, "[i]f the jury is heavily for conviction on the greater offense, dissenters favoring the lesser may throw in the sponge rather than cause a mistrial that would leave the defendant with no conviction at all, although the jury might have reached sincere and unanimous agreement with respect to the lesser charge." (Id. at 346.) This view was also expressed by the 9th Circuit in U.S. v. Jackson (9th Cir. 1984) 726 F2d 1466, 1469-70 which explained that if the jury must unanimously agree on a not guilty verdict on the greater offense before moving on to a lesser, there is a risk that jurors who have a doubt that the defendant is guilty of the greater offense, but who are convinced the defendant is guilty of some offense, will likely resolve their doubts in favor of convicting the defendant of the greater offense, rather than holding out and not convicting the defendant of anything at all. (6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 8.07 [Lesser Offense, Order Of Deliberations, Verdict Form] commentary (1991) [paraphrasing Jackson]; see also Catches v. U.S. (8th Cir. 1978) 582 F2d 453, 459 [referring to Judge Friendly’s opinion in Tsanas as a "well-reasoned rule"].)

    Thus, the acquittal first rule was criticized and abandoned by the Arizona Supreme Court in State v. LeBlanc (AZ 1996) 924 P2d 441 because it encourages "false unanimity" and "coerced verdicts." (Id. at 442.) The court concluded that "requiring a jury to do no more than use reasonable efforts to reach a verdict on the charged offense is the better practice and more fully serves the interest of justice and the parties." Hence, the court concluded that the jury should be instructed that it may deliberate on and return a lesser offense "if it either (1) finds the defendant not guilty on the greater charge, or (2) after reasonable efforts cannot agree whether to acquit or convict on that charge." (LeBlanc, 924 P2d at 442.) Although it held that the acquittal first doctrine did not violate the state or federal constitution (Id. at 443-44), the court made clear its view that the instruction improperly encouraged "false unanimity" and "coerced verdicts."

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 13 - CHAPTER 275

PRACTICE NOTE: As the Georgia Supreme Court recognized in Cantrell, the acquittal first instruction "gives the prosecution an unfair advantage."  (Cantrell v. State (GA 1996) 469 SE2d 660, 662.) This is so because the acquittal first rule is based on "the desire to avoid lending encouragement to jurors who are irrationally holding out for a lesser charge" while at the same time the rule "lends support to jurors who are irrationally holding out for a greater charge." (People v. Helliger (NY 1998) 691 NYS2d 858, 865.)

    As further explained by the Helliger court:

    "Rationality does not necessarily favor one side or the other when there is disagreement. When a court submits a greater and a lesser a legal determination has been made that either position could be rationally based. A court may only submit a lesser offense when "there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser but did not commit the greater." [Citation.] There is no legal presumption that one position is more rational than the other. In cases where lenity is not the primary or only evil to be avoided, it may be wise for Court to read the statute to the jury, as the Legislature has directed, and advise them that they may convict upon any of the counts submitted..."

(Helliger, 695 NYS2d at 865; see also Jones v. U.S. (DC 1988) 544 A2d 1250, 1253-54 [acquittal first instruction which requires jury to take affirmative step by rendering acquittal of greater offense before it may consider lesser offense improperly interferes with jury's deliberations by encouraging jury to favor conviction of greater offense].)

    Accordingly, the acquittal first instruction violates the settled principle that "[t]here should be absolute impartiality as between the People and the defendant in the matter of instructions." (People v. Moore (CA 1954) 43 C2d 517, 526-27 [275 P2d 485]; Reagan v. U.S. (1895) 157 US 301, 310 [15 SCt 610; 39 LEd 709].) Furthermore, when the prosecution is given an unfair advantage over the defendant the due process clause of the federal constitution is implicated. (See Wardius v. Oregon (1973) 412 US 470, 473-74 [93 SCt 2208; 37 LEd2d 82]; see also Izazaga v. Superior Court (CA 1991) 54 C3d 356, 372-77 [285 CR 231].)

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 13 - CHAPTER 275

PRACTICE NOTE: The acquittal first rule may also undermine the defendant's right to jury consideration of his or her theory of the case. If, for example, the defendant requests instruction on a lesser offense pursuant to a defense theory, the due process principles require that the instruction be given. (See FORECITE National™  250.5.3 [Defendant’s Burden As To Affirmative Defense Does Not Implicate Privilege Against Self Incrimination].) However, the acquittal first instruction, by pressuring the jury into resolving the greater charge one way or the other undermines the defense lesser offense theory. In fact it has been observed that "[t]he acquittal first instruction given in this case deprived the defendant of having the jury consider manslaughter in the second degree just as effectively as if the court had declined to instruct on that charge. Because the trial court required that the jury overcome a preliminary hurdle--a unanimous acquittal on manslaughter in the first degree before it could consider the lesser included offense of manslaughter in the second degree--it deprived the defendant of his right to have the jury consider this lesser included offense." (State v. Sawyer (CT 1993) 630 A2d 1064, 1081, dissenting opn.)

    Hence, by depriving the defendant of the right to consideration of his or her defense the acquittal first instruction may violate the federal constitution. (See FORECITE National™ Chapter 250 [Defenses And Defense Theories: General Issues].)  For another comprehensive criticism of the acquittal first rule see Sawyer, dissenting opinion.

 VOLUME 13 - CHAPTER 275

PRACTICE NOTE: The LeBlanc court [State v. LeBlanc (AZ 1996) 924 P2d 441] concluded that the "reasonable efforts" instruction furthers both the prosecution's interest in the full and fair adjudication of the charged offenses and the public's interest in the effective use of jury resources. "The 'reasonable efforts' approach diminishes the likelihood of a hung jury, and the significant costs of retrial, by providing options that enable the fact finder to better gauge the fit between the state's proof and the offenses being considered." (Id. at 442-43 [citing to State v. Labanowski (WA 1991) 816 P2d 26, 34].)

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 13 - CHAPTER 275

   275.4.9    Acquittal First: Undue Restriction Of Jury's Discretion

PRACTICE NOTE: State v. LeBlanc (Ariz. 1996) 924 P2d 441 criticized the acquittal first rule as overly restrictive of the jury's discretion. "For too long, we have treated jurors like untrustworthy children instead of responsible adults, insulting their individual and collective intelligence by attempting to micromanage their discussions and deliberations. [The acquittal first instruction] is an example of this unwarranted intrusion and, as noted previously, is fraught with dangers of its own. As with other recently abandoned traditions surrounding juries, there is nothing particularly sacred about the acquittal first procedure. What we do today is neither radical nor novel ..." (LeBlanc, 924 P2d at 443; but see People v. Fields (CA 1996) 13 C4th 289, 310-11 [52 CR2d 282] [jury may consider lesser charge but must acquit on greater before returning verdict on lesser].)

CAVEAT: In deciding whether to make this argument, counsel should consider the relative merits of the acquittal first instruction. The acquittal first instruction offers advantages to some defendants. (See generally U.S. v. Tsanas (2nd Cir. 1978) 572 F2d 340, 346 [discussing advantages and disadvantages of acquittal first vs. nonacquittal first and concluding choice should be with defendant].) First, abandoning the acquittal first rule would seem to encourage jury compromise as a means of avoiding hard decisions or avoiding a deadlock. (Tsanas, 572 F2d at 346.) Second, in many cases it is entirely possible that in the process of hard deliberation to the end over the charged offense, the jury may conclude that not only does the evidence not support the charged offense, but by the same conclusion reached in those deliberations, it also doesn't support the lesser. Third, while some defendants like a default to a lesser-included offense, some defendants are truly seeking acquittal and don't want the jury to have the lesser offense option. (See e.g., People v. Barton (CA 1995) 12 C4th 186, 196-98 [47 CR2d 569].)

NOTE: Tsanas did not rule that the acquittal first instruction was improper; rather, it analyzed the issue in terms of giving the defendant the choice of whether to have an acquittal first instruction or an instruction which permits consideration of the lesser charge after making a reasonable effort to reach a unanimous verdict on the greater charge. (See FORECITE National™ 275.3.1 [Order of Deliberation May Influence Verdict]; see also FORECITE National™ 275.4.4 [Acquittal First Rule: Strategy Note].)

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

Smeltzer, Recognizing the Jury’s Province to Consider the Lesser Included Offense (State v. Ogden), 58 Ore.L.Rev. 572 (1980) [author argues in favor of minority viewpoint in Ogden [State v. Ogden (OR 1978) 580 P2d 1049] that manner of deliberation and selection of appropriate offense is wholly within the jury’s province].

Atlas, Unanimous Acquittal Instructions: A Rational Approach to Instructing Jurors on Lesser Included Offenses, 16 Fordham Urban L.J. 331, Spring 1988.

See also generally, FORECITE National™ 305.1.6 [Acquittal First].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 13 - CHAPTER 275

    275.4.10    Mistrial On Greater Offense Requires Same Result On Lesser Included Offense

    See FORECITE National™ 275.1.8 [Mistrial On Greater Offense Requires Same Result On Lesser Included Offense].