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287.1 Special Verdicts

    287.1.1 Special Verdicts: General Rule
    287.1.2 Coercive Impact Of Special Verdicts
    287.1.3 Exceptions To General Rule Against Special Verdicts
    287.1.4 Timing Of Request For Special Verdicts
    287.1.5 Special Verdict Language: Proposed Form
    287.1.6 Special Verdicts: Role Of Special Verdict In Evaluating Error On Appeal As To One Of Multiple Theories
    287.1.7 Special Verdicts To Meet Defendant's Burden As To Erroneous Instruction On Factually Insufficient Theory
    287.1.8 Special Verdicts Regarding Predicate Act: Submission After Jury Returns General Verdict To Convict
    287.1.9 Special Verdict Forms: Multiple Acts
    287.1.10 Special Verdict Forms: Multiple Offenses
    287.1.11 Special Verdict Forms As Substitute For Jury Unanimity Instruction
    287.1.12 Special Jury Forms As To Duplicitous Theories (Alternative Means Of Commission
    287.1.13 Special Verdict As Improper Directed Verdict In Violation Of Due Process
    287.1.14 Special Verdict As Improper Extraneous Influence On The Jury

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PRACTICE NOTE: Although there is no per se prohibition, "[a]s a rule, special verdicts in criminal trials are not favored." (U.S. v. O’Looney (9th Cir. 1976) 544 F2d 385, 392; see also U.S. v. Reed (9th Cir. 1998) 147 F3d 1178, 1180; People v. McIntyre (CA 1990) 222 CA3d 229, 233 [271 CR 467] [trial court "may not require a jury to return a special verdict or finding of fact. The decision to bring in a special verdict or finding of fact is solely within the jury's discretion"]; State v. Osburn (KS 1973) 505 P2d 742, 749 [special verdicts may not be submitted to the jury in a criminal prosecution].)

What Role Do Special Verdicts Have in Criminal Courtrooms?, BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) 65.

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PRACTICE NOTE: In U.S. v. O’Looney (9th Cir. 1976) 544 F2d 385, 392, the court summarized the concerns with special verdicts as follows: "To ask the jury special questions might be said to infringe on its powers to deliberate free from legal fetters; on its power to arrive at a general verdict without having to support it by reasons or by a report of its deliberations; and on its power to follow or not to follow the instructions of the court. Moreover, any abridgement or modification of this institution would partly restrict its historic function, that of tempering rules of law by common sense brought to bear upon the facts of a specific case." (O’Looney 544 F2d at 392.)

    "[B]y a progression of questions each of which seems to require an answer unfavorable to the defendant, a reluctant juror may be led to vote for a conviction which, in the large, he would have resisted." (U.S. v. Spock (1st Cir. 1969) 416 F2d 165, 182; see also U.S. v. Frezzo Bros., Inc. (3rd Cir. 1979) 602 F2d 1123, 1129.) "...[S]pecial verdicts tend to infringe upon certain historic functions of the jury -- to temper the law with common sense, to decide whether to follow instructions, and to reach a general verdict without enunciating its reasons." (Cissell, Federal Criminal Trials (Lexis, 5th ed. 1999) § 12-6(d).) On the other hand, "use of special findings was a proper safeguard of defendant's right of due process, insuring that the jury deliberating on a conspiracy charge agree unanimously on the overt act or acts that are the basis of his culpability" (People v. Jackson (CA 1996) 13 C4th 1164, 1223 [56 CR2d 49]; People v. Webster (CA 1991) 54 C3d 411, 447 [285 CR 31] [special findings may accompany a general criminal verdict, even if not authorized by statute, "so long as they do not interfere with the jury's deliberative process"]; see also People v. Davis (CA 1995) 10 C4th 463, 511-12 [41 CR2d 826]; People v. Mickle (CA 1991) 54 C3d 140, 178 fn 21 [284 CR 511] [verdict forms should not allow jurors leeway in the wording of special findings]; People v. Farmer (CA 1989) 47 C3d 888, 920 [254 CR 508].)

See generally, FORECITE National™ 305.19.6 [Special Verdicts].

See generally 8th Circuit Model Jury Instructions - Criminal 11.03.

See also e.g. 8th Circuit Model Jury Instructions - 6.21.853.

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RATIONALE: In some circumstances special verdicts or findings may be appropriate.

POINTS AND AUTHORITIES: Exceptions to the general rule disfavoring special verdicts in criminal cases have been expanded and approved in an increasing number of circumstances. (See Sand, et al., Modern Federal Jury Instructions (Lexis, 2001), Inst. 9-9, p. 9-26.)  Ultimately these cases make it clear that use of a special verdict form is a matter of the trial court’s discretion to be determined on the facts of each case. (U.S. v. Reed (9th Cir. 1998) 147 F3d 1178, 1180; see also People v. Jackson (CA 1996) 13 C4th 1164, 1226-27 [56 CR2d 49].) Specifically, a special verdict form which requires the jury to determine the appearance of any of a series of acts, each of which is sufficient to constitute the indicted crime, does not implicate the traditional concerns regarding special verdicts. (Ibid.) For example, a special verdict form which requires the jury to determine the existence of any of a series of acts, each of which is sufficient to constitute the indicted crime, does not implicate the traditional concerns regarding special verdicts. (Ibid; see also People v. Ribowsky (NY 1991) 568 NE2d 1197, 1201.)

    It has also been suggested that cases with especially complex facts and instructions may call for a special jury verdict or interrogatory. (See e.g., Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS (B)(1)(b) [Trial Presentation] Introduction (South Carolina CLE, 1994) ["Where complex issues are involved, defense counsel may want to consider the use of a special verdict form or of interrogatories. Where useful, it appears that the trial judge has the discretion to use either approach"].) Special verdicts "might also be used to determine certain facts pertinent to sentencing, e.g., amount of drugs. Although generally "frowned upon," jury interrogatories have been approved where they perform a "particularized fact-finding function" and have "relevance to sentencing." (U.S. v. Pforzheimer (2nd Cir. 1987) 826 F2d 200, 205.) For example, interrogatories may be used to establish predicate acts in RICO prosecutions, (U.S. v. Ruggiero (2nd Cir. 1984) 726 F2d 913, 926 (Newman, J., concurring)), an amount of drugs relevant to punishment (U.S. v. Romo (7th Cir. 1990) 914 F2d 889, 895), or the object of a conspiracy (Griffin v. U.S. (1991) 502 US 46, 61 [112 SCt 466; 116 LEd2d 371] (Blackmun, J., concurring).)

    Also, a special verdict form which requires the jury to identify the theory of 1st degree murder may not be an improper special verdict form because it does not present only findings of fact. It is not error to submit such a form to the jury. (People v. Neely (CA 1993) 6 C4th 877, 897-98 [26 CR2d 189].)

What Role Do Special Verdicts Have in Criminal Courtrooms?, BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) 65.

See also generally, FORECITE National™ 305.19.6 [Special Verdicts].

See generally 8th Circuit Model Jury Instructions - Criminal 11.03.

See also e.g. 8th Circuit Model Jury Instructions - 6.21.853.

SAMPLE INSTRUCTION:

    In addition to rendering a verdict on whether or not the defendant has been proven guilty, you also should answer the questions in the special verdict form. You should answer the questions "yes" or "no" provided all of you unanimously agree on the answer.

[Source: FORECITE National™.]

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PRACTICE NOTE: Of a special verdict is desired it should be requested prior to the conclusion of the deliberations. For example, People v. Arias (CA 1996) 13 C4th 92, 157 [51 CR2d 770] held that the trial court may properly refuse a request to poll the jury regarding any special finding of fact or element of the verdict. The court suggested that if the defendant had sought to protect the record he could have requested a special finding in advance of the general verdict. (Arias, 13 C4th at 58.)

   If a special verdict is used, the jury should not be given leeway in the wording of the verdict. (See e.g., People v. Mickle (CA 1991) 54 C3d 140, 178 fn 21 [284 CR 511].)

See generally, FORECITE National™ 305.19.6 [Special Verdicts].

See generally 8th Circuit Model Jury Instructions - Criminal 11.03.

See also e.g. 8th Circuit Model Jury Instructions - 6.21.853.

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MOTION & INSTRUCTION AVAILABLE: For a form motion and proposed special verdict form, click here. [Instruction Bank # I-859].

    Another sample form is the following:

    We, the jury, find defendant (name) __________________ of the use of a firearm during guilty/not guilty and in relation to a crime of violence [as charged in Count _____ of the indictment] [under Instruction No. _____ ]. If you find defendant "guilty," you must answer the following:

    Which of the following firearms do you find were used by defendant?

    _____ A 9mm semi-automatic pistol.

    _____ An M-16 fully automatic rifle.

    _____ A short-barreled 12-gauge shotgun.

    (Check each firearm which the jury unanimously agrees defendant used.)

____________________________________
Foreperson

____________________
(Date)

[8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 11.03 [Sample Special Verdict Form (Interrogatories To Follow Finding Of Guilt)] (2000).]

See generally, FORECITE National™ 305.19.6 [Special Verdicts].

See generally 8th Circuit Model Jury Instructions - Criminal 11.03.

See also e.g. 8th Circuit Model Jury Instructions - 6.21.853.

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    287.1.6    Special Verdicts: Role Of Special Verdict In Evaluating Error On Appeal As To One Of Multiple Theories

PRACTICE NOTE: Notwithstanding the lack of a constitutional requirement for unanimity as to alternative theories (see FORECITE National™ 273.7.1 [Jury Unanimity: Multiple Theories (Alternative Means Of Commission)]), the benefits of requiring unanimity have been recognized. For example, in United States v. Garcia, 907 F2d 380 (2nd Cir. 1990), the Second Circuit suggested that the case of special interrogatories to identify which theory of extortion was adopted by the jury would have obviated a new trial where the evidence was deemed insufficient to support one of the two theories submitted to the jury. In Sheppard v. Rees, 909 F2d 1234, 1237-38 (9th Cir. 1990), the Ninth Circuit reversed a conviction writing "[w]here two theories of culpability are submitted to the jury, one correct and the other incorrect, it is impossible to tell which theory of culpability the jury followed in reaching a general verdict."  The Washington Supreme Court continues to "emphasize the desirability of having juror unanimity on all aspects of a conviction....Requiring the jury to be unanimous as to particular alternative means eliminates the possibility of a conviction being overturned should one of those alternatives not be supported by substantial evidence." (State v. Fortune (WA 1996) 909 P2d 930, 935 [citations omitted]; see also State v. Savaria (WA 1996) 919 P2d 1263, 1267 [intimidating witness conviction reversed due to insufficient evidence of one alternative means charged and lack of special finding as to which alternative was found]; State v. Ortega-Martinez (WA 1994) 881 P2d 231, 239, n 2 [The Washington Supreme Court "strongly urge[s] counsel and trial courts to heed our notice that an instruction regarding juror unanimity on the alternative method is preferable"].) Similarly, in Griffin v. U.S. (1991) 502 US 46, 58 [112 SCt 466; 116 LEd2d 371] the United States Supreme Court "gave impetus to the desireability of eliminating uncertainty by identifying on which ground(s) the conviction was rendered." (McSorley, Portable Guide to Federal Conspiracy Law - Developing Strategies for Criminal and Civil Cases (ABA, 2003) Chapter 4, § C(2).) In Griffin, the high court stated: "If the evidence is insufficient to support an alternative legal theory of liability, it would generally be preferable for the court to give an instruction removing that theory from the jury's consideration." (Griffin, 502 US at 60.)

    "The lesson is clear: special verdicts avoid costly and needless postverdict hearings. Defense counsel should request, prosecutors should not oppose, and trial judges should follow the Eleventh Circuits admonition in Dennis [U.S. v. Dennis (11th Cir. 1986) 786 F2d 1029, 2039], to use special verdict forms for multiple object conspiracy counts." (McSorley, Portable Guide to Federal Conspiracy Law - Developing Strategies for Criminal and Civil Cases (ABA, 2003) Chapter 4, § C(2) [emphasis added].)

    See also FORECITE National™ 287.1.7 [Special Verdicts To Meet Defendant's Burden As To Erroneous Instruction On Factually Insufficient Theory].

    See also FORECITE National™ 296.2.4.2 [Special Procedures In Light Of Rule That Defendant Must Show Jury Relied On Improper Factual Theory].

CAVEAT: Special verdicts may make it easier to convict. (See FORECITE National™ 287.1.2 [Coercive Impact Of Special Verdicts].)

See generally, FORECITE National™ 305.19.6 [Special Verdicts].

See generally 8th Circuit Model Jury Instructions - Criminal 11.03.

See also e.g. 8th Circuit Model Jury Instructions - 6.21.853.

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PRACTICE NOTE: In some jurisdictions, to obtain relief on appeal, the defendant is required to establish that the jury relied on an erroneous instruction on a factually insufficient theory. (See e.g., Griffin v. U.S. (1991) 502 US 46, 59-60 [112 SCt 466; 116 LEd2d 371]; People v. Guiton (CA 1993) 4 C4th 1116, 1121-22 [17 CR2d 365].) In such jurisdictions, a special verdict form may be the only way for the defendant to meet such an appellate burden. (See e.g., People v. Washington DEPUBLISHED (CA 1988) 206 CA3d 1409, 1425 [254 CR 467] [reversal required because special findings established that the jury relied upon the erroneous theory]; see also Guam v. Marquez (9th Cir. 1992) 963 F2d 1311, 1315 ["It would be unjust for this court to deny [defendant] a new trial because the trial court adopted a procedure and makes it impossible to determine if its error was prejudicial"].) Hence, even though the special verdict could conclusively prove the error harmless by showing that the jury did not rely on the erroneous theory, it could also be worth the risk since the error may well be held harmless anyway. (See U.S. v. Aguilar (9th Cir. 1989) 883 F2d 662, 690-91 [it is counsel's duty to request a special verdict in order to record the jury's thinking for purposes of appeal; failure to make such request to the trial court waives any error, except plain error, premised on lack of a special verdict].)

    See also FORECITE National™ 287.1.6 [Special Verdicts: Role Of Special Verdict In Evaluating Error On Appeal As To One Of Multiple Theories].

See generally, FORECITE National™ 305.19.6 [Special Verdicts].

See generally 8th Circuit Model Jury Instructions - Criminal 11.03.

See also e.g. 8th Circuit Model Jury Instructions - 6.21.853.

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PRACTICE NOTE: Because of the potential coercive impact of special verdicts or interrogatories in may be useful to submit the special verdict only after the jury has first returned a general verdict to convict. For example, it has been held that when special interrogatories regarding RICO predicates are submitted to jury, court is permitted to give instruction to jury to answer interrogatories only after it votes to convict, thereby alleviating danger of prejudice to defendant. (U.S. v. Console (3rd Cir. 1993) 13 F3d 641, 663.)

See generally, FORECITE National™ 305.19.6 [Special Verdicts].

See generally 8th Circuit Model Jury Instructions - Criminal 11.03.

See also e.g. 8th Circuit Model Jury Instructions - 6.21.853.

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    287.1.9    Special Verdict Forms: Multiple Acts

PRACTICE NOTE: Cases turning on use or nonuse of special verdict forms eliciting specific unanimity as to one of multiple charged acts include: State v. Marcum (WI 1992) 480 NW2d 545, 553 [conviction reversed; verdict failed to specify which of multiple charged acts that were the basis for each offense; failure to use verdict forms adequately distinguishing each separately charged crime abridged defendant's 5th and 6th Amendment rights to jury unanimity]; People v. Jackson (CA 1996) 13 C4th 1164, 1223 [56 CR2d 49] ["...use of special findings was a proper safeguard of defendant's right of due process, insuring that the jury deliberating on a conspiracy charge agree unanimously on the overt act or acts that are the basis of his culpability"].)

See generally, FORECITE National™ 305.19.6 [Special Verdicts].

See generally 8th Circuit Model Jury Instructions - Criminal 11.03.

See also e.g. 8th Circuit Model Jury Instructions - 6.21.853.

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PRACTICE NOTE: Special verdict forms have been used to differentiate between multiple charged offenses: When the charges and instructions contemplate alternative felonies, separate verdict forms should be given in order to determine which felony was committed. (OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 4-93, comments [Murder In The Second Degree By Felony Murder- In The Commission Of Defined] (Oklahoma Center for Criminal Justice, 2nd ed. 1996); see also State v. Tang (WA 1995) 893 P2d 646; State v. May (WA 1993) 843 P2d 1102, n 6.)

See generally, FORECITE National™ 305.19.6 [Special Verdicts].

See generally 8th Circuit Model Jury Instructions - Criminal 11.03.

See also e.g. 8th Circuit Model Jury Instructions - 6.21.853.

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    See FORECITE National™ 273.1.2 [Motion For Unanimity Instruction And Special Findings].

    See FORECITE National™ 273.1.4 [Juror Unanimity: Harmless Error Analysis Where Jury Findings Were Functional Equivalent To Unanimity].

See generally, FORECITE National™ 305.19.6 [Special Verdicts].

See generally 8th Circuit Model Jury Instructions - Criminal 11.03.

See also e.g. 8th Circuit Model Jury Instructions - 6.21.853.

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    287.1.12    Special Jury Forms As To Duplicitous Theories (Alternative Means Of Commission)

PRACTICE NOTE: The use of special verdict forms has been identified as either pivotal or highly significant in determining whether nonunanimous convictions are reversible. For example, "[t]he Washington Supreme Court '‘strongly urge[s] counsel and trial courts to heed our notice that an instruction regarding juror unanimity on the alternative method is preferable.'" (State v. Ortega-Martinez (WA 1994) 881 P2d 231, 239, n 2.) "Requiring the jury to be unanimous as to particular alternative means eliminates the possibility of a conviction being overturned should one of those alternatives not be supported by substantial evidence..." [Citations omitted.] (State v. Fortune (WA 1996) 909 P2d 930, 935.)

    Where both felony murder and premeditated murder are charged in a single indictment, special verdict forms may be used to indicate which theories of first degree murder the prosecution has proved in case one is later found to be improper. (People v. O’Neill (CO 1991) 803 P2d 164, 173 [citing People v. Lowe (CO 1983) 660 P2d 1261, 1269].)

See generally, FORECITE National™ 305.19.6 [Special Verdicts].

See generally 8th Circuit Model Jury Instructions - Criminal 11.03.

See also e.g. 8th Circuit Model Jury Instructions - 6.21.853.

    287.1.13    Special Verdict As Improper Directed Verdict In Violation Of Due Process

    287.1.14    Special Verdict As Improper Extraneous Influence On The Jury

PRACTICE NOTE: State v. Dilliner (WV 2002) 569 SE2d 211, 215, held that special interrogatory should not be used in criminal cases.  "Simply put, special interrogatories in criminal cases are contrary to the basic principle of law that jury deliberations should be free from extraneous influences."