Chapter 287

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VOLUME 13 - CHAPTER 287
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287.4 Partial Verdict

    287.4.1 Propriety Of Partial Verdict Instruction As To Lesser Offenses
    287.4.2 When Should A Partial Verdict Instruction Be Given?
    287.4.3 Propriety Of Partial Verdict Instruction: Multiple Defendants
    287.4.4 Partial Verdict: Dismissal Of Greater Offense In Response To Deadlock
    287.4.5 CAVEAT: Partial Verdict On Lesser Charge May Result In All-Or-Nothing Retrial On The Greater Charge

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287.4.1 Propriety Of Partial Verdict Instruction As To Lesser Offenses

RATIONALE: The propriety of an instruction on a partial verdict must be evaluated in light of competing tactical considerations. 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.

POINTS AND AUTHORITIES: FRCRP 31(b) states that any time during deliberations in a multi-defendant case, the jury "may return a verdict or verdicts with respect to a defendant or defendants as to whom it has agreed." The cases have also recognized that partial verdicts may be accepted not only as to certain defendants, but also as to certain counts. (See e.g., U.S. v. Levasseur (2nd Cir. 1987) 816 F2d 37, 45; U.S. v. Ross (9th Cir. 1980) 626 F2d 77, 81.) A similar rule has been followed in some state jurisdictions as well. (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]; United States v. Ross, 626 F2d 77 (9th Cir. 1980); United States v. Fermin, 32 F3d 673 (2nd Cir. 1994); United States v. DeLaughter, 453 F2d 908 (5th Cir. 1971).)

It has also been held as a matter of state law that the trial court is obligated to accept a verdict of acquittal on a charged offense despite deadlock on a lesser included offense. (See e.g., Stone, 31 C3d at 509.) While this rule has been limited to situations where there is some indication of juror deadlock (see e.g., Marshall, 13 C4th at 826), the failure to instruct upon partial verdicts at the outset provides the jury with an "all or nothing" choice which may violate due process principles. (See People v. Geiger (CA 1984) 35 C3d 510, 526 [199 CR 45].)

However, whether to give a partial verdict instruction requires consideration of case-specific circumstances. A fixed rule 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.)

"Most importantly, however, is that such a per se rule 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." (Ibid.)

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

RELATED FEDERAL MODEL INSTRUCTIONS:

See 1st Circuit Pattern Jury Instructions - Criminal 6.04.

See also 6th Circuit Pattern Jury Instructions - Criminal 9.03.

See also 7th Circuit Federal Jury Instructions - Criminal 7.01.

See also 7th Circuit Federal Jury Instructions - Criminal 7.02.

See also 8th Circuit Model Jury Instructions - Criminal 3.12.

See also 8th Circuit Model Jury Instructions - Criminal 11.01.

See also 8th Circuit Model Jury Instructions - Criminal 11.02.

See also 9th Circuit Model Jury Instructions - Criminal 7.5.

See also 11th Circuit Pattern Jury Instructions - Criminal BI 12.

See also Federal Judicial Center, Pattern Criminal Jury INSTRUCTIONS 58.

SAMPLE INSTRUCTION # 1:

You do not have to reach unanimous agreement on all of the [charges] [defendants] before returning a verdict on some of them. You may return a verdict as to any [charge] [defendant] on which you have unanimously agreed and then continue deliberating on the others.

[See CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 2.92 [Partial Verdict] (Bar Association of the District of Columbia, 4th ed. 1993).]

SAMPLE INSTRUCTION # 2:

    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).

[Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS 58 [Selection Of Foreperson; Communication With The Judge; Verdict Forms] (1988).]

SAMPLE INSTRUCTION # 3:

    (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.

[6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 9.03 [Partial Verdicts] (1991).]

SAMPLE INSTRUCTION # 4:

You should return a verdict as to all defendants on all counts, if you can do so with all jurors agreeing.

If you are only able to reach a verdict as to [some of the defendants] [or] [some of the counts] after deliberating on those conscientiously, you [may] [should] return those verdicts upon which you have unanimously agreed.

[See United States v. Burke, 700 F2d 70, 80 (2nd Cir. 1983); see also Sand, et al., Modern Federal Jury Instructions (Lexis, 2001), Inst. 9-8, p. 9-24.]

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287.4.2 When Should A Partial Verdict Instruction Be Given?

PRACTICE NOTE: When to give such an instruction is subject to some dispute. In U.S. v. DiLapi (2nd Cir. 1981) 651 F2d 140, 146-47, and U.S. v. Burke (2nd Cir. 1983) 700 F2d 70, 78-80, 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 predeliberation 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 6th Circuit 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).)