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Verdicts Are Supposed To Be Special

At Sentencing Law and Policy, Doug Berman notes a study questioning why jury verdicts in criminal cases are rendered as general, as opposed to special. When the judge orders the defendant to rise to hear the jury’s verdict, and the lawyer stands as well as the client should never stand alone, they suffer the longest, most intense minutes in a criminal case. Everything up to that point is foreplay. This is the climax. You stand there, frozen, awaiting the jury foreman to utter the words “not guilty.’

But why only the ultimate conclusion and not a finding as to each element of the offense?

Criminal jurors in American courts typically deliver their judgments through “general verdicts,” which announce only their legal conclusions of “guilty” or “not guilty.” An alternative format, the “special verdict,” would require jurors to confirm their findings of fact regarding each element of the applicable law before reaching a conclusion. Courts have long rejected the use of special verdicts in criminal cases, under the presumption that general verdicts better protect criminal defendants and their right to trial by jury. However, this procedural status quo and its underlying rationale have never been empirically examined—until now.

Never having given much thought to the issue, the “presumption,” that a general verdict better protects criminal defendants, is bizarre. In what conceivable way is a general verdict more protective of the defendant? About the only benefit imaginable is that it doesn’t prolong the agony. The article provides historical explanation, that the ultimate determination of whether a defendant is guilty or not should fall to the jury and not a judge based upon the special findings, which would infringe on the jury’s nullification power, but that archaic explanation is far removed from current practice.

This Article presents the results of an original nationwide survey on criminal verdict format that comprehensively measured the perspectives of over 1,600 stakeholders in the American legal system: state and federal judges, prosecutors, criminal defense attorneys, law professors, criminal science experts, civil litigators, and jury-eligible lay citizens—with former criminal defendants, victims, and jurors also included in the sample. The data reveal that criminal case law’s longstanding position and presumptions on verdict format are strikingly misaligned with the views and intuitions of current legal stakeholders.

The majority of stakeholder groups—including criminal defense attorneys and jury-eligible lay citizens—on average supported the use of special criminal verdicts and expected this format to benefit criminal defendants and jurors in various ways. Furthermore, even the only two stakeholder groups that on average supported the legal status quo in favor of general criminal verdicts—prosecutors and judges—did not subscribe to its rationale that special verdicts will disadvantage criminal defendants.

With a special verdict, the jury would be required to make a finding as to each element of the offense. This would serve two critical functions: First, it would guide the jury through the fact-finding process, directing their attention to the elements of the offense and then forcing them to deliberate on each element independently to determine whether it was proven beyond a reasonable doubt. Second, it would prevent the defendant’s worst fear about juries, that their verdict is ultimately more about whether they just think he deserves to be convicted than whether the case has been proven.

One thing almost all judges and trial lawyers agree upon is that jurors take their responsibilities seriously. They strive to be fair and honest in their verdict. Sure, there are always exceptions, but the vast majority of jurors do not take lightly a duty that will change other people’s lives forever. But this seriousness does not mean they necessarily get it right, or do their job well. Another truism is that jurors often “miss” crucial problems in a case, gaps in the evidence where they do what people do naturally, take leaps of faith over weaknesses in proof based on such banal beliefs such as “common sense” or “personal experience.”

By forcing a jury to make a specific finding that deals with the very specific facts of the case before them, the defendant before them, and not reach a conclusion based on generic probabilities that would suffice if they were making decisions in their lives otherwise, it would strengthen the defendant’s right to be found guilty only upon proof beyond a reasonable doubt of each and every element of the offense. That, after all, is what the law requires for conviction, even if it’s mostly honored in the breach.

The survey’s findings call the criminal legal system’s status quo on verdict format into question by debunking the conventional wisdom on which it is based. The Article also draws upon the data to consider why the norm in favor of general criminal verdicts nonetheless persists. It concludes by identifying next empirical steps to qualitatively understand and experimentally test the legal and psychological implications of verdict format in criminal cases.

The law is a Rube Goldberg machine. Change one piece of the contraption and the fear is that it will make the whole process fail. Law moves slowly to avoid catastrophe, even if it’s a fiasco in its current state. The alternative to bad isn’t necessarily…well, you know. But the only two parties to a criminal trial who support the status quo of general verdicts, judges and prosecutors, can’t manage to muster any justification that it somehow benefits the defense.

It would seem obvious why judges and prosecutors would favor a general over a special verdict. It creates far greater opportunity for the jury to find that the proof didn’t withstand scrutiny, as any failure of evidence would be sufficient to change the end result. No longer would a jury easily gloss over the logical leaps and evidentiary gaps to get to the verdict they feel is right. If the prosecution didn’t have the good, it would stare back at them from the special verdict sheet.

Perhaps more importantly, it would open a whole new arena of potential reversible era, from the preparation of the special verdict sheet that misstates or omits an element to inconsistent verdicts that compel reversal altogether. But then, getting it right is what the job is about, and getting it wrong is exactly why special verdicts would be a vast improvement over the current  general jury verdict. This is a big idea and needs to get some serious traction.

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