Special verdicts are virtually never used in criminal cases,
reliance on element-by-element special verdict forms that impede
2) Because special verdicts hide this inconsistency, judges can rule in a way that jurors do not intend.
Simply put, the jury voting paradoxes that I have identified are endemic to special verdicts.
submitted to the jury under Rule 49(a) may also pose a minimal risk of inconsistency in the verdict because the jury is constrained solely to making findings of fact whereas the trial judge is the one who applies the law to the jury's factual findings.
308) Additionally, such lists of questions resemble special verdicts
, the use of which is strongly disfavored in criminal trials.
In bifurcated mass tort cases, the term "fact tried by a jury," therefore, should generally be read with reference to special verdicts
But we do suggest that cases such as this, where multiple theories of liability are asserted, are the ones most suited to the use of special verdicts
, because special verdicts
will often obviate the necessity of deciding difficult legal questions which are not essential to an appropriate disposition of the controversy.
This author's guess is that even if new procedures are adopted, prosecutors in the vast majority of criminal cases will obviate the need for special verdicts
and penalty phase proceedings by stipulating to a guideline sentence no higher than the statutory maximum.
Without the use of special verdicts
or special interrogatories,(133) it is impossible to know which jurors are convinced beyond a reasonable doubt of which predicate acts.
Where the ultimate issue of objective reasonableness turns on a discrete issue of evidentiary fact, the issue could be "resolved by the jury using special verdicts
Part II explores the strong interest in preserving the jury's independence in the criminal context through the lens of the Supreme Court's "do-nothing approach" (14) to verdict inconsistency, the traditional disfavor of special verdicts
, and the continuing debate over the doctrine of jury nullification.
While we have never prohibited the use of special verdicts
in the guilt phase for first-degree murder, we decline at this time to mandate their use.
The jury rendered a series of special verdicts
that awarded damages to the plaintiffs.
Automobile collision; comparative negligence; single claimant and defendant; no counterclaim; no-fault <begin strikethrough>threshold<end strikethrough> issue; witnesses testifying in foreign language; instructions for beginning and end of case; use of special verdict
in burden of proof and damage instructions