to "suggest that special verdicts in criminal cases are never
broadly failed to distinguish between "special verdicts" and
It is not certain how widespread the use of special verdicts
The Committee takes no position whether a special verdict
form or a general verdict form is appropriate in any given case and that decision is left to the presiding court.
(2) Because special verdicts
hide this inconsistency, judges can rule in a way that jurors do not intend.
. Rule 49(a) grants the trial court discretion to require the jury to return a special verdict
, in which the jury answers only written interrogatories of fact but does not enter a general verdict declaring which party prevails.
The Solution: Carving at the Joint, Special Verdicts
, and Issue Preclusive Effect
22 (encouraging the use of special verdicts
); but for another point of view, see David A.
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.
As a result of this deeply ingrained preference for general verdicts, it is widely agreed that special verdicts
are improper in criminal cases.(140) Fortunately, special verdicts
are not necessary to preserve a defendant's right to a unanimous verdict in compound-complex criminal cases.
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
.(38) Unfortunately, not all qualified immunity cases turn on neatly packaged issues of fact.
However, with the advent of special verdicts
and the bifurcation of issues, it is now common for cases to be submitted to the jury with a special verdict
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."
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