The Framers placed a high premium on jury independence and viewed the jury's ability to dispense lenity as an important check on the legislative and executive branches. Many features of the criminal justice system are designed to interpose the jury between the accused and overzealous legislators and prosecutors. The general verdict and the absolute finality of acquittals, for example, empower the jury to acquit a defendant against the weight of the evidence. Although these features of the criminal justice system were conceived to protect defendants, they may be more harmful than helpful to defendants, given changes in the criminal justice system since the Founding. The proliferation of overlapping federal offenses, for instance, is a change that directly implicates the opacity of the general verdict. This Note explains that, in a trial resulting in an acquittal on some charges and a mistrial on other charges, a lack of transparency in what the jury has necessarily decided can harm the defendant by making it difficult for him to invoke the collateral estoppel protection. This Note proposes using special verdict forms to prevent jury inconsistency and provide clarity in cases involving multiple federal criminal offenses based on the same underlying facts.
Meghan A. Ferguson,
Balancing Lenity, Rationality, and Finality: A Case for Special Verdict Forms in Cases Involving Overlapping Federal Criminal Offenses,
59 Duke Law Journal
Available at: http://scholarship.law.duke.edu/dlj/vol59/iss6/5