PG VIII(F) Special Verdict Form: Coercive Impact On Jury.
Although there is no per se prohibition, “[a]s a rule, special verdicts in criminal trials are not favored.” (U.S. v. O’Looney (9th Cir. 1976) 544 F2d 385, 392; see also U.S. v. Reed (9th Cir. 1998) 147 F3d 1178.) The purpose of this rule is to protect the rights of criminal defendants by preventing the court from pressuring the jury to convict. In O’Looney, the court summarized the concerns with special verdicts as follows: “To ask the jury special questions might be said to infringe on its powers to deliberate free from legal fetters; on its power to arrive at a general verdict without having to support it by reasons or by a report of its deliberations; and on its power to follow or not to follow the instructions of the court. Moreover, any abridgement or modification of this institution would partly restrict its historic function, that of tempering rules of law by common sense brought to bear upon the facts of a specific case.” (O’Looney 544 F2d at 392.)
However, exceptions to the general rule disfavoring special verdicts in criminal cases have been expanded and approved in an increasing number of circumstances. Ultimately these cases make it clear that use of a special verdict form is a matter of the district court’s discretion to be determined on the facts of each case. (Reed, 147 F3d at 1181.) Specifically, a special verdict form which requires the jury to determine the existence of any of a series of acts, each of which is sufficient to constitute the indicted crime, does not implicate the traditional concerns regarding special verdicts. (Ibid.)