NCJ Number
93012
Journal
University of Michigan Journal of Law Reform Volume: 16 Issue: 3 Dated: (Spring 1983) Pages: 561-583
Date Published
1982
Length
23 pages
Annotation
A flexible, compromise approach by judges to avoid a hung jury is preferred, both because coercive instructions are legally and psychologically undesirable and because flexible lesser included offense instructions will not abuse juries' power to compromise.
Abstract
The lesser included offense doctrine was developed as a way for the prosecution to obtain a conviction in cases where it had overcharged or was unable to prove some element of the crime. Courts presently disagree on how to present the lesser included offense instruction to juries. Generally, most courts have chosen one of two procedures: the acquittal instruction and reasonable doubt instruction. Both have a coercive effect on jurors. A different form of lesser included offense instruction may help to prevent the disagreements that lead to hung juries and coercion. By promoting discussion on a mutually agreeable compromise, modified lesser included offense instructions could prevent deadlocks from occurring. Moreover, if properly given, these instructions should not lead to unchecked jury discretion or unmerited compromise. The disagreement instruction can improve jury deliberations and reduce the number of hung juries. It accomplishes this by offering the jury more decision alternatives early in deliberations, so that the jury can arrive at a mutually agreed upon verdict. Social science studies and close analysis of the procedural setting demonstrate that increasing jury options will reduce the number of hung juries without necessarily leading to excessive unmertied compromise. Ninety-one references are supplied.