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Licensed Unlicensed Requires Authentication Published by De Gruyter August 23, 2021

What’s So Special About General Verdicts? Questioning the Preferred Verdict Format in American Criminal Jury Trials

Avani Mehta Sood

Abstract

Criminal juries in the United States typically deliver their decisions through a “general verdict,” expressing only their ultimate conclusion of “guilty” or “not guilty,” rather than through a “special verdict” that identifies whether each element of the charged crime has been proven beyond a reasonable doubt. American courts have broadly favored the use of general verdicts in criminal cases due to concerns that the special verdict will curtail the jury’s decision-making autonomy, including its power to nullify the law in favor of the defense, potentially undermining the criminal defendant’s constitutional right to trial by jury.

This Article confronts the legal status quo on verdict format and its underlying, untested assumptions. Drawing upon prior psychology findings and legal professionals’ anecdotal observations, it questions whether the general verdict poses its own under-acknowledged threats to the rights of criminal defendants and the decision-making agency of jurors. While the more guided special verdict format is presumed to threaten nullifying acquittals, the unguided general verdict format might be enabling convictions that violate constitutional norms of due process, impartial adjudication, and equal protection.

Given the high-stakes values potentially implicated in the choice of verdict format in criminal cases, it is time to put the conventional wisdom in favor of general verdicts to an empirical test. This Article therefore proposes a methodological framework for investigating whether the legal status quo accurately reflects (1) current stakeholders’ preferences and predictions, and (2) experimentally testable legal and cognitive effects of general versus special verdicts in lay determinations of criminal liability. A data-informed understanding is needed to assess whether the general verdict is optimizing the integrity, fairness, and constitutionality of criminal jury decision making.


* Professor of Law, University of California, Berkeley; J.D., Yale Law School (2003); Ph.D., Princeton University (Psychology, 2013). For helpful comments and conversations, I thank Rachel Barkow, Shari Seidman Diamond, Prasad Krishnamurthy, Janice Nadler, Daniel Richman, Andrea Roth, Michael Mehta Webster, the Theoretical Inquiries in Law editors, and participants at the Conference in Honor of Bob Cooter at Berkeley Law, the Law and Social Sciences Colloquium at UVA Law, the Law, Society, and Psychological Science Summer Research Series, the Faculty Forum at SMU Dedman School of Law, the Law and Society Association’s Annual Meeting, and the Junior Working Ideas Group at Berkeley Law. Vincent Burnton, Stephen Dockery, Carly Giffin, Anika Holland, Kehaulani Jai, Gitika Nalwa, Bill Nguyen, Emma Nicholls, Anand Purohit, Christian Stefanov, Waleed Vohra, and Alison Yardley have provided excellent research assistance for this Article and the related program of empirical studies underway. I am also grateful to all the litigators and judges who have spoken with me about their views on verdict format in jury trials.


Published Online: 2021-08-23
Published in Print: 2021-07-27

© 2021 by Theoretical Inquiries in Law

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