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Improving Jury Deliberations - A Reconsideration of Lesser Included Offense Instructions

NCJ Number
University of Michigan Journal of Law Reform Volume: 16 Issue: 3 Dated: (Spring 1983) Pages: 561-583
M D Craig
Date Published
23 pages
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.
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.


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