Bias and other forms of logical corner-cutting are an unfortunate aspect of criminal jury deliberations. However, the preferred verdict system in the federal courts, the general verdict, does nothing to counter that. Rather, by forcing jurors into a simple binary choice — guilty or not guilty — the general verdict facilitates and encourages such flawed reasoning. Yet the federal courts continue to stick to the general verdict, ironically out of a concern that deviating from it will harm defendants by leading juries to convict.
This Essay calls for a change: expand the use of a special findings verdict, the general verdict with special interrogatories, to every case in order to guard against prejudicial reasoning and like shortcuts. Moreover, to ensure that such a change is feasible and does not run afoul of the concerns that bind courts to the general verdict, it suggests that courts require jurors to answer special interrogatories when, but only when, they have proceeded down the path towards finding the defendant guilty, using a verdict procedure designed to retain the benefits of general verdicts while jettisoning their flawed elements and complying with current practice. That change hopefully could vastly improve our jury system and allow the jury to truly serve — in the words of the Supreme Court — as “a criminal defendant’s fundamental ‘protection of life and liberty against race or color prejudice.’”
Juror, verdict form, racial prejudice, cognitive bias, heuristics, jury decisionmaking, criminal procedure, special verdict, jury confusion, criminal justice, criminal procedure, special questions
Hintz, Charles Eric, "Fair Questions: A Call and Proposal for Using General Verdicts with Special Interrogatories to Prevent Biased and Unjust Convictions" (2021). Faculty Scholarship at Penn Law. 2274.
Courts Commons, Criminal Law Commons, Criminal Procedure Commons, Criminology and Criminal Justice Commons, Law and Psychology Commons, Law and Race Commons, Law and Society Commons, Public Law and Legal Theory Commons