Ben Osborn


The practice of charging lesser included offenses often leads juries to acquit on some levels of a given count but deadlock on others, but many states do not give effect to such acquittals and instead record only the deadlock for the entire count. Because the Double Jeopardy Clause only attaches to formally recorded verdicts, defendants’ double jeopardy rights will thus often depend on whether and how a jury is afforded the opportunity to give effect to such partial acquittals. Some states expressly forbid such partial acquittals, a practice deemed constitutional by the United States Supreme Court. New Mexico not only allows partial verdicts, but also takes the unusual approach of requiring trial courts to poll juries which deadlock on counts with lesser included offenses to see whether the jury voted to acquit on any level of the offense. This comment argues that New Mexico is correct to allow partial verdicts on lesser included offenses, but that it has not chosen the proper means to do so. Polling is too imprecise to protect defendants’ double jeopardy rights, and ample research shows that small changes in polling questions can significantly impact jurors' answers. Instead of polling, the Court should require that juries be provided partial verdict forms, which would enable the jury to mark “guilty” or “not guilty” on each level of a count with lesser included offenses. This small change in the verdict form would strengthen constitutional protections while promoting judicial efficiency and ensuring more accurate verdicts.

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