The Hobgoblin of Little Minds? Our Foolish Law of Inconsistent Verdicts

Abstract:     
What should a court do when a single criminal jury reaches logically irreconcilable verdicts--for example, convicting one defendant of conspiracy but acquitting her sole alleged coconspirator? The Supreme Court has unanimously decreed that a court should do nothing: it should leave the verdicts undisturbed. To reverse the inconsistent conviction would not only require guesswork about what produced the inconsistency, but would also be unfair to the government. The government, after all, might have been the victim of the jury's error, but the Double Jeopardy Clause precludes it from appealing the inconsistent acquittal. To avoid this unfairness, the Court concludes, the defendant must accept her conviction, just as the government must accept the acquittal.In this Article, Professor Muller demonstrates that this do-nothing approach to inconsistent verdicts masks a deep pro-government bias. He argues that the Court has both underestimated the harms that inconsistent verdicts pose to criminal defendants and overstated the impact of such verdicts on the government. He also notes that the Court has imagined only all-or-nothing solutions to the problem of inconsistent verdicts: either reverse all inconsistent convictions, or affirm them all. Professor Muller suggests two solutions that would allow courts to try to distinguish and disturb only those inconsistent convictions that likely resulted from pro-government jury error.

JEL Classification: K14

Accepted Paper Series