It’s not unusual for a losing party to have plenty of negative things to say about a jury verdict. But what is the difference between an unpleasant, unwanted or bad verdict and a repugnant verdict?
Simply put, a repugnant verdict is one where the defendant is found guilty to the top charge, but not to a lesser-included offense. This is an issue because a lesser-included offense is a prerequisite to the top charge: if you are guilty of the latter, you must be guilty of the former.
In cases that have lesser-included charges in addition to the top charge, there are certain requirements that must be met in order to have these lesser-included charges added to the indictment. One of these requirements is that it must be impossible to commit the original offense without committing the lesser-included offense at the same time. If there is some element of the lesser-included offense that is not involved in committing the greater offense, then it should not be included as a lesser-included offense. When reaching a verdict, the jury must first consider the top charge. If the jury finds the defendant guilty of the top charge, then they do not need to consider a lesser-included offense, since it would have been impossible for you to commit the top charge without simultaneously committing the lesser-included offense. If they find you not guilty of the top charge, then they may consider any lesser-included offenses.
But suppose a jury finds a defendant guilty of the top charge and then finds the same defendant not guilty of the lesser-included offense. This is known as a repugnant verdict.
For example, if you are charged with the misdemeanor of driving while intoxicated under VTL 1192(3), you should also be charged with the violation of driving while impaired under VTL 1192(1) as a lesser-included offense. To find you guilty of driving while intoxicated, the jury must find that your mental and physical ability to safely drive a vehicle was impaired to a substantial extent from the consumption of alcohol. In order to find you guilty of driving while impaired, the jury must only find that your ability to safely operate a vehicle was simply impaired to any extent by the consumption of alcohol. If your ability was impaired to a substantial extent, it must also have been impaired to any extent. To say a defendant’s ability was substantially impaired, but not impaired to any extent just doesn’t make sense. So if a jury found you guilty of driving while intoxicated under VTL 1192(3) but not guilty of driving while impaired under VTL 1192(1), the verdict would be repugnant. Driving while impaired is a necessary step below driving while intoxicated, and without reaching that first step, you cannot logically reach the second step. If the jury found you guilty of driving while intoxicated, but acquitted you for driving while impaired, it would be considered a repugnant verdict.
In situations where the jury gives a repugnant verdict, the defense attorney should alert court that the verdict is repugnant before the jury is dismissed, and may make a motion to dismiss the guilty verdict based on the logical inconsistencies of the jury’s decision. Depending on the case, the guilty verdict may be dismissed by the judge, the jury may be re-instructed based on the inconsistency of their verdicts and allowed to reconsider their decision, or the case may be resubmitted to a different jury. In these cases the acquittal stands, but the conviction can be vacated without prejudice to be retried. In the example of the case of a guilty verdict for driving while intoxicated, but not guilty for the lesser-included driving while impaired, the not guilty verdict for the lesser-included charge of driving while impaired will remain, but the defendant may be retried on charge of driving while intoxicated.
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