9.18 Verdict and Post-verdict Motions

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

9.18 VERDICT AND POST-VERDICT MOTIONS

9.1801 In General. In all criminal prosecutions, the verdict must be unanimous, in writing, signed by the foreperson, and returned by the jury in open court. ⁶⁵³ A unanimous verdict is a constitutional requirement. ⁶⁵⁴ A juror may withdraw his or her consent to the verdict at any time before the jury is discharged. The Virginia Code also provides that "[n]o person shall be convicted of a felony, unless by his confession of guilt in court, or by his plea, or by the verdict of a jury, accepted and recorded by the court, or by judgment of the court trying the case without a jury according to law." ⁶⁵⁵ After conviction, the defendant technically remains "charged" with an offense until sentenced. ⁶⁵⁶

9.1802 Joint Trial of Multiple Defendants. When two or more persons are charged and tried jointly, the jury may render a verdict as to any

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of them about whom they agree, and judgments must be entered according to the verdict. As to the others, on which there is no agreement, the case must be tried by another jury. ⁶⁵⁷

9.1803 Multiple Counts. The accused should move to strike faulty counts from the indictment or move the court to instruct the jury to disregard them. If the accused does neither and a general verdict of guilty is found, judgment will be entered against the accused if there is a good count in the indictment despite the faulty counts. However, this result should not be reached where the court can see plainly that the verdict could not have been found on the good count. ⁶⁵⁸ If the accused demurs to the faulty count or moves the court to instruct the jury to disregard it and the demurrer or motion is overruled and there is a general verdict of guilty and it cannot be seen on which count the verdict was founded, if the jury has been discharged, the verdict must be set aside; but if it is obvious that it could not have been found on the bad count, the verdict must be allowed to stand. ⁶⁵⁹

9.1804 Acquittal by Reason of Insanity. When the defense asserts an insanity defense, the jurors must be instructed that if they acquit on that ground they must state that fact with their verdict. Upon such acquittal, the court must follow the process and procedures outlined in the Virginia Code. ⁶⁶⁰

9.1805 Inconsistent Verdicts. The fact that verdicts may, on their face, be inconsistent is not a basis for reversal of the convictions, if the evidence is sufficient to support each verdict. Jury verdicts may appear inconsistent because the jury has elected, through mistake, compromise, or leniency, to acquit or to convict of a lesser offense for one charged crime that seems in conflict with the verdict for another offense. ⁶⁶¹ The general rule that apparently inconsistent verdicts will be upheld when supported by sufficient evidence does not apply to bench trials, because the justifications for inconsistent

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verdicts by a jury do not exist in bench trials. ⁶⁶² Although inconsistent bench trial verdicts are normally not permitted, they will be sustained if the trial judge has explained the verdicts on the record and the explanation shows that the action was proper and not unfair. ⁶⁶³

9.1806 Lesser-Included Offenses. The accused may be found not guilty of the offense charged but guilty of an offense, or of an attempt to commit an offense, that is substantially charged or necessarily included in the charge against the accused. ⁶⁶⁴ For example, in a prosecution for grand larceny, if the jury finds that the thing stolen is worth less than $500, it may find the accused guilty of petit larceny. ⁶⁶⁵ "When the offense charged is a felony, the accused may be found not guilty" of the charge offense but "guilty of being an accessory after the fact to that felony." ⁶⁶⁶

When, upon motion of the defendant, a trial judge sets aside a jury verdict on the ground of insufficient evidence, the judge cannot sua sponte find the defendant guilty of a necessarily included lesser offense without violating the defendant's right to a jury trial. ⁶⁶⁷

9.1807 Effect of Acquittal or Partial Acquittal. If a person indicted for a felony is acquitted by the jury of part of the offense charged, he or she must be sentenced for the part of which he or she is convicted. If the verdict is set aside and a new trial granted, the accused must not be tried for any higher offense than that of which he or she was convicted at the last trial. ⁶⁶⁸ On an indictment for a felony, a general verdict of not guilty is a bar to a subsequent proceeding for an attempt to commit such felony or of being an accessory thereto. ⁶⁶⁹

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9.1808 Deferral of Judgment. ⁶⁷⁰ Traditionally, circuit courts in Virginia have exercised jurisdiction to take certain criminal matters "under advisement" pending the defendant's successful execution of certain terms. Cases are often dismissed or reduced to a particular result pursuant either to a plea agreement or to the trial court's later sentencing ruling. In 2008, the Virginia Supreme Court...