When is an inconsistent verdict not inconsistent?

• Author: Hopkins, Kimberly Nolen
• Position: Florida law

When is a defendant guilty of introduction of contraband into a prison facility, but not guilty of possession of the same contraband? It is not a trick question, necessarily.

Give up?

This query is an example of the riddle commonly known as an inconsistent verdict. The answer appears to be, "When the jury says so."

More puzzling than the initial inquiry is the case law which has developed attempting to clarify the fiddle of inconsistent verdicts. As if the concept is not confusing enough, Florida courts have elected to categorize inconsistent verdicts as either permissible or impermissible. Thus, rather than providing simple guidance on the issue, the relevant appellate opinions have surrounded the concept of inconsistent verdicts like the proverbial enigma wrapped around the riddle.

This article will discuss the different types of inconsistent verdicts, the justification for permitting inconsistent verdicts, and possible solutions for clarifying the legal concept of inconsistent verdicts. While Florida courts have sought to develop a logical framework for dealing with inconsistent verdicts, the actual results have been ... well ... inconsistent.

First, what is an inconsistent verdict? An inconsistent verdict defies logic. By acquitting a defendant on one count, but convicting on a second count which is factually and/or legally interconnected to the first, a jury returns an inconsistent verdict.(1) For example, in State v. Connelly, 748 So. 2d 248, 249 (Fla. 1999), the jury convicted the defendant of introducing contraband upon the grounds of a county detention facility, but acquitted him on the count of possession of the same contraband. Logically, this verdict appears improper. If the defendant brought cannabis into the prison, he must have also had it in his possession. Despite this obvious inconsistency, such verdicts are routinely upheld.(2)

In fact, the majority of states follow the federal rule which allows inconsistent verdicts without distinction.(3) Justice Holmes, in Dunn v. United States, 284 U.S. 390 (1932), wrote for the U. S. Supreme Court on this topic almost 70 years ago.

Consistency in the verdict is not necessary.

The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity.

That the verdict may have been the result of compromise, or of a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters.(4)

Florida courts, however, have adopted the minority view which distinguishes between "true" inconsistent verdicts and, apparently, "not so true" inconsistent verdicts.(5) Ignoring the admonition from Justice Holmes that verdicts should not be overturned based on mere speculation or even inquiry into the reasoning behind the inconsistent verdict, Florida decisions have created a distinction without a difference in reference to inconsistent verdicts.

While recognizing that inconsistent verdicts can be the proper result of jury lenity,(6) Florida courts created an...