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Obiter Dictum Run Amok

Commonwealth v. Dickerson, 372 Mass. 783, 797 (1977) was a felony murder case in an armed robbery of a liquor store that went awry. At the time there had been some contradictory cases regarding the proper jury instruction for felony murder. In Dickerson, the court clarified that if the jury found homicide occurred in the course of a life felony, the only proper verdict is first degree murder. Sua sponte, the SJC then said – almost in an offhand manner, the following:

We add that the charge should have included, in some appropriate form of words, an instruction that the jury have a duty, if they conclude that the defendant is guilty, to return a verdict of guilty of the highest crime which has been proved beyond a reasonable doubt against the defendant. See Sparf & Hansen v. United States, 156 U.S. 51, 63 (1895). This language would serve to impress on the jury that while they were empowered to return the lesser verdict, they had a duty to consider the evidence in light of the principles of law given to them by the judge. The failure to give such an instruction, if error, was also harmless beyond a reasonable doubt, since such words could not conceivably favor the defendant’s cause.

Commonwealth v. Dickerson, 372 Mass. at 797-798 (footnote omitted).

Over time, courts have forgotten the part where the purpose is to remind the jury to follow the law (which is a separate instruction) and to let them know they are empowered to return a lesser verdict (unsaid…if that is the most just verdict regardless of the zealousness of the prosecution). And, everyone seems to ignore the fact that if it is not given, that would be a harmless error if error at all. This piece about convicting on the highest charge came to be known as “the Dickerson instruction” and it would become a boon for prosecutors across the Commonwealth. It is so ingrained in Massachusetts criminal cases that no one gives it a minute’s thought or thinks to add in the reminder that they are empowered to return a lesser verdict. Judges think it is necessary to include in every single case – and they do. They are wrong.

Not only was that paragraph taken out of context (it is, afterall, nothing more than dicta), but it is also an enormous misinterpretation of the case it cites, Sparf and Hansen v. United States, supra. So, let’s dive a little bit into that case, shall we? The events of that case took place in 1893 on a ship at sea. It was a dark and stormy night – or maybe not. But, one of the crew members went missing and was presumed killed and his body tossed overboard. Anyway – the point of that case was that that the defendants tried for the murder requested certain jury instructions of the court which were denied. They preserved their objection and the issue went up to the Supreme Court of the United States.

Why did this not go to a circuit court of appeals rabbit hole: In 1891, federal circuit courts of appeals were established. This new intermediary court would relieve the number of cases reaching the Supreme Court of the United States and allow for speedier appeals. Over time, the jurisdiction of intermediary courts grew. But in 1893 – the very, very beginning of circuit courts – murder on the high seas was not within the jurisdiction of the circuit courts.

So, this was the requested jury instruction at issue:

In all criminal causes the defendant may be found guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment, or the defendant may be found guilty of an attempt to commit the offense so charged, provided that such attempt be itself a separate offense.’ ‘Under an indictment charging murder, the defendant may be convicted of murder, of manslaughter, or an attempt to commit either murder or manslaughter.’ ‘Under the indictment in this case, the defendants may be convicted of murder, or manslaughter, or of an attempt to commit murder or manslaughter; and if, after a full and careful consideration of all the evidence before you, you believe, beyond a reasonable doubt, that the defendants are guilty either of manslaughter, or of an assault with intent to commit murder or manslaughter, you should so find your verdict.

Sparf and Hansen v. United States, 156 U.S. at 59.

Instead, the judge offered this instruction to the jury:

What, then, is murder? There are only two kinds of felonious homicide known to the laws of the United States. One is murder, and the other is manslaughter. There are no degrees of murder.’ ‘There is no definition of ‘murder’ by any United States statute. We resort to the common law for that. By the common law, murder is the unlawful killing of a human being in the peace of the state, with malice aforethought, either express or implied. Malice, then, is an element in the offense, and discriminates it from the other crime of felonious homicide which I have mentioned, to wit, manslaughter; that is, malice, express or implied, discriminates murder from the offense of manslaughter.' ‘Express malice exists when one, by deliberate premeditation and design, formed in advance, to kill or to do bodily harm, the premeditation and design being implied from external circumstances capable of proof, such as lying in wait, antecedent threats, and concerted schemes against a victim. Implied malice is an inference of the law from any deliberate and cruel act committed by one person against another. The two kinds of malice, therefore, to repeat, indicate but one state of mind, established in different ways,—the one by circumstances showing premeditation of the homicide, the other by an inference of the law from the act committed; that is, malice is inferred when one kills another without provocation, or when the provocation is not great. Manslaughter is the unlawful killing of a human being without malice, either expressed or implied. I do not consider it necessary, gentlemen, to explain it further, for if a felonious homicide has been committed, of which you are to be the judges from the proof, there is nothing in this case to reduce it below the grade of murder. In other words, it may be in the power of the jury, under the indictment by which these defendants are accused and tried, of finding them guilty of a less crime than murder, to wit, manslaughter, or an attempt to commit murder; yet, as I have said in this case, if a felonious homicide has been committed at all, of which I repeat you are the judges, there is nothing to reduce it below the grade of murder.

Id. at 59-60 (emphasis added).

The jury was, necessarily, confused during deliberation and came back to request further instruction. That colloquy is reprinted in the case – it is quite extraordinary - and I will paraphrase here. At least a few jurors felt that the facts of the case might actually more properly be defined as manslaughter. The judge explained that they must be idiots because even though they must decide the facts and apply those facts to the law – he has already told them that either this is not guilty or guilty of murder because, you know, the facts don’t support manslaughter (even though the jurors kind of disagreed with the court on this issue and they are, umm, the finders of facts). The prosecutor said – right in front of the jury – hey – judge – tell them that if we had brought a case for manslaughter then guilty of manslaughter would be one possible verdict but here we want only murder so they need to sign the death warrant or let the guys walk - which we now know they won’t because the jurors just indicated that they think these two were involved with the killing which – as you so eloquently explained is murder. And then the defense attorney says – people, people – it’s up to the jury to decide! To which the judge and the prosecutor said who asked you? Can’t you see we are busy directing a verdict here? And the juror said – let me get this straight, it’s either capital murder or nothing? To which the court replied by George I think they’ve got it! And then the jury came back with a guilty verdict.

Well, this delighted Justice Harlan to no end. He took a trip down memory lane recounting every conceivable case they could find where courts have discussed whether the jury is merely a factfinder or whether the jury can be both the decider of the law and the facts. The journey is enchanting – recounting the Aaron Burr trial amongst other federal case highlights before looking to see what states have said about the role of the jury and whether the jury can nullify a law or whether that would lead to anarchy. The case is actually a ton of fun to read, and I highly recommend it. It would have been so much better if, in fact, the members of the SJC in 1977 had actually read it before they decided what it said.

Because of all of the things it says – and it’s a lot, the case runs 131 pages and my printout is 54 pages long – it never ever, ever says that a court should give “an instruction that the jury have a duty, if they conclude that the defendant is guilty, to return a verdict of guilty of the highest crime which has been proved beyond a reasonable doubt against the defendant.” That is not even what the decision is about. In Sparf v. Hansen, the trial judge decided that the lesser included jury instruction for manslaughter should not be given to the jury because the judge decided that under no version of events was that a proper verdict – it was murder or nothing. BUT, the judge then talked about manslaughter and confused the heck out of the jury. (Sidenote, I will never be a judge but if I were I would have found that jury instruction to be reversible error for two reasons: 1) it was hella confusing and 2) clearly, reasonable people on the jury – whose job it was to find facts and determine credibility of the witnesses - disagreed with that conclusion, but I digress).

Yet, no one has ever questioned this jury instruction and everyone just accepts it. Part of the jury system is a check and balance by ordinary citizens on all three branches of government, including the legislature. While the jury must be willing to accept constitutional principles, why is mercy prohibited? It does not nullification a law if the jury decides that the most appropriate verdict – the weight of the evidence, if you will – is a lesser included offense than the highest offense charged.

It’s a bit of a hair splitting but an important one. But, the issue in Sparf and Hansen was NOT whether the jury could reach a verdict on a lesser offense even if the government had arguably proven a higher offense. The issue in that case was whether, where a judge determined that there was NO lesser included offense, could a jury just decide on a lesser charge. That is, under the facts as presented by the government, there was no possible scenario where the crime could be considered to be manslaughter – if the jury believed that the victim was killed and if the jury believed the defendants were involved, the acts were so premeditated, planned, and brutal that the only possible verdict was murder. The judge erred by even mentioning manslaughter. The appellate issue today would have been phrased something like, "whether the trial judge committed reversible error for introducing a lesser offense to the jury which remained undefined and, as far as the court determined, prohibited under the facts in evidence?"

That is very different from the case where there is a lesser included offense for which the court provides a jury instruction. Routinely, courts explain the highest offense and then any lesser included offenses and then they give the Dickerson instruction (erroneously, in my opinion). Because of the Dickerson instruction, courts also then tell the jury how to deliberate – they say start with the worst possible offense and work backward. Well, that, too, is error. Judges should not intrude on the province of the jury. Indeed, it makes more logical sense to start with the lowest possible crime and work up. But, in any event, it should be up to the jury to determine how they deliberate, not the judge.

In Sparf and Hansen, the jurors knew (as all jurors at the time knew) the penalty for murder. As some of the exchange between the court and the jurors makes clear, they all agreed that the defendants were involved in the murder but they also did not all agree that they committed the murder and should be put to death. The only way to do that would be to find for the lesser offense of manslaughter – or even aiding and abetting the homicide - which they were prohibited from doing because the court told them the facts only comported with the offense of murder or not guilty. But, in the same breath, the court said that the jurors were in charge of determining the facts. Which, of course, makes no sense to normal people.

Real issue in Sparf rabbit hole: The issue in Sparf was presented as one of jury instructions and whether the trial court erred in failing to provide the instruction submitted by the defense. However, perhaps the issue in that case could have been better framed as, "whether the trial court usurped the role of the jury when it forbid the jury from considering and reaching a verdict on the lesser-included offense of manslaughter." The evidence in the case was quite tenuous and relied considerably on hearsay and alleged statements of co-defendants. It was hardly a rock-solid case - they did not even have a body. It would have been far more interesting to question the role of the judge in the case rather than the role of the jury.

In Massachusetts, jurors cannot learn of the possible penalties associated with the verdicts they render. This leaves them even more in the dark about the process in which they are deeply enmeshed and their informed participation is essential to ordered liberty. What are courts afraid of? What is the purpose of a jury system if it has no power at all for mercy and fairness – for curtailing the extraordinary power of the government to restrain liberty?

The jury instruction to convict of the highest possible crime for which the Commonwealth has proven guilt beyond a reasonable doubt is just a bad jury instruction. Despite the citation in Dickerson dicta, it is not based on a Supreme Court decision. It has no place in a free society. It does not even make sense in context in the Dickerson case because the court went on to say that the jury IS empowered to return a lesser verdict. If a jury finds that the most appropriate verdict is a lesser included offense, that should be the verdict. That is not jury nullification or juries deciding the meaning of laws. That is the jury doing its job. Juries should be a check on the system, not a rubber stamp.

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