Supreme Judicial Court, May 19, 2014

When a jury cannot unanimously agree on a guilty finding of the greatest offense, Massachusetts follows the “soft transition” rule and the judge should instruct the jury that they may move on to consider the lesser offenses without being required to find the defendant not guilty of the greater offense.

“We recognize that the soft transition rule means that a jury may not unanimously have agreed to acquit a defendant of a greater offense when they find a defendant guilty of a lesser offense. But, under the Federal constitutional prohibition against double jeopardy, the conviction of a lesser offense is treated as an implied acquittal of the greater offense, and the defendant cannot be retried on the greater offense where the conviction on the lesser offense is vacated on appeal. See Green v. United States, 355 U.S. 184, 191 (1957).”