Commonwealth v. Durham

I disagree with the majority’s conclusion that CR 49.02 applies to instructions in *838criminal cases. RCr 13.04 provides that “[t]he Rules of Civil Procedure shall be applicable in criminal proceedings to the extent not superseded by or inconsistent with these Rules of Criminal Procedure.” (Emphasis added.) When CR 49.02 was adopted, Sections 256 and 259 of the Code of Practice in Criminal Cases permitted juries to render special verdicts, defined in Section 260 as “conclusions of fact as established by the evidence, and not the evidence of those facts.” When the Criminal Code was replaced by…