concurring in part and dissenting in part.
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 RCr 13.04 provides that “[t]he Rules of Civil Procedure shall be applicable in criminal proceedings to the extent not superseded by or inconsistent with these Rules of Criminal Procedure.”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 the present Criminal Rules in January 1963, the provision for special verdicts was deleted and RCr 9.82 now states: “The verdict shall be unanimous. It shall be returned by the jury in open court.” (Emphasis added.) The implication is clear; there shall be only one verdict. Thus, the provision for multiple verdicts in civil cases in CR 49.02 is “inconsistent with these Rules of Criminal Procedure.”
The majority correctly notes that certain penal code provisions require special verdicts with respect to aggravating circumstances, obscenity, and sexual performances by minors. However, I would limit the use of interrogatories or form verdicts to only those that are required by such provisions or that are necessary to determine the type of penalty phase required upon conviction, e.g., whether a conviction of kidnapping requires a penalty phase as described in KRS 532.055 or as described in KRS 532.025. Otherwise, interrogatories and special verdicts serve no purpose. If a general instruction with respect to an offense requires the jury to find the existence of each element of that offense beyond a reasonable doubt, what purpose is served by separate interrogatories with respect to those elements? The instructions described in Commonwealth v. Hager, Ky., 41 S.W.3d 828 (2001), are representative of the mischief that can result when a jury is required to struggle through a maze of mini-verdicts before returning a general verdict of guilt or innocence.
Finally, what if the jury answers “yes” to the interrogatories with respect to each element of the offense, but returns a verdict of “not guilty”? “[I]n a criminal case it is a longstanding common law tradition ... that the jury always has the option of disbelieving the evidence offered to prove guilt and returning a ‘not guilty’ verdict.” Medley v. Commonwealth, Ky., 704 S.W.2d 190, 191 (1985). The following is said in United States v. Leach, 632 F.2d 1337 (5th Cir.1980):
Of course, the jury may have believed the Government’s case and still have acquitted Leach. Jury nullification — the right of a jury to acquit for whatever reasons even though the evidence supports a conviction — is an important part of the jury trial system guaranteed by the Constitution. In this case, it is not inconceivable that the jury might have been offended by the number of government witnesses who had been allowed to plead guilty to greatly reduced charges in return for their testimony, and might have felt it unfair to convict Leach in light of the lenient treatment received by the others.
Id. at 1341 n. 12.
While it is easy to say that the general verdict prevails over the special verdict, what of the argument that the return of a not-guilty verdict after finding the existence of all the elements of an offense is not a disregard of the evidence but a disregard of the law? Cf. Medley, supra, at 191:
Counsel has the right to argue that the jury may disbelieve the evidence and find the defendant not guilty, but no right to argue that it may disregard the law because it believes the minimum *839penalty set by the legislature is too severe.
Worse, what if the jury returns a general verdict of guilty but an answer of “No” to an interrogatory as to one of the elements of the offense?
I, for one, prefer to keep Pandora’s box closed and leave the jury’s deliberations in the jury room where they properly belong. See RCr 10.04; Grider v. Commonwealth, Ky., 398 S.W.2d 496 (1966).
GRAVES, J., joins this opinion, concurring in part and dissenting in part.