with whom
Berdon, J.,joins, dissenting. The “acquittal” instruction that the majority today *588requires was catalyzed by pattern jury instructions used by the federal courts in the 1960s1 and has since been upheld in many state and federal courts.2 To limit jury deliberations, in effect, to one charge, however, impedes the jury’s ability to reach a verdict and indiscriminately prevents desirable compromise. Desirable compromise is compromise that is allowed when the only alternatives are a hung jury, conviction of an offense more serious than some jurors reasonably believe the defendant committed, or acquittal of a guilty defendant. The “reasonable efforts” charge attempts to avoid coercive deliberations because it does not require any form of agreement on the charged offense. This instruction can improve jury deliberations and reduce the number of hung juries by offering the jury more decision alternatives earlier in deliberations and, thus, allowing jurors mutually to agree upon a verdict.
Promoting compromise was the original intent of the Allen charge. Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896).3 In the past we have *589condoned similar attempts to resolve jury deadlocks. State v. Ryerson, 201 Conn. 333, 514 A.2d 337 (1986); State v. O’Neill, 200 Conn. 268, 511 A.2d 321 (1986); State v. Smith, 49 Conn. 376 (1881). On occasion, these efforts may be too heavyhanded and give the court undue influence over the deliberative process. See People v. Gainer, 19 Cal. 3d 835, 856-57, 566 P.2d 997, 139 Cal. Rptr. 861 (1977); see also S. Schulhofer, “Jeopardy and Mistrials,” 125 U. Pa. L. Rev. 449, 487 (1977). It has been suggested that the acquittal instruction, particularly when given as a supplemental charge or after the jury has reached an impasse, has this affect as well. See, e.g., People v. Ogden, 35 Or. App. 91, 580 P.2d 1049 (1978). When it is given as part of the ini*590tial charge, the acquittal instruction precludes the jury from even discussing lesser included offenses until they agree to acquit on the charged offense. Jurors cannot then rectify their disagreements by compromising on the less serious offense that is composed of elements not disputed by the defendant or disagreed upon by the jurors. The acquittal instruction limits jury discretion, sets out a specific deliberation agenda and leaves jurors with no discretion or room for compromise. The result is often a hung jury followed by a mistrial. See discussion, infra.
“[Wjhere unanimity is required, the refusal of just one juror to acquit or convict on the greater charge prevents the rendering of a verdict on the lesser charge and causes a mistrial even in cases where the jury would have been unanimous on a lesser offense. Retrials, necessitated by hung juries, are burdensome to defendants, victims, witnesses and the court system itself. Successive trials can burden a defendant while allowing the State to benefit from ‘dress rehearsals.’ Additionally, structuring the jury’s deliberations to unnecessarily increase the likelihood of hung juries places an enormous financial strain on an already heavily burdened criminal justice system. A second trial exacts a heavy toll on both society and defendants by helping to drain state treasuries, crowding court dockets, and delaying other cases while also jeopardizing the interests of defendants due to the emotional and financial strain of successive defenses.” State v. Labanowski, 117 Wash. 2d 405, 420, 816 P.2d 26 (1991).
Although the available statistics are somewhat dated, reference to them is nevertheless useful. Between 5 percent and 12 percent of more than 200,0004 crimi*591nal jury trials for felony offenses in the United States each year end in hung juries. These numerous stalemates leave the parties in a state of flux and create the impression to our citizens that the judicial system does not work.5 As the court in Lahanowski recognized, a decision to reprosecute carries a heavy cost to our treasuries. Additionally, second trials add to already crowded court dockets and cause delays in other cases. Defendants suffer the emotional and financial strain of successive defenses, and prosecutors, who may benefit from the earlier “dress rehearsal,” may instead be left with an even more difficult case to prosecute successfully because of witnesses who quite naturally can die, disappear or forget their testimony.
The reasonable efforts instruction can improve jury deliberations and reduce the number of hung juries by, in effect, offering the jury more options. Research in two areas—increasing the number of options open to jurors and allowing nonunanimous decisions—support the conclusion that the reasonable efforts charge can aid juries in reaching valid and supported verdicts. Several studies have concluded that lesser included offense deliberations lead to compromise on a lesser included offense.6 More options change the substance of delib*592eration and can lead to an otherwise unobtainable unanimity. The reasonable efforts instruction can serve to reduce the number of hung juries by promoting discussion on more ways to reach a verdict and by allowing the jury to agree on an offense with fewer elements. With the reasonable efforts instruction, “[t]he jurors favoring the lesser will not vote for the greater, but those who favor the greater will still vote for conviction when the jury moves on to consider the lesser; hence the deadlock is dissolved, and there is no mistrial.” Jones v. United States, 544 A.2d 1250, 1253 (D.C. App. 1988). Moreover, just as some studies have concluded that changing the rule to allow nonunanimous final verdicts can reduce the number of hung juries,7 so too can removing the requirement that jurors must unanimously acquit of the greater offense before they can consider the lesser offense.
In assessing the costs and benefits of the reasonable efforts instruction as opposed to the acquittal first instruction, reference to double jeopardy law, which *593also involves the question of retrials, is helpful. The defendant’s interest in concluding his confrontation with society is compelling. Crist v. Bretz, 437 U.S. 28, 35, 98 S. Ct. 2156, 57 L. Ed. 2d 24 (1978) (“[t]he reason . . . that jeopardy attaches when the jury is empaneled and sworn lies in the need to protect the interest of an accused in retaining a chosen jury” [emphasis added]). A second trial is permissible if the jury impaneled for the first trial is unequivocally unable to agree and has been discharged, even over the defendant’s objection. Downum v. United States, 372 U.S. 734, 735-36, 83 S. Ct. 1033, 10 L. Ed. 2d 100 (1963); State v. Van Sant, 198 Conn. 369, 380, 503 A.2d 557 (1986). Although a hung jury is clearly a proper basis for a retrial, and satisfies the “manifest necessity”8 test so that the defendant’s double jeopardy protection is not violated, the result is nevertheless undesirable. The use of increasingly scarce judicial resources to retry a defendant whose case could have already been fairly resolved makes little sense. The defendant’s right to have his trial completed by “his chosen tribunal” is zealously protected, but will be “subordinated to the public’s interest in fair trials designed to end in just judgments. ” (Emphasis added.) Wade v. Hunter, 336 U.S. 684, 689, 69 S. Ct. 834, 93 L. Ed. 974 (1949); State v. Van Sant, supra. “Manifest necessity will prompt a mistrial only when the interests of society outweigh the defendant’s interest in completing his trial, and only if there is a high degree of *594necessity to declare one.” (Internal quotation marks omitted.) State v. Daniels, 207 Conn. 374, 394-95 n.12, 542 A.2d 306 (1988), cert. denied, 489 U.S. 1069, 109 S. Ct. 1349, 103 L. Ed. 2d 817 (1989). By providing the jury with the reasonable efforts instruction, the court can avoid the necessity to discharge a jury without any verdict.
Although juries are often instructed on lesser included offenses, the majority’s imposition of the acquittal first rule effectively prohibits them from actually considering the lesser included offenses. This interferes with the jury’s fact-finding function and reflects a lack of confidence in jurors and in their ability to handle discretion. This contradicts what the United States Supreme Court said in Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968). In holding that the sixth amendment right to a jury trial applied to state criminal trials, the court saw the jury as simultaneously fulfilling several roles. Not only does it find facts, but it is also there to “prevent oppression by the Government” and to serve as “an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.” Id., 156.9 The reasonable efforts charge provides structure to the deliberative process and allows *595the jury to perform its fact-finding function in an orderly fashion. See State v. Gannon, 75 Conn. 206, 229-30, 52 A. 727 (1902).
First, the jury is required to put its energy into attempting to reach a verdict on the greater offense. Only after reasonable efforts have been expended will the jury be allowed to proceed to consider the lesser included offense. Thus, undivided attention is first given by the jury to the greater offense with structure provided by the court. Everything the majority is and should be concerned about is provided, along with permission to use the discretion we tell jurors they possess. State v. Allen, 301 Or. 35, 717 P.2d 1178 (1986). The third and fourth prongs of the Whistnant test,10 which was recently discussed by this court in State v. Rasmussen, 225 Conn. 55, 67, 621 A.2d 728 (1993), and State v. Edwards, 214 Conn. 57, 64, 570 A.2d 193 (1990), ensure the integrity of a conviction of a lesser included offense as one having been reached accurately and rationally.
The cases relied upon by the majority, which it concedes are not dispositive, merely confirm that a nonunanimous jury cannot render a finding of fact. State v. Aparo, 223 Conn 384, 388, 614 A.2d 401 (1992); State v. Daniels, supra, 388. The majority suggests, therefore, that without a unanimous acquittal of the greater offense, the defendant could be later retried for that greater offense when the conviction of the lesser included offense has been reversed on appeal.11 I have two problems with the majority’s approach. *596First, the issue of whether the implied acquittal doctrine (that bars the state from reprosecuting a defendant on a charge of which he or she has been acquitted) would protect the defendant whose jury had not been given the unanimous acquittal charge is not before us, and whether this issue is raised by the state as a threat or notice of consequence, it nevertheless merits greater discussion than this vehicle affords. The second point concerning these cases, as well as State v. Stankowski, 184 Conn. 121, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981), is that they are of limited value in the context of the case before us because all three merely state the obvious-jury unanimity is required in order to be able to state that a particular fact has been found. The defendant concedes that with a reasonable efforts instruction, the only way to ensure when he is convicted of the lesser included offense that he has first been unanimously acquitted of the greater offense is by polling the jury. Practice Book § 869.12 The unanimous acquittal charge provides automatic assurance that a defendant convicted of a lesser included offense was first unanimously acquitted of the greater. Although that kind of instruction addresses one area of concern, as stated above, it does not do enough to promote compromise, discourse and resolution.
Other courts have rejected the acquittal first instruction because it “ ‘improperly interferes with the jury’s deliberations.’ ” People v. Hurst, 396 Mich. 1, 10, 238 N.W.2d 6 (1976); see, e.g., Jones v. United States, *597supra; State v. Ferreira, 8 Haw. App. 1, 791 P.2d 407, cert. denied, 71 Haw. 668, 833 P.2d 901 (1990); People v. Handley, 415 Mich. 356, 329 N.W.2d 710 (1982); State v. Thomas, 40 Ohio St. 3d 213, 533 N.E.2d 286 (1988), cert. denied, 493 U.S. 826, 110 S. Ct. 89, 107 L. Ed. 2d 54 (1989); State v. Allen, supra. Several courts have endorsed an instruction that allows the jury to consider the defendant’s guilt of the lesser included offense if they are unable to agree on guilt of the charged offense. State v. Ferreira, supra; State v. Korbel, 231 Kan. 657, 647 P.2d 1301 (1982); People v. Handley, supra; People v. Hurst, supra; State v. Thomas, supra; State v. Allen, supra; State v. Labanowski, supra. Others have allowed juries that report they are deadlocked on the greater offense to consider lesser offenses and have approved the reasonable efforts charge when the juries had received no prior pertinent instructions or when they had initially been instructed not to consider any lesser offenses until they first acquitted the defendant of the greater offense. United States v. Roland, 748 F.2d 1321, 1325-26 (2d Cir. 1984); United States v. Smoot, 463 F.2d 1221, 1222-24 (D.C. Cir. 1972); Jones v. United States, supra, 1254; Carmichael v. United States, 363 A.2d 302, 303-304 (D.C. App. 1976).
In its seminal decision, the Court of Appeals for the Second Circuit endorsed the modem trend to give juries the option of considering lesser offenses absent acquittal of the greater offense. “An instruction permitting the jury to move on to the lesser offense if after all reasonable efforts it is unable to reach a verdict on the greater . . . has advantages and disadvantages to both sides .... It facilitates the Government’s chances of getting a conviction for something, although at the risk of not getting the one that it prefers. And it relieves the defendant of being convicted on the greater charge just because the jury wishes to avoid *598a mistrial, but at the risk of a conviction on the lesser charge which might not have occurred if the jury, by being unable to agree to acquit on the greater, had never been able to reach the lesser.” United States v. Tsanas, 572 F.2d 340, 346 (2d Cir.), cert. denied, 435 U.S. 995, 98 S. Ct. 1647, 56 L. Ed. 2d 84 (1978). Both the Eighth Circuit Court of Appeals; Catches v. United States, 582 F.2d 453 (8th Cir. 1978); and the Ninth Circuit Court of Appeals; United States v. Jackson, 726 F.2d 1466 (9th Cir. 1984); have approved this approach.
The Second Circuit Court of Appeals leaves the choice to the defendant as to whether he would prefer the “reasonable efforts” charge or the “acquittal first” instruction.13 This was the approach endorsed by the majority in the Appellate Court opinion. State v. Sawyer, 29 Conn. App. 68, 74-76, 614 A.2d 471 (1992). I agree with the concurring opinion, however, that the reasonable efforts instruction is preferable and should be given in all matters in which there is one or more lesser included offenses. Id., 78-79 {Freedman, J., concurring).
Both sides stand to give up something with a reasonable efforts charge. The state may lose its opportunity to obtain a conviction of the greater offense in those cases where the acquittal first instruction might have helped the majority voting to convict of the greater offense to prevail upon those members of the minority voting to acquit. See note, “Improving Jury Deliberations: A Reconsideration of Lesser Included Offense Instructions,” 16 U. Mich. J.L. Ref. 561, 571 n.40 (1983). The defendant is equally disadvantaged because *599consideration of lesser included offenses, when the jury-has not been able to acquit him first of the greater, might cause him to be convicted of that lesser offense, when he would otherwise be found not guilty. See, e.g., N. Vidmar, “Effects of Decision Alternating On Verdicts and Social Perceptions of Simulated Jurors,” 22 J. Personality and Soc. Pyschology 211, 215 n.9 (1972) (finding that mock jurors with a choice of first degree murder or not guilty convicted in 46 percent of trials and acquitted in 54 percent while mock jurors allowed to consider second degree murder and manslaughter as choices in addition to guilty of first degree murder and not guilty acquitted in only 8 percent of cases). We have said that it is for the trial judge to decide whether to provide a lesser included offense instruction over objection when it believed it was in the interest of justice to do so. No one side has the exclusive right in this regard. State v. Asherman, 193 Conn. 695, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985).14 Similarly, the decision to give the reasonable efforts charge does not belong to either side. Because I believe it is the fairer instruction, I would mandate it in each case.
It is important to remember that any jury chosen to decide a case was selected by both sides, and central to the instruction is the prerequisite that the jury must first attempt to reach a verdict on the greater offense, before it may even consider the lesser. This-component is not left to the jury’s discretion, it is mandated. More*600over, “jurors are presumed to follow the instructions given by the judge.” State v. Williams, 202 Conn. 349, 363-64, 521 A.2d 150 (1987). Unlike those jurisdictions that allow simultaneous consideration of the greater and lesser offenses, the instruction approved by the Appellate Court permits a jury to proceed to a lesser only after attempting to arrive at a verdict on the offense charged by the state. This stringent requirement guarantees that the charge selected by the prosecutor will receive the full and fair adjudication to which the state is entitled and protects society’s interest in having one accused of a specific crime convicted of that crime when the proof so warrants. This method acknowledges the jury’s exhaustive efforts to reach a verdict on the greater charge, and recognizes that the state is entitled to thorough consideration by the jury of the greatest charge. There is nothing about this approach that either “dilutes” the jury’s role or gives “shortshrift” to the charged offense.
In this case, although the trial court provided lesser included offenses, I agree with the majority opinion of the Appellate Court that it is “an empty gesture” to provide the option when the court simultaneously set up a bar of the acquittal first requirement. State v. Sawyer, supra, 76.1 also agree with the Appellate Court’s conclusion that “[t]he acquittal first instruction given in this case deprived the defendant of having the jury consider manslaughter in the second degree just as effectively as if the court had declined to instruct on that charge. Because the trial court required that the jury overcome a preliminary hurdle—-a unanimous acquittal on manslaughter in the first degree before it could consider the lesser included offense of manslaughter in the second degree—it deprived the defendant of his right to have the jury consider this lesser included offense.” Id., 77.
Accordingly, I would affirm the judgment of the Appellate Court.
W. Mathes & E. Devitt, Federal Jury Practice and Instructions (1965) § 15.10.
See, e.g., United States v. Moccia, 681 F.2d 61 (1st Cir. 1982); Lindsey v. State, 456 So. 2d 383 (Ala. Crim. App. 1983), aff’d, 456 So. 2d 393 (Ala. 1984), cert. denied, 470 U.S. 1023, 105 S. Ct. 1384, 84 L. Ed. 2d 403 (1985); State v. Wussler, 139 Ariz. 428, 679 P.2d 74 (1984_); Lamar v. State, 243 Ga. 401, 254 S.E.2d 353, appeal dismissed, 444 U.S. 803, 100 S. Ct. 23, 62 L. Ed. 2d 16 (1979); State v. Van Dyken, 242 Mont. 415, 791 P.2d 1350, cert. denied, 498 U.S. 920, 111 S. Ct. 297, 112 L. Ed. 2d 251 (1990); People v. Boettcher, 69 N.Y.2d 174, 505 N.E.2d 594, 513 N.Y.S.2d 83 (1987); State v. Wilkins, 34 N.C. App. 392, 238 S.E.2d 659, cert. denied, 294 N.C. 187, 241 S.E.2d 516 (1977); Commonwealth v. Hart, 388 Pa. Super. 484, 565 A.2d 1212 (1989), appeal denied, 525 Pa. 642, 581 A.2d 569 (1990); State v. Clayton, 658 P.2d 624 (Utah 1983); State v. McNeal, 95 Wis. 2d 63, 288 N.W.2d 874 (1980).
The “Allen instruction,” sometimes referred to as the “dynamite charge,” originated in Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896). The United States Supreme Court, in upholding the conviction, summarized the trial court’s instruction: “[I]f much the larger number were for conviction, a dissenting juror should consider whether *589his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, upon the other hand, the majority was for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority.” Id., 501. The instruction produced verdicts, and thus, was rapidly accepted.
In more recent years many courts have limited or abandoned the Allen instruction. The Third Circuit, Seventh Circuit and District of Columbia Courts of Appeals have held that the instruction is coercive for almost all purposes. See United Stales v. Silvern, 484 F.2d 879 (7th Cir. 1973); United States v. Thomas, 449 F.2d 1177 (D.C. Cir. 1971); United States v. Fioravanti, 412 F.2d 407 (3d Cir.), cert. denied sub nom. Panaccione v. United States, 396 U.S. 837, 90 S. Ct. 97, 24 L. Ed. 2d 88 (1969). Other federal courts of appeals have limited the instruction by preventing judges from giving it too early in deliberations; see United States v. Contreras, 463 F.2d 773 (9th Cir. 1972); by requiring an additional instruction that tells jurors not to surrender honest, conscientious beliefs; see United States v. Mason, 658 F.2d 1263 (9th Cir. 1981); or by not permitting judges to give it more than once. See United States v. Bailey, 480 F.2d 518 (5th Cir. 1973). It has been noted that nearly one half of the states disapproved Allen-type instructions, in whole or in part. See People v. Gainer, 19 Cal. 3d 835, 566 P.2d 997, 139 Cal. Rptr. 861 (1977) (citing cases from twenty-two other states and analyzing the debate over the Allen instruction); see generally 8A J. Moore, Federal Practice (2d Ed. 1993) § 31.04[2]; P. Marcus, “The Allen Instruction in Criminal Cases: Is the Dynamite Charge About To Be Permanently Defused?” 43 Mo. L. Rev. 613 (1978); comment, “An Argument for the Abandonment of the Allen Charge in California,” 15 Santa Clara L. Rev. 939 (1975).
The “Chicago Jury Project” study found hung juries occur in 5.5 percent of the cases studied. The study was based on court records, post-deliberation interviews, simulated cases before experimental juries, and *591the recording of a limited number of actual jury deliberations. This statistic, however, was based upon court records. H. Kalven & H. Zeisel, The American Jury (1966) p. 57.
In a second study, based on three years of results of trials in California’s ten largest metropolitan areas, it was determined that juries hung 12.2 percent of the time. L. Flynn, “Does Justice Fail When the Jury is Deadlocked?” 61 Judicature 129, 130 (1977).
The number of jury trials per year for felonies is only a rough estimate derived from surveys of local courts’ correspondence with state officials, projections and reports from judicial conferences. H. Kalven & H. Zeisel, supra, pp. 501-509.
G. Jacobsohn, “The Unanimous Verdict: Politics and the Jury Trial,” Wash. U. L.Q. 39, 56 (1977).
See N. Vidmar, “Effects of Decision Alternatives On the Verdicts and Social Perceptions of Simulated Jurors,” 22 J. Personality & Soc. Psychol*592ogy 211 (1972) (In 54 percent of the mock trials, the jury acquitted when the choice in a homicide trial was guilty of first degree murder or not guilty. When the jury had four options, the jurors returned verdicts of first degree murder in 8 percent of the cases, second degree murder in 64 percent, manslaughter in 21 percent, and not guilty in 8 percent). Many others have replicated aspects of Professor Vidmar’s study and found analogous results. See V. Hamilton, “Obedience and Responsibility: A Jury Simulation,” 36 J. Personality & Soc. Psychology 126 (1978); Kaplan & Simon, “Latitude and Severity of Sentencing Option, Race of the Victim and Decisions of Simulated Jurors: Some Issues Arising from the Algiers Motel Trial,” 7 Law & Soc’y Rev. 87 (1972); C. Roberts, M. Hoffman & W. Johnson, “Effects of Jury Deliberation On Verdicts and Social Perceptions of Simulated Jurors—Vidmar Revisited,” 47 Perceptual & Motor Skills 119 (1978).
See H. Kalven & H. Zeisel, The American Jury (1966) p. 461; see also M. Saks, Jury Verdicts (1977) p. 105; R. Foss, “Structural Effects in Simulated Jury Decision Making,” 40 J. Personality & Soc. Psychology 1055 (1981). I do not advocate nonunanimous verdicts. Moreover, such a verdict would be unconstitutional. See Conn. Const., art. I, § 19, as amended in 1972; General Statutes § 54-82 (2); Practice Book § 867. There is nevertheless a lesson to be learned.
“Manifest necessity” is a central component of double jeopardy law. “ ‘[T]he law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. . . . To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes . . . .’ United States v. Perez, [22 U.S. (9 Wheat.) 579, 580, 6 L. Ed. 165 (1824)].” (Emphasis added.) State v. Van Sant, 198 Conn. 369, 378, 503 A. 2d 557 (1986).
Rarely do juries reach unmerited compromise. It is likely, however, that any verdict of guilty of a lesser included offense that was reached for reasons unrelated to the merits of the case was done in the name of equity. “A jury reflects the attitudes and mores of the community from which it is drawn. It lives only for the day and does justice according to its lights. The group of twelve, who are drawn to hear a case, makes the decision and melts away. It is not present the next day to be criticized. It is the one governmental agency that has no ambition. It is as human as the people who make it up. It is sometimes the victim of passion. But it also takes the sharp edges off a law and uses conscience to ameliorate a hardship. Since it is of and from the community, it gives the law an acceptance which verdicts of judges could never do.” Justice William O. Douglas, The Anatomy of Liberty (1954).
State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980).
Although the majority does not specify that the second trial could only follow the defendant’s successful appeal of the conviction of the lesser offense, it obviously recognizes the double jeopardy bar against successive prosecutions unless the defendant waived that protection by his appeal. See State v. Lonergan, 213 Conn. 74, 566 A.2d 677 (1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2586, 110 L. Ed. 2d 267 (1990).
Practice Book § 869 provides: “After a verdict has been returned and before the jury have been discharged, the jury may be polled at the request of any party or upon the judicial authority’s own motion. The poll shall be conducted by the clerk of the court by asking each juror individually whether the verdict announced is his verdict. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or they may be discharged.”
“Among the decisions from circuit courts that have adopted the optional approach are: United States v. Jackson, 726 F.2d 1466, 1469-70 (9th Cir. 1984); Pharr v. Israel, 629 F.2d 1278, 1282 (7th Cir. 1980); Catches v. United States, 582 F.2d 453, 459 (8th Cir. 1978); Wright v. United States, 588 A.2d 260, 262 (D.C. App. 1991).” State v. Sawyer, 29 Conn. App. 68, 73 n.4, 614 A.2d 471 (1992).
As the state argued in State v. Asherman, 193 Conn. 695, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985), the importance of the state of mind of one accused of a homicide is “so great that a factfinder ought to be unrestricted, except by reasonable construction of the evidence, in deciding, upon the evidence presented, what crime was committed. Indeed, any other result would undermine both the defendant’s and the state’s right to a fair trial by limiting the factfinder’s function of determining questions of fact.” State v. Asherman, March Term, 1984, Rec. & Briefs, State’s Brief, p.35.