Chapter 287

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287.5 Jury Poll

    287.5.1 Right To Polling Of Jury Following Verdict
    287.5.2 Return To Deliberations After Polling
    287.5.3 Defendant Must Be Given Reasonable Opportunity To Request A Jury Poll
    287.5.4 Jury Poll: Presence Of Counsel And Defendant
    287.5.5 Jury Poll: Informing Jurors That They May Change Their Vote When Polled But Not After
    287.5.6 Jury Poll: Judge's Discretion
    287.5.7 Jury Poll: Duty Of Court To Interrogate Juror Whose Answer Is Ambiguous Or Ambivalent
    287.5.8 Questionable Unanimity After Polling: Instruction Returning Jury To Juryroom
    287.5.9 Polling Of Jury Should Stop Immediately When Any Juror Disagrees With The Verdict
    287.5.10 Jury Poll: Must Be More Than "Mere Chorusing" Of What Was Already Announced
    287.5.11 Jury Poll: Sealed Verdict Is Invalidated If Juror Dissents When Verdict Is Returned

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287.5.1 Right To Polling Of Jury Following Verdict

PRACTICE NOTE: The defendant's right to have the jury polled is widely recognized. (See State v. Pockert (WA 1987) 746 P2d 839, 841 and cases cited therein.) Some courts have described the right to poll the jury as absolute. (See e.g., People v. Flynn (CA 1963) 217 CA2d 289, 294 [31 CR 651]; State v. Panker (KS 1975) 532 P2d 1073, 1075.) Other courts, however, have held that the decision to poll the jury is within the discretion of the trial judge. (See e.g., State v. Avcollie (CT 1982) 453 A2d 418, 426; Commonwealth v. Jones (MA 1977) 367 NE2d 631, 634; State v. Danskin (NH 1982) 451 A2d 396, 397-98; Trombley v. Langlois (RI 1960) 163 A2d 25, 29.) Even when the law gives a party the right to poll the jurors, such a poll may be restricted to their verdict, and not allowed on each element thereof. (People v. Arias (CA 1996) 13 C4th 92, 157 [51 CR2d 770].)

RESEARCH NOTES:

See Benchbook For U.S. District Court Judges [2.09.1 Verdict-Criminal: Reception Of Unsealed Verdict].

See also Manual On Recurring Problems In Criminal Trials [21a. Verdict: Polling The Jury].

RELATED FEDERAL MODEL INSTRUCTIONS:

See 1st Circuit Pattern Jury Instructions - Criminal 6.04.

See also 6th Circuit Pattern Jury Instructions - Criminal 9.05.

See also 7th Circuit Federal Jury Instructions - Criminal 7.01.

See also 7th Circuit Federal Jury Instructions - Criminal 7.02.

See also 7th Circuit Federal Jury Instructions - Criminal 7.07.

See also 8th Circuit Model Jury Instructions - Criminal 3.12.

See also 8th Circuit Model Jury Instructions - Criminal 10.03.

See also 8th Circuit Model Jury Instructions - Criminal 11.01.

See also 8th Circuit Model Jury Instructions - Criminal 11.02.

See also 9th Circuit Model Jury Instructions - Criminal 7.5.

See also 11th Circuit Pattern Jury Instructions - Criminal BI 12.

See also Federal Judicial Center, Pattern Criminal Jury INSTRUCTIONS 58.

See also Federal Judicial Center, Pattern Criminal Jury INSTRUCTIONS 59.

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287.5.2 Return To Deliberations After Polling

RATIONALE: If the jury poll indicates that the jury is not in agreement as to the verdict, it may be necessary to return the jury for additional deliberations. Any instruction in this regard could improperly coerce or mislead the jury.

POINTS AND AUTHORITIES: Under FRCP 31(d) the defendant has an absolute right to poll the jury to insure that the jury’s decision was in fact unanimous. (United States v. Nelson, 692 F2d 83, 84 (9th Cir. 1982); see also (United States v. Vollmer & Co., 1 F3d 1511, 1522 (7th Cir. 1993).) Failure to allow such a poll requires reversal. (United States v. Vollmer & Co., 1 F3d 1511, 1522 (7th Cir. 1993).) The trial court must, when requested, allow a reasonable amount of time to allow counsel to request a poll. (United States v. Marinari, 32 F3d 1209 (7th Cir. 1994); United States v. Randle, 966 F2d 1209 (7th Cir. 1992) [lapse of approximately 1.5 seconds was not sufficient time to permit counsel to request poll].)

The purpose of polling the jury is to determine if the verdict signed by the foreman is that of the individual jurors and not one that has been coerced or caused by mistake. (State v. Agtuca (WA 1974) 529 P2d 1159, 1163; see also State v. Taylor (WA 1987) 745 P2d 510, 511.) A verdict is not final until rendered in open court and received by the judge. (State v. Robinson (WA 1974) 523 P2d 1192, 1195 and cases cited therein; see also 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 7.06 [Disagreement Among Jurors] (1999).) Hence, when a juror disagrees with the verdict when polled the jury may be required to continue deliberations.

When the jury is returned to deliberation, the court should be careful to avoid language which may coerce the jury. (See generally NCJIC Chapter 286 [Deadlock].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 7.13].