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Improving the Deliberating Process
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41
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WHEN DELIBERATING JURORS IN A CIVIL CASE REPORT THAT THEY CANNOT REACH A VERDICT, THE JUDGE SHOULD TAKE ADDITIONAL STEPS AFTER CONFIRMING THAT THE JURY IS, IN FACT, DEADLOCKED. THE JUDGE SHOULD INVITE THE JURY TO STATE, IN WRITING, THE POINTS OF LAW OR EVIDENCE UPON WHICH IT CANNOT AGREE AND DESIRES HELP. THE JUDGE SHOULD DISCUSS THE JURY’S RESPONSE WITH COUNSEL BEFORE DECIDING HOW TO PROCEED. THE JUDGE CAN PROVIDE ADDITIONAL INSTRUCTIONS, PERMIT ADDITIONAL CLOSING ARGUMENTS, REREAD OR REPLAY TESTIMONY, REOPEN THE TRIAL FOR MORE EVIDENCE, OR ALLOW A COMBINATION OF THESE. IN COMMUNICATING WITH JURORS, THE JUDGE MUST AVOID ANY APPEARANCE OF COERCING A VERDICT.
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Jury at
an Impasse
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Traditionally, when a deliberating jury in a civil case reports that it is unable to reach a verdict, the trial judge asks a series of questions, to be answered “yes” or “no,” aimed at discovering whether the jury is actually deadlocked. After the jury confirms it is deadlocked, the court declares a mistrial, usually without further dialogue with jurors and without offering any assistance. The trial lawyers are left to wonder about, and perhaps later investigate, what caused the hung jury and what they might do differently at a retrial.
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Offering
Assistance
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Once the court has determined that the jury is deadlocked, the judge should ascertain reasons for the impasse before declaring a mistrial. Once the jury has articulated its difficulties, the judge should take appropriate steps to assist the jury. Such steps may include clarifying instructions,5 allowing additional arguments, rereading or replaying testimony, and allowing supplemental evidence where appropriate. See Appendix 7 for a sample instruction to use in offering assistance to a jury at an impasse.
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Supplemental
Evidence
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The Commission recognizes that reopening a trial to allow supplemental evidence and argument is a departure from common practice. Concern that this gives the plaintiff an unfair second opportunity is unfounded. At the point the court determines that the jury is deadlocked, the plaintiff has the opportunity for a retrial. This practice of reopening for additional evidence and argument is likely to be used infrequently, offers the opportunity to respond to jurors questions in the first trial, and potentially saves the time and expense of a retrial.
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Jury’s Request to
Rehear or Replay Testimony
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For a discussion of the safeguards that trial judges should use when allowing jurors to rehear or replay testimony, see Recommendation 40.
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Caution
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It is important to be careful in all comments to the jurors to avoid any appearance of coercion or pressure.
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Civil Cases
Only
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This recommendation is limited to civil cases. The Jury Commission considered, but rejected, extending this recommendation to criminal cases.
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References:
G. Thomas Munsterman, et al., Jury Trial Innovations, 191-193 (3rd ed. 1997).
B. Michael Dann, “‘Learning Lessons’ and ‘Speaking Rights’: Creating Educated and Democratic Juries”, 68 Ind. L. J. 1269-1277 (1993).
Fernandez v. United States, 329 F.2d 899 (9th Cir.), cert. denied 379 U.S. 832 (1964) (trial judges have discretion to reopen a case during deliberations).
United States v. Burger, 419 F.2d 1293 (5th Cir. 1969) (same holding).
Henry v. United States, 204 F.2d 817 (6th Cir. 1953) (same holding).
People v. Scott, 465 N.Y.S.2d 819 (1983) (same holding).
State v. Ransom, 56 Wn. App.712, 785 P.2d 469 (1990). See footnote 5.
State v. Iverson, 73 Wn.2d 973, 442 P.2d 243 (1998). See footnote 5.
CR 51(i), CrR 6.15(f). See footnote 5.
WPI 6.14, WPIC 4.70 (pattern jury instructions setting out the series of questions the judge asks the presiding juror to determine whether the jury is deadlocked).
WPI 6.13 and WPIC 4.68. See footnote 5.
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5 State v. Ransom, 56 Wn. App. 712, 785 P.2d 469 (1990) (Trial judge has discretion to further instruct jury, once deliberations have begun, but it is error to instruct on new theory of liability).
State v. Iverson, 73 Wn. 2d 973, 442 P.2d 243 (1998) (Grant of a new trial appropriate where the trial judge orally instructed jurors to try to "harmonize" their views, judge was aware of the jurors numeric voting split, and judge did not follow procedures in CR 51(i)).
CR 51(i)and CrR 6.15(f) set out the procedure the court must follow to instruct the jury further once deliberations have begun.
WPI 6.13 and WPIC 4.68 should be given.
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