Jury Trial Issues -- Polling the Jury in a Criminal Case

By John DiMotto

One of the most important rights that any party involved in litigation has is the right to a jury trial. The beauty of the American system of justice is the right to have one's case decided by one's peers. 6 or 12 people from one's community are empanelled to:

1) hear all the evidence;

2) decide what the fact actually are by assessing the credibility of witnesses and the weight of the evidence;

3) apply the law, the legal principles applicable to the facts;

4) render a verdict by answering a question or questions on a Verdict/Special Verdict form.

The American Jury System is the envy of the world. Judges in other jurisdictions "thirst" for our system of justice. (Many judges from Wisconsin, including myself and my wife, Judge Jean DiMotto, have gone to countries throughout the world to discuss our justice system. In every country their judges have been on the edge of their seats taking in what it really means to "do justice.")

Today, I want to start on the "back end" of a jury trial -- taking the verdict in a criminal case.

When a jury arrives a a verdict, the jury is brought into the courtroom and the verdict is read in open court either by either the Court Clerk, the Judge or the Jury Foreperson. After it is read, it is customary for the judge to collectively ask the jury if what was read is their verdict. After the collective polling, a defendant has the right to have the jurors individually polled - although he has no right to cross examine them on their verdict. see State v. Cartagena, 140 Wis.2d 59 (Ct. App. 1987). Collective polling is not sufficient if the defendant wants individual polling. see State v. Wojtalewicz, 127 Wis.2d 344 (Ct. App. 1985).

The purpose of polling a jury is to ensure that the verdict, as read, is the verdict of each and every one of the twelve jurors - to test uncoerced unanimity of the verdict. see State v. Kircher, 189 Wis.2d 392 (Ct. App. 1994). An ancillary purpose of individual polling is to allow jurors to change their mind. see U.S. v. Shepard, 576 F.2d 719 (7th Cir. 1978). The act of polling the jury safeguards the right to a unanimous verdict by giving each jury the opportunity to dissent although previously agreeing or to state that assent was merely an accommodation. A juror may dissent at any time before the verdict is received and properly recorded.

The right to poll a jury is a corollary to the right to a unanimous verdict. see State v. Weise, 162 Wis.2d 507 (Ct. App. 1991). It is a significant right. see State v. Behnke, 155 Wis.2d 796 (1990). Because the return of a verdict is a critical stage of the proceedings, a defendant has the right to counsel at that time. In fact, where defense counsel's absence cause a defendant to lose the right to poll a jury, the conviction must be reversed. see State v. Smith, 51 Wis. 615 (1881).

The decision whether to poll is one that is delegated to defense counsel. However, the failure to request polling the jury will almost always result in a claim of ineffective assistance of counsel. Most judges will sua sponte poll the jury to ensure unanimity.

The trial court should carefully and delicately question a juror who during polling creates some doubt as to his/her vote to see if there is, in fact, doubt. If there is doubt, the court has three options:

1) Direct jury to retire to jury room and resume deliberations.

2) Declare a mistrial.

3) Carefully interrogate the juror about ambiguous or ambivalent assent.

The threshold question in polling is whether there was assent. If not, court then must determine whether further deliberations are necessary. see State v. Duke, 303 Wis.2d 175 (Ct. App. 2007). The court is only to question regarding whether the juror agrees or not. The court cannot go beyond the issue of "assent." see State v. Raye, 281 Wis.2d 339 (2005).

The right to poll a jury is an absolute right. It must be honored by the trial court!