Return to Practice Guide Table of Contents
PG IX(N) Verdict.
PG IX(N)(1) Polling Of Jury.
PC 1163 provides “When a verdict is rendered, and before it is recorded, the jury may be polled, at the request of either party, in which case they must be severally asked whether it is their verdict, and if any one answer in the negative, the jury must be sent out for further deliberation.”
People v. Masajo (1996) 41 CA4th 1335 held that the failure to poll the jury as required by PC 1163 does not constitute an error of federal constitutional dimension. Accordingly, where the record is devoid of any indication that the verdict was not unanimous or that any juror was coerced into voting for conviction, the failure to poll the jury does not require reversal.
If, during the polling, any juror states disagreement with the verdict, the jury must be returned to the jury room for further deliberations. (PC 1163.) The court’s decision to send the jury back for additional deliberations in this event must be upheld unless it is shown to be an abuse of discretion. (See People v. Wattier (1996) 51 CA4th 948; see also People v. Lessard (1962) 58 CA2d 447 [partial or defective polling not cognizable on appeal without objection].)
People v. Arias (1996) 13 CA4th 92, 157 held that the trial court may properly refuse a request to poll the jury regarding any special finding of fact or element of the verdict. The court suggested that if the defendant had sought to protect the record he could have requested a special finding in advance of the general verdict. (Arias, 13 CA4th at 58.)
The law gives a party the right to poll the jurors only on their verdict, not on each element thereof. (People v. Arias (1996) 13 CA4th 92, 157.)
When the jurors are present in the courtroom but not individually polled, the jurors still hear the verdict and have the opportunity to raise an objection. When the presentation is entirely eliminated, however, the jurors have no opportunity to “declare, up to the last moment, that he [or she] dissents from the verdict.” (Chipman v. Superior Court (1982) 131 CA3d 263, 266.) The declaration of the verdict in open court is essential to ensure a unanimous jury verdict, a fundamental right guaranteed by the California Constitution. (People v. Collins (1976) 17 CA3d 687, 693.)
The defendant is entitled to have the jury openly acknowledge its verdict and confirm that each juror was willing to stand by his or her individual vote. The error is structural and requires reversal. (See People v. Cahill (1993) 5 CA4th 478, 501-502.) “[I]n some instances [errors] may result in a ‘miscarriage of justice’ . . . without regard to the strength of the evidence presented at trial, because . . . they operate to deny a criminal defendant the constitutionally required ‘orderly legal procedure . . . .'” (Id. at p. 501; see People v. Thornton (1984) 155 CA3d 845, 859-860.)
PG IX(N)(2) Rendering Of Verdict.
A verdict is rendered when it has been received and read by the clerk, acknowledged by the jury, and recorded. (People v. Hendricks (1987) 43 CA3d 584, 597; People v. Bento (1998) 65 CA4th 179, 188.) Jury acknowledgment of the verdict in open court is essential to the validity of the verdict. (People v. Thornton (1984) 155 CA3d 845, 858.) If the jury merely returns a written verdict, but fails to unanimously endorse the verdict in open court, the verdict cannot normally be sustained based solely on the written form. (Ibid.; see People v. Green (1995) 31 CA4th 1001, 1009; People v. Mestas (1967) 253 CA2d 780, 786.) “A verdict must be rendered in open court.” (6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Judgment, § 44, p. 71.)
Acknowledgement of the verdict in open court may be performed by the foreperson on behalf of the entire jury. (§§ 1149, 1163, 1164, subd. (a); People v. Wiley (1931) 111 CA 622, 625; Stalcup v. Superior Court (1972) 24 CA3d 932, 936, disapproved on other grounds in People v. Dixon (1979) 24 CA3d 43, 53.) Additionally, upon request of either party, the jurors may be required to individually acknowledge the verdict through the process of individual polling. (§§ 1149, 1163, 1164.)
The acknowledgment requirement and the defendant’s right to request individual polling are founded on the constitutional right to a unanimous jury verdict. (People v. Thornton, supra, 155 CA3d at pp. 858-859.) During the acknowledgment and polling any juror is entitled to dissent from the verdict. (Id. at p. 859.) The process is designed to reveal mistakes in the signing of a particular form or “that one or more jurors acceded to a verdict in the jury room, but was unwilling to stand by it in open court.” (Ibid.)
