Unanimity and Polling

Unanimity and Polling

Every juror who remains after any excusal under Rule 47(c) takes part in the verdict, because Rule 48(a) requires each juror to participate unless excused.¹ Two further provisions govern what those jurors must do together and how the court checks the result. Rule 48(b) fixes the vote: unanimity, unless the parties stipulate otherwise. Rule 48(c) lets the court test an announced verdict by asking each juror whether it is the juror's own.

The two rules guard against different failures. The first sets how much agreement a verdict requires. The second addresses the risk that an announced verdict does not match what each juror concluded, since the court and the parties hear only the announcement. A poll can answer that risk only while the jurors are still gathered, which is why the rule places it after the verdict is returned and before the jury is discharged.

Unanimous Verdicts

Rule 48(b) sets the federal civil vote in one sentence with one exception: unless the parties stipulate otherwise, the verdict must be unanimous and must be returned by a jury of at least 6 members.² The sentence measures two things. Unanimity measures how much agreement the verdict requires. The six-member minimum measures how many jurors must remain to return it, which completes the structure of Rule 48(a), where the jury begins with no fewer than six and no more than twelve members.³ Because the exception sits in the same sentence as the requirements, the power to change them belongs to the parties, who may agree to a different standard by stipulation.

A unanimity requirement lets a single juror prevent a verdict. The jurors who hold that power come from a selection system that, by statute, aims to produce juries “at random from a fair cross-section of the community.”⁴

That power has a price. A juror who will not join the others produces a deadlock, and a deadlock calls for a new trial. In an effort to reduce the costliness of jury trials, several state and federal courts have therefore modified the traditional jury to allow juries of fewer than twelve and nonunanimous verdicts. Smaller juries should be selected more quickly and deliberate for less time, and nonunanimous verdicts lessen the possibility of a deadlock and the new trial that follows it.⁵ Rule 48(b) balances the two interests by making unanimity the default and leaving the parties to trade it away. The parties can weigh the saving against the protection unanimity gives them in their own case.

The constitutional question sits behind the Rule and remains open. The Supreme Court has allowed civil juries to shrink, upholding six-member juries in Colgrove, but it has not yet ruled on nonunanimous civil verdicts.⁶ It is not clear whether the Seventh Amendment requires civil verdicts to be unanimous, and because Rule 48(b) already requires them, the Court has had no occasion to decide.⁷ The Rule keeps the question from arising in the ordinary case, since a federal court does not accept a nonunanimous verdict unless the parties have stipulated to one. An exam answer should therefore rest on Rule 48(b). To say that the Seventh Amendment requires unanimity overstates what the Court has decided, and to say that it permits any majority verdict overstates it in the other direction.

The criminal decisions supply context and no rule for civil cases. In Johnson v. Louisiana the Court upheld nonunanimous juries in a state criminal case.⁸ In Ramos v. Louisiana the Court changed course for criminal juries, which the Sixth Amendment governs, and held that a unanimous verdict is required for felony convictions, departing from earlier decisions that had tolerated nonunanimous state verdicts, among them Apodaca v. Oregon.⁹ Neither decision resolves the civil question. Johnson arose in a state criminal case, Ramos governs criminal juries under the Sixth Amendment, and the Court has not yet ruled on nonunanimous civil verdicts. An argument that the reasoning of Ramos reaches civil juries addresses an open question, and an exam answer should present it that way.

Because the Supreme Court has not spoken, the lower courts decide for themselves whether to modify the twelve-person, unanimous jury, and the character of the jury may vary with the rules of the court where suit is brought.¹⁰ Federal practice rests on Rule 48(b): unanimity by default, and departure only by the parties' stipulation.¹¹

The most tempting error on this topic treats a district's local rule as if it were the parties' choice.

The objection prevails because Rule 48(b) names one way to depart from unanimity, a stipulation by the parties, and a local rule is not a stipulation by anyone. A local rule that let the district lower the vote would hand the district a power the Rule gives only to the parties.¹²

Both verdicts fall short of unanimity, and both clear a lower threshold, so the vote count does not separate them. What separates them is who chose the threshold. The Rule gives that choice to the parties, and a stipulation is an agreement, which one side cannot supply alone. The text lets a stipulation displace either requirement, unanimity or the six-member minimum, so the parties' agreement is the one thing that lowers the verdict floor.¹³

Polling the Jury

Rule 48(c) supplies the test for an announced verdict. After a verdict is returned but before the jury is discharged, the court must poll the jurors individually on a party's request and may do so on its own.¹⁷ Polling means asking each juror, one at a time, whether the announced verdict is the juror's own. The two verbs create different duties. A party's request makes polling mandatory, so a judge who is asked cannot decline. The court's own initiative is discretionary, so a judge who senses hesitation in the jury box may poll unprompted but never has to poll when no party asks.

The device exists because a verdict reaches the courtroom as a single announcement. That announcement shows what the jury says, and it does not show what each juror thinks. A juror who gave way in the jury room, or who misunderstood what the verdict decided, can sit silent while the verdict is read. Individual questioning lets the attorneys make certain that each juror agrees with the verdict and understands it.¹⁸ The judge has a second tool, the power to select the type of verdict that should be rendered, which may limit the jurors' ability to ignore the controlling law.¹⁹

A poll measures the standard that Rule 48(b) set for the trial: unanimity, or whatever number of jurors the parties stipulated to. When the poll reveals a lack of unanimity, or a lack of assent by the number of jurors that the parties stipulated to, the court may direct the jury to deliberate further or may order a new trial.²⁰ The rule names those two responses and leaves the choice to the court. Further deliberation fits a disagreement that more discussion may resolve, and a new trial remains available when the jury cannot be brought to the required agreement. The rule provides no third path in which the court enters judgment on a verdict that failed the poll.

The timing language marks the last moment at which a poll can help. Until the jury is discharged, the jurors are still gathered and the court can send them back to deliberate. Once they are discharged, Rule 48(c) no longer applies by its terms. A familiar question is whether a party who doubts the verdict may demand a poll after the jurors have left, and the answer turns on one fact: whether the jury had been discharged.

Had the same lawyer voiced the same doubt before the judge dismissed the jury, the poll would have been mandatory. The doubt is identical in both scenes, and the discharge is the only fact that moved the answer.