Requirements for a Valid Verdict

A jury that reaches a decision has not necessarily returned a valid verdict. Federal Rule of Civil Procedure 48(b) adds two conditions: unless the parties stipulate otherwise, the verdict must be unanimous and must be returned by a jury of at least six members.¹ The rule speaks of “the verdict” without regard to form, so the same conditions govern a general verdict, a special verdict, and a general verdict accompanied by written questions under Rule 49(b).² Form determines how the jury reports its decision; Rule 48 determines whether the report counts. A carefully drafted special verdict signed by five of six jurors fails the rule when the parties have made no agreement, while a bare general verdict joined by all six passes.

Four questions organize this unit. Must every juror agree? How small may the jury be when it returns the verdict? Who may change those answers? And how does the court confirm, before the jury is discharged, that the announced verdict belongs to each juror? The first three set conditions of validity, and the fourth tests whether the conditions were met in fact. The discussion covers the federal rule. State courts apply their own law, and the number of jurors in state trials, for example, varies from state to state.³

Unanimity

Unanimity means that every juror who takes part in the verdict joins it. Rule 48(a) requires each juror to participate unless the court has excused that juror under Rule 47(c),⁴ so the jurors who must agree are all those not excused, and a verdict that even one of them declines to adopt fails Rule 48(b).⁵ The rule names no majority threshold and no supermajority, and it sets no period of deliberation after which fewer votes will do. Only the parties can relax the requirement. A judge who receives a lopsided but divided verdict therefore has no discretion to accept it, because unanimity is a condition of validity and not a preference.

Exam stems tend to bury the issue in a vote count. A question reports a federal civil jury's seven-to-one verdict for the plaintiff, mentions the tally almost in passing, and asks whether judgment may be entered.

Seven of eight looks decisive because ordinary votes are settled by majority. Rule 48(b) asks a different question: whether the jury as a body reached a single verdict. The eighth juror's refusal means it did not. Had that juror joined the others, eight to zero would have given the court a verdict it could receive. What the court may do with a divided jury, including sending the jurors back to deliberate, belongs to the discussion of polling below.

Unanimity gives the parties a verdict that every participating juror holds as his or her own. The price is the hold-out: one or two jurors who will not agree can prevent any verdict, and avoiding mistrials of that kind is the interest a Supreme Court plurality identified when it allowed 10–2 criminal convictions in state courts.⁶ Rule 48(b) strikes the balance by making unanimity the default and letting the parties agree to something less, an exception taken up below.

Two outside sources tempt students to depart from the rule. The first is state practice. A stem that mentions a state's willingness to accept majority verdicts describes state trials, and it does not alter Rule 48(b) in a federal civil trial. The second is the criminal jury. Federal Rule of Criminal Procedure 31(a) also requires a unanimous verdict,⁷ but it is a separate rule, and arguments about the criminal jury do not replace the text of Rule 48(b) in a civil case.

The constitutional history explains why the rule's text, and not the Constitution, is the safe answer. For a long time courts treated unanimity as an essential feature of the jury the Seventh Amendment preserves. A dissent in Johnson v. Louisiana (1972), a criminal case, recalled that the same assumption had been made about the civil jury and that the Court had held a unanimous civil jury to be a constitutional requirement in American Publishing Co. v. Fisher.⁸ The assumption has since weakened. The Supreme Court has upheld local rules providing for civil juries of fewer than twelve, whether a unanimous civil verdict is constitutionally required is now a matter of doubt, and Rule 48, as amended in 1991, requires a unanimous verdict unless the parties stipulate otherwise.⁹ A statement that the Seventh Amendment requires unanimity therefore asserts something current law treats as open, while a statement that Rule 48(b) requires unanimity absent a stipulation reports the rule that governs.

Two facts in a stem decide the issue: the vote and any stipulation. When fewer than all the jurors agree, look for a sentence recording the parties' agreement to accept less. Exam facts rarely supply one, and without it the default controls. The rule names no other source of a departure.

Minimum Jury Size

Rule 48 sets a jury's size at two moments. Rule 48(a) governs the start of trial: the jury must begin with at least six and no more than twelve members, and each juror must participate in the verdict unless excused under Rule 47(c).¹¹ Rule 48(b) governs the end: the verdict must be returned by a jury of at least six members unless the parties stipulate otherwise.¹² A jury of any size from six to twelve passes the first test, and a jury of six or more passes the second. Because the tests apply at different times, a jury that was lawfully seated can still produce an invalid verdict if enough jurors fall away before it reports.

Jurors can fall ill or be excused over the course of a trial, so a court that seats exactly six leaves no margin, since the loss of one juror drops the jury below the floor. Federal courts therefore normally seat more than six, so that at least six remain at the time of verdict even if some jurors leave. If fewer than six remain at the time of verdict, the court must declare a mistrial unless both parties agree to continue.¹³ A mistrial ends the trial without a verdict, and the only exception is the parties' own agreement, which the next subsection takes up.

Unanimity among the five in the second hypothetical cannot save the verdict, because the two conditions measure different things. The size floor counts the jurors present at the verdict, and the unanimity default asks whether all of them joined it. Rule 48(a) requires every juror who has not been excused to participate,¹⁴ so the floor never lowers the number who must agree.¹⁵ If eight jurors remain, all eight must join: a verdict from six of the eight clears the size floor and still fails unanimity.

The floor reflects what a jury needs to do its work. The Court has described the required number as one large enough to facilitate group deliberation, combined with a likelihood of obtaining a representative cross-section of the community. It acknowledged that at some point the number becomes too small to serve those goals, but found no basis in the data then available for concluding that six is too few.¹⁶ Rule 48(b) applies the floor at the verdict as well as at the outset, so a jury that begins at twelve cannot return a valid verdict with four jurors left unless the parties agree to continue.

Whether the Constitution demands twelve jurors is a separate question, and Colgrove v. Battin answered it. The Court there considered a six-member civil jury in federal district court and held that it violates neither the Seventh Amendment nor any federal statute.¹⁷ It began with the Amendment's wording. The phrase “suits at common law” defines the kinds of cases for which jury trial is preserved, and it is not directed to characteristics of the jury, such as size.¹⁸ The history agreed: the controversy behind the Amendment arose from fear that the civil jury itself would be abolished unless protected in express words, not from concern for preserving the jury's common-law characteristics.¹⁹ And the number twelve, the Court recalled from an earlier decision, was “a historical accident, unrelated to the great purposes which gave rise to the jury in the first place.”²⁰

Colgrove settles the constitutional point and nothing more. The six-member jury there came from a local district court rule, and the challengers argued that the rule was inconsistent with Rule 48, which provided for juries of fewer than twelve when the parties stipulated to them.²¹ The present range of six to twelve comes from the rule itself, as amended in 1991.²² The exam answer therefore has two layers: the Constitution does not demand a twelve-member civil jury, and Rule 48 supplies the working minimum of six at the verdict.

Stipulated Departures

Unanimity and the six-member minimum begin from the same qualifier: Rule 48(b) opens with the words “Unless the parties stipulate otherwise.”²⁴ A stipulation is an agreement between the parties, made known to the court, on which the court relies as controlling on the point it covers. Because the qualifier introduces the whole sentence, it reaches both conditions, so the parties may agree to accept a verdict from fewer than all the jurors, from fewer than six, or from both. The rule names the parties as the source of any departure and gives the court no power to relax either condition on its own.

Rule 48(c) confirms that reading from another direction. When a poll reveals “a lack of unanimity or lack of assent by the number of jurors that the parties stipulated to,” the court may direct further deliberation or order a new trial.²⁵ The second phrase assumes that parties can fix a number of assenting jurors short of all, and a poll then tests assent against that number. The standard is every juror by default and the stipulated number when the parties have agreed to one. Rule 48, as amended in 1991, thus treats unanimity as the rule and a stipulated alternative as the exception.²⁶

The choice belongs to the litigants, and what they trade is concrete. A party who accepts a verdict from five of six jurors gives up the dissenting juror's veto and gains protection against a hold-out who might otherwise force a mistrial. Parties who agree to continue with five jurors after an excusal likewise avoid starting over. Because the exception rests entirely on that agreement, a fact pattern that records none leaves the court with nothing but the default.

An exam stem that reports a five-to-one verdict from six jurors and mentions no agreement therefore describes an invalid verdict.²⁷ The tally alone decides nothing, and the missing fact is the stipulation. Supplying that fact reverses the result.

The verdict stands because the poll measures assent against the number the parties stipulated to, and five of six meets it.²⁸ The vote is five to one in both scenes, and only the parties' agreement differs. Parties rarely stipulate in exam fact patterns, so the habit to build is to search the stem for a sentence recording an agreement before deciding that a divided or undersized jury has returned a good verdict.

Polling the Jury

Rule 48(c) fixes both the moment and the actor. After a verdict is returned but before the jury is discharged, the court must on a party's request, or may on its own, poll the jurors individually.³⁰ A poll asks each juror, one at a time, whether the announced verdict is that juror's own. The word “individually” matters: a single question put to the whole panel lets a dissenting juror stay silent, and one-by-one questioning makes each juror answer personally.

The poll is needed because an announcement shows less than it appears to. The foreperson reports that the jury decided, and the report does not show that each juror agrees. Rule 48(b) makes unanimity, or the stipulated number, a condition of validity,³¹ so the court needs a way to learn that the condition was met in fact and not merely announced. The poll supplies it while the jurors are still before the court. The record in State v. Uyesugi shows the exercise in practice: after the verdicts, each juror stated that he or she agreed with them and that they reflected his or her opinion.³² That record comes from a state case, so it shows only what a poll consists of, and the federal civil procedure comes from Rule 48(c).

The timing has two edges. A poll cannot come before the verdict, because there is nothing yet to confirm. It also cannot come after discharge, because the rule's window closes when the court releases the jury.³³ The first remedy the rule offers, further deliberation, requires a jury still in being, and the deadline falls at the last moment when that is true.

A timely request produces a different result.

Nothing in the rule authorizes judgment on the announced verdict once a poll exposes disagreement. Five of six jurors owning a verdict leaves the jury short of the unanimity that Rule 48(b) demands, and the poll is the event that makes the shortfall visible.³⁴

The rule treats a party's request and the court's own initiative differently. When a party asks, the court must poll and has no discretion to decline. When no one asks, the court may poll but need not. A judge who senses hesitation can therefore check unprompted, and a party who doubts the verdict can compel the check.

A poll that goes badly leaves the court two options. If it reveals a lack of unanimity, or a lack of assent by the number of jurors the parties stipulated to, the court may direct the jury to deliberate further or may order a new trial.³⁵ Both options are permissive, so the choice belongs to the trial judge. Further deliberation returns the case to the jury already seated, and a new trial starts the case over.

The reference to a stipulated number ties polling back to stipulated departures. Where the parties accepted a verdict from five of six jurors, a poll showing five assents confirms the verdict, while a poll showing only four reveals a lack of assent by the stipulated number and opens the same two options. The stipulation changes the pass mark the poll applies, and the poll itself runs the same way.

Exam stems test the edges of this rule. A party's request before discharge leaves the judge no discretion to refuse, and a request after discharge falls outside the rule's text. A failed poll does not produce an automatic new trial, because further deliberation is available, and it does not permit judgment on the majority's view, because a verdict without the required assent is not a valid verdict.