The Verdict

The Verdict

The verdict is where a jury trial produces its result. Jurors have been selected, told the law in the charge, and sent out to deliberate, and what they bring back is the only thing that can turn the government's accusation into a conviction. Federal Rule of Criminal Procedure 31 governs that last step: the jury returns its verdict to a judge in open court, the verdict must be unanimous, the court polls the jurors individually on request before discharging them, the jury may return partial verdicts when it agrees on only some defendants or counts, and a defendant may be found guilty of a necessarily included offense or an attempt.¹ The preceding section on instructions established that a judge may not decide an element for the jury. Rule 31 carries that commitment to the end of the trial, so that the decision entered against the accused is demonstrably the jurors' own.

Whose decision the verdict is explains why the rule surrounds it with so many safeguards. Only the jury can convict: a judge may grant a judgment of acquittal in whole or in part, but cannot prevent the jury from acquitting however strong the government's evidence, because a verdict for the government entered by the judge would violate the accused's Sixth Amendment right to a jury trial.² A decision that the Constitution assigns to the jury as a body would mean little if someone else could report it, if it could be recorded without the agreement of each juror, or if it could be announced out of the parties' sight. Each feature of Rule 31 closes one of those gaps, and each does so for its own reason.

Return to a judge in open court places the decision on the record before the parties and the public, so nobody has to rely on a private account of what happened in the jury room. Unanimity gives every juror a share in the result, which means a verdict cannot be assembled by outvoting the juror who doubts. Polling does subtler work. A jury speaks through one voice, usually the foreperson's, and a juror who yielded to pressure during deliberations may be unwilling to say so unprompted, so a question put to each juror individually before the jury is discharged and scatters lets the court confirm that the announced verdict belongs to each of them. Partial verdicts and lesser included offenses address a different risk, a jury that agrees on only part of the case or that doubts the charged offense while accepting a lesser one. Those devices let the jurors report the agreement they actually have instead of forcing an all-or-nothing answer.

The verdict also needs protection after it is entered. Once the jury has returned its verdict, a centuries-old principle known as the no-impeachment rule keeps the verdict from being called into question later on the basis of what jurors said or concluded during deliberations, which protects both the finality of the judgment and the jurors' freedom to deliberate candidly.³ The Sixth Amendment supplies one narrow exception. In Peña-Rodriguez v. Colorado a juror made biased statements about Mexican-Americans during deliberations, two other jurors described those statements in affidavits, and the trial court acknowledged the bias but denied a new trial under Colorado's version of the rule, which Federal Rule of Evidence 606(b) also reflects.⁴

Peña-Rodriguez held that when a juror makes a clear statement indicating that racial animus was a significant motivating factor in the vote to convict, the Sixth Amendment requires the no-impeachment rule to give way, because the right to an impartial jury is compromised if even one juror harbors racial bias toward the defendant and that constitutional interest outweighs the rule's interests in finality and in protecting deliberations.⁵ The exception is narrow by design. Not every offhand comment or expression of bias qualifies, so the trial court examines the statement in light of all the circumstances, including any possible nonracial explanations, and sets the verdict aside only if the statement and circumstances show that racial bias was a significant motivating factor.⁶

Students who treat any biased remark in the jury room as grounds to reopen a verdict overstate the exception, which asks whether a clear statement shows that bias motivated a vote to convict. Other questions about what jurors may say to attack a verdict, such as outside information reaching the jury, belong to the rules of evidence and are left to that subject. The subsections below follow Rule 31 in the order a deliberation unfolds: the open-court return and the unanimity requirement, including how far the Constitution itself demands unanimity; polling, which tests the announced verdict before the jury is discharged; partial verdicts, including retrial of counts on which the jury could not agree; and lesser included offenses. A question about what the jury returned is answered under Rule 31, and a question about attacking the verdict after discharge is answered under the no-impeachment rule and its narrow exception.

Unanimity in Open Court

Rule 31(a) opens the law of the verdict with two commands in two short sentences: the jury must return its verdict to a judge in open court, and the verdict must be unanimous.⁹ Each command answers a different question. The first fixes the moment and place at which the jury's private agreement becomes the official decision, so the parties, the public, and the court all hear the same announcement, and the later steps of polling and discharge have a defined point at which to begin. The second fixes how much agreement counts. When one juror's refusal prevents any verdict, a majority cannot finish its work by tallying votes and has to answer the doubts of the holdout, so a conviction reflects the judgment of the whole panel, and so does an acquittal.

Unanimity here means that every member of the jury agrees on the verdict, whether the verdict is guilty or not guilty.¹⁰ A jury that cannot reach that agreement is deadlocked, or hung, and a deadlock is neither a conviction nor an acquittal. The defendant is not acquitted and may be tried again, a consequence developed in the subsection on partial verdicts and retrial.¹¹ The requirement attaches to the verdict on each element of the offense and does not reach the route the jurors took to satisfy a single element. As the preceding section showed through Schad v. Arizona and Richardson v. United States, jurors who all find first-degree murder need not agree on whether the killing was premeditated or a felony murder when the statute treats those as alternative means of one crime, but they must agree on each separate element.¹²

Rule 31(a) governs federal trials only, so the question in state court was whether the Constitution itself demanded unanimity. Ramos v. Louisiana answered it in 2020 by holding that the Sixth Amendment requires a unanimous jury verdict to convict, and that the requirement binds the states through the Fourteenth Amendment.¹³ The reasoning is historical. The Sixth Amendment's guarantee of an impartial jury carried content drawn from the common law, and unanimity was part of that content: the requirement emerged in fourteenth-century England and was treated as a vital right.¹⁴ The young American states followed the same rule. Six state constitutions required unanimity expressly, four more preserved jury trial in general terms, and state courts regarded unanimity as essential to the jury, so by the time the Sixth Amendment was ratified in 1791 unanimous verdicts had been required for about 400 years.¹⁵ The Court in Apprendi v. New Jersey described the common-law jury in the same terms, as a body whose confirmation of every accusation required the unanimous agreement of the defendant's equals and neighbors.¹⁶ Once unanimity is part of the Sixth Amendment right, the application to the states follows automatically, because a right incorporated against the states is enforced there by the same standards that govern it against the federal government.¹⁷

Ramos displaced a decision that had stood for almost fifty years. In Apodaca v. Oregon and Johnson v. Louisiana, a divided Court had upheld state convictions on votes of 10–2 and 9–3.¹⁸ Those results never reflected a majority view of what the Sixth Amendment means: four Justices in Apodaca thought it does not require unanimity in any court, four thought it requires unanimity in every court, and Justice Powell, supplying the deciding vote, thought it requires unanimity in federal trials only.¹⁹ Ramos repudiated Apodaca, ended the separate treatment of federal and state trials, and overruled Johnson along with it.²⁰ The Court also viewed the non-unanimity rules of Louisiana and Oregon as prompted by racially discriminatory animus, which gave it a further reason not to preserve them.²¹ Statements in older cases that a state may convict on ten of twelve votes therefore no longer describe the law.

The usual trap on an exam stem is to treat a large majority as a verdict. A stem that reports a state jury convicting on a vote of 10–2 or 11–1 invites the answer that the conviction stands, and students who learned the pre-2020 cases give it. They lose the point, because a non-unanimous conviction violates the Sixth Amendment in state court exactly as in federal court after Ramos.²⁶ The opposite error is to read the unanimity command as reaching every disagreement in the jury room. Jurors who agree that each element is proved, but who reach one element by different routes the statute treats as alternative means, have not produced a divided verdict.²⁷

Polling the Jury

The foreperson who announces a verdict in open court speaks for the whole jury, and the announcement alone does not show that every juror agrees with what was said. Rule 31(d) supplies the check: 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.²⁹ Each part of that sentence does separate work, and the rule closes by giving the court two ways to respond when the poll goes badly. This subsection takes the trigger, the method, the timing window, and the remedies in that order.

The trigger has two settings. When a party asks for a poll, the rule says the court must conduct one, so a request made in time leaves the judge no discretion to refuse, and the requesting party need not point to any reason to doubt the verdict.³⁰ That feature solves a practical problem. The grounds for doubt, if there are any, lie in the jury room, where counsel cannot see, and a requirement that counsel justify a suspicion would make the right unusable. Mandatory polling on request also removes any pull on the judge to skip a poll in order to protect a verdict that looks sound. When no party asks, the court may poll on its own, which lets a judge who notices a hesitant juror verify the verdict without waiting for counsel.

The method is individual: the court asks the jurors one at a time whether the announced verdict is theirs.³¹ The reason lies in what a group question permits. If the judge asks the panel as a whole whether this is its verdict, a juror who gave way under pressure during deliberations can sit silent while the others nod, and silence passes for assent. A question addressed to each juror in turn requires a personal answer in the courtroom, before the parties, at a moment when disagreement can still change the result. One dissent is enough to matter, because the unanimity requirement of Rule 31(a) demands the agreement of every member of the jury.³²

The rule places the poll after the verdict is returned and before the jury is discharged, and both edges of that window have a function. The poll follows the return because it tests an announced verdict, and there is nothing to confirm until the jury has said what it decided. The poll must precede discharge because discharge ends the jury's existence as a body the court can direct. Released jurors scatter, speak with family, lawyers, and reporters, and cannot be reassembled in the same state of mind, and both remedies the rule authorizes presuppose a jury still in the court's hands. After discharge, a juror's later regret about a verdict falls under the no-impeachment rule discussed at the opening of this section, which keeps the verdict closed to attack on the basis of what happened in deliberations.

If the poll reveals a lack of unanimity, the court may direct the jury to deliberate further or may declare a mistrial and discharge the jury.³³ The first choice treats the dissent as a sign that the jurors' work was unfinished and gives them the chance to resolve it. The second ends the trial without a verdict when the court judges that further deliberation would be unproductive. The rule says may for both, so the choice belongs to the trial judge. Either way, the dissenting juror's answer means the announced verdict was never the decision of every juror, and a foreperson's reading it aloud does not change that. A mistrial produces neither a conviction nor an acquittal, a consequence the subsection on partial verdicts and retrial takes up.

Exam stems usually test this rule through timing. A stem that has the judge excuse the jury and then has defense counsel ask for a poll describes a request made after discharge, and once the jury is discharged the court has no duty to poll and no power to send the jurors back. Two other errors recur. Students sometimes treat the poll as discretionary even when a party requests it, and sometimes treat a failed poll as an acquittal. The poll is mandatory on request, and a failed poll yields only the two responses the rule names, further deliberation or a mistrial, neither of which acquits the defendant.³⁴

Partial Verdicts and Retrial

Rule 31(a) demands that every juror agree before a verdict exists, and that demand raises a question as soon as a trial involves more than one accusation: what happens when the jury has finished some of its work but not all of it? Rule 31(b) answers with three subparts that run in a natural sequence. The first deals with several defendants, the second with several counts against one defendant, and the third with the counts on which the jury cannot agree.³⁶

When defendants are tried together, the jury may return a verdict at any time during its deliberations as to any defendant about whom it has agreed.³⁷ The reason lies in what unanimity measures. The verdict that every juror must join is always a verdict on a particular accusation against a particular person.³⁸ Once all the jurors agree on one defendant's guilt or innocence, that decision is complete, and nothing about a codefendant's case adds to it or subtracts from it. A rule that held every finished verdict until the jury resolved every defendant would turn one holdout on one person's case into a barrier for everyone else. It would also give the majority a reason to trade votes across defendants simply to end the standoff, which is the kind of compromise unanimity is meant to prevent.

The same logic operates one level down, among the counts against a single defendant. If the jury cannot agree on all counts as to any defendant, it may return a verdict on those counts on which it has agreed.³⁹ Because unanimity attaches to each count separately, a count is ready to be returned the moment every juror agrees on it, and an unresolved count elsewhere in the indictment does not postpone it. The word agreed carries the weight here. A jury split eleven to one on a count has not agreed on it, so that count joins the unresolved group no matter how lopsided the vote.⁴⁰ The holdout's refusal also does not acquit the defendant on that count. It means only that no verdict exists on it.

The third subpart handles those unresolved counts. If the jury cannot agree on a verdict on one or more counts, the court may declare a mistrial on those counts, and the government may retry any defendant on any count on which the jury could not agree.⁴¹ The mistrial reaches only the counts without agreement, so verdicts already returned on other counts remain in place. The authority to retry rests on the same fact that justifies the mistrial: on a deadlocked count the jury decided nothing, so a second trial has no earlier decision to repeat or contradict. The word may also leaves the declaration to the trial judge, who is not obliged to end the count the moment the jury reports a split. Whether the Constitution permits a particular retrial raises double jeopardy questions that are treated elsewhere, and Rule 31(b)(3) addresses only the procedural step.

The pair shows which fact controls: the line between a count with a verdict and a count without one. The retrial provision attaches only to the count on which the jury could not agree, and a count the jury has decided is not eligible for it.⁴²

The usual error on an exam stem is to treat a deadlock on one count as a failure of the whole trial. A stem that reports convictions on two counts and a hung third invites the answer that the jury must be discharged with nothing resulting, or that the government may retry everything. Both answers are wrong, because the agreed counts stand as verdicts and only the hung count is open to a new trial.⁴⁶ The opposite error is to read the retrial sentence as a general license, when the text reaches only counts on which the jury could not agree. Students lose the point when they allow the government to retry a count already decided because the jury hung on a different count.⁴⁷

Lesser Included Offenses

Rule 31(b) lets a jury return verdicts piece by piece across defendants and counts. Rule 31(c) addresses a different situation inside a single count, where the jury has accepted part of the government's case but not all of it. If the only verdicts open to the jury were guilty or not guilty of the offense exactly as charged, a jury that found a lesser wrong proved would have to choose between convicting of more than the evidence shows and acquitting a defendant who did commit a crime. Rule 31(c) removes that forced choice by permitting a guilty verdict on three kinds of offense short of the one charged: an offense necessarily included in the offense charged, an attempt to commit the offense charged, and an attempt to commit a necessarily included offense, the last only if that attempt is an offense in its own right.⁴⁹ Verdicts of these kinds are what exam questions call a lesser included offense verdict, and the clauses are taken in order below, after the reason the rule is built this way.

The rule has two halves, and each has its own logic. The permission to convict of less serves accuracy: a jury that doubts one ingredient of the charged offense but is satisfied about everything else can return a verdict that matches what it found. It also has less reason to bend toward conviction on the full charge simply to avoid releasing someone it believes did wrong. The limit to included offenses and attempts serves notice. A defendant who reads an indictment learns what must be defended against, and a charge carries with it everything it contains, so a verdict on a contained offense produces no surprise. A verdict on a crime with a different ingredient would find the defendant guilty of something the charge never told them to answer.

Clause (1), an offense necessarily included in the offense charged, needs the most care because its test lives in the words. An offense is necessarily included when the charged offense cannot be committed without also committing it, which is true when everything the government must prove for the lesser offense is also part of what it must prove for the greater.⁵⁰ The word necessarily reads most naturally as pointing to what the charged offense requires in every case, so the comparison runs between the definitions of the two offenses and not between the particular facts that came out at trial. A lesser crime that happened to be committed along the way is therefore not included just because the evidence shows it. The test also runs in one direction: the lesser offense must fit inside the greater, and if the lesser contains an element the greater lacks, the greater can be committed without it.

Clause (2) covers a different kind of shortfall. A defendant charged with a completed offense may be found guilty of an attempt to commit that offense when the jury finds the government proved the effort but not the completion.⁵¹ The lesser verdict here is the same conduct stopping short of its end point, so the charge has already told the defendant to answer for it. The rule lists the attempt on its own line, which means the jury's authority to return it does not depend on first deciding whether an attempt counts as necessarily included under clause (1). The clause asks only that the verdict be an attempt to commit the offense charged.

Clause (3) combines the first two ideas. When the jury finds neither the charged offense nor the completed lesser offense proved, but finds an attempt to commit the lesser offense, it may return that verdict, provided the attempt is an offense in its own right.⁵² The proviso keeps the rule from creating crimes. Rule 31(c) selects among offenses the law already defines, so a verdict on an attempt to commit the lesser offense is open only where the substantive law makes that attempt punishable by itself.

The usual error on an exam stem is to treat any related lesser crime as available to the jury. A stem in which the jury wants to convict of a crime that shares facts with the charge, but has an element of its own, invites the answer that the verdict is proper because the conduct overlaps. Overlap in the evidence is not inclusion in the charge, and students lose the point when they allow an uncharged crime with an element the charged offense lacks because the facts happen to line up.⁵⁸ A second error is to forget that a guilty verdict on the lesser offense is still a verdict, so every juror must agree on it as on any other.⁵⁹