CourtRule 31. Jury Verdict

(a) Return. The jury must return its verdict to a judge in open court. The verdict must be unanimous.

(b) Partial Verdicts, Mistrial, and Retrial.

(1)Multiple Defendants. If there are multiple defendants, the jury may return a verdict at any time during its deliberations as to any defendant about whom it has agreed.

(2)Multiple Counts. If the jury cannot agree on all counts as to any defendant, the jury may return a verdict on those counts on which it has agreed.

(3)Mistrial and Retrial. If the jury cannot agree on a verdict on one or more counts, the court may declare a mistrial on those counts. The government may retry any defendant on any count on which the jury could not agree.

(c) Lesser Offense or Attempt. A defendant may be found guilty of any of the following:

(1) an offense necessarily included in the offense charged;

(2) an attempt to commit the offense charged; or

(3) an attempt to commit an offense necessarily included in the offense charged, if the attempt is an offense in its own right.

(d) Jury Poll. 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. 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.

(As amended Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 29, 2002, eff. Dec. 1, 2002.)

Miscellaneous

Notes of Advisory Committee on Rules—1944

Note to Subdivision (a). This rule is a restatement of existing law and practice. It does not embody any regulation of sealed verdicts, it being contemplated that this matter would be governed by local practice in the various district courts. The rule does not affect the existing statutes relating to qualified verdicts in cases in which capital punishment may be imposed, 18 U.S.C. 408a [now 1201] (Kidnapped persons); sec. 412a [now 1992] (Wrecking trains); sec. 567 [now 1111] (Verdicts; qualified verdicts).

Note to Subdivision (b). This rule is a restatement of existing law, 18 U.S.C. [former] 566 (Verdicts; several joint defendants).

Note to Subdivision (c). This rule is a restatement of existing law, 18 U.S.C. [former] 565 (Verdicts; less offense than charged).

Note to Subdivision (d). This rule is a restatement of existing law and practice, Mackett v. United States, 90 F.2d 462, 465 (C.C.A. 7th); Bruce v. Chestnut Farms Chevy Chase Dairy, 126 F.2d 224, App.D.C.

Notes of Advisory Committee on Rules—1972 Amendment

Subdivision (e) is new. It is intended to provide procedural implementation of the recently enacted criminal forfeiture provision of the Organized Crime Control Act of 1970, Title IX, § 1963, and the Comprehensive Drug Abuse Prevention and Control Act of 1970, Title II, § 408(a)(2).

The assumption of the draft is that the amount of the interest or property subject to criminal forfeiture is an element of the offense to be alleged and proved. See Advisory Committee Note to rule 7(c)(2).

Although special verdict provisions are rare in criminal cases, they are not unknown. See United States v. Spock, 416 F. 2d 165 (1st Cir. 1969), especially footnote 41 where authorities are listed.

Committee Notes on Rules—1998 Amendment

The right of a party to have the jury polled is an “undoubted right.” Humphries v. District of Columbia, 174 U.S. 190, 194 (1899). Its purpose is to determine with certainty that “each of the jurors approves of the verdict as returned; that no one has been coerced or induced to sign a verdict to which he does not fully assent.” Id.

Currently, Rule 31(d) is silent on the precise method of polling the jury. Thus, a court in its discretion may conduct the poll collectively or individually. As one court has noted, although the prevailing view is that the method used is a matter within the discretion of the trial court, United States v. Miller, 59 F.3d 417, 420 (3d Cir. 1995) (citing cases), the preference, nonetheless of the appellate and trial courts, seems to favor individual polling. Id. (citing cases). That is the position taken in the American Bar Association Standards for Criminal Justice § 15–4.5. Those sources favoring individual polling observe that conducting a poll of the jurors collectively saves little time and does not always adequately insure that an individual juror who has been forced to join the majority during deliberations will voice dissent from a collective response. On the other hand, an advantage to individual polling is the “likelihood that it will discourage post-trial efforts to challenge the verdict on allegations of coercion on the part of some of the jurors.” Miller, Id. at 420 (citing Audette v. Isaksen Fishing Corp., 789 F.2d 956, 961, n. 6 (1st Cir. 1986)).

The Committee is persuaded by the authorities and practice that there are advantages of conducting an individual poll of the jurors. Thus, the rule requires that the jurors be polled individually when a polling is requested, or when polling is directed sua sponte by the court. The amendment, however, leaves to the court the discretion as to whether to conduct a separate poll for each defendant, each count of the indictment or complaint, or on other issues.

Changes Made to Rule 31 After Publication (“GAP Report”). The Committee changed the rule to require that any polling of the jury must be done before the jury is discharged and it incorporated suggested style changes submitted by the Style Subcommittee.

Committee Notes on Rules—2000 Amendment

The rule is amended to reflect the creation of new Rule 32.2, which now governs criminal forfeiture procedures.

GAP Report—Rule 31. The Committee made no changes to the published draft amendment to Rule 31.

Committee Notes on Rules—2002 Amendment

The language of Rule 31 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.

Rule 31(b) has been amended to clarify that a jury may return partial verdicts, either as to multiple defendants or multiple counts, or both. See, e.g., United States v. Cunningham, 145 F.3d 1385, 1388–90 (D.C. Cir. 1998) (partial verdicts on multiple defendants and counts). No change in practice is intended.