Polling the Jury By Hon. Dave Kramer

Polling the Jury
By David Kramer | dkramer@dbllaw.com

By Kentucky statute, either party may request that the jury be polled after its verdict is announced. See KRS 29A.320(3)(d). While the pertinent federal civil rule provides that either party may request a poll, it also provides that the trial court may poll the jury sua sponte. See FRCP 48(c). One would presume that a trial court in Kentucky inherently retains the same authority where the verdict raises a question in the judge’s mind. This process is probably most commonly requested by a defendant who has been convicted in a criminal trial, in which a verdict must be unanimous, but polling may also be employed by any party in a civil trial. See KRS 29A.320(3)(d). In a civil case, polling may be advisable if the jury struggled to reach a decision by the minimum number of jurors required for a verdict, as well as if the verdict form indicates jury confusion or contains inconsistent findings or anomalous marks or signatures. The polling of the jury is to be conducted by the judge, who is to ask each juror if the verdict announced by the foreman was his or her verdict. The questioning by the judge to clarify a juror’s answer during polling should not be coercive. If the verdict is not affirmed by the number of jurors required to reach a verdict under KRS 29A.280, the court must send the jury back for further deliberation, under KRS 29A.320(3)(e). A court has discretion to declare a mistrial or grant a motion for a new trial if the court finds that the response of a juror indicates there was a lack of free and voluntary assent by a juror in reaching the verdict. See, e.g., Kaminski v. Bremner, Inc., 281 S.W.3d 298 (Ky. App. 2009).

Note: The foregoing post includes commentary reprinted from the forthcoming 2013 supplement to Rules of Civil Procedure Annotated, 6th ed. (Vols. 6 & 7, Kentucky Practice Series), by David V. Kramer, with permission of the author and publisher. Copyright (c) 2013 Thomson Reuters. For more information about this publication please visit http://store.westlaw.com/rules-of-civil-procedure-annotated-6th-vols-6-7-kentucky/130503/11774808/productd

David Kramer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.

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