5.10 Polling the Jury

• Library: Trial of Capital Murder Cases in Virginia (Virginia CLE) (2019 Ed.)

5.10 POLLING THE JURY

Rule 3A:17(d) of the Rules of the Supreme Court of Virginia provides that "[w]hen a verdict is returned, the jury shall be polled individually at the request of any party or upon the court's own motion. If upon the poll, all jurors do not agree, the jury may be directed to retire for further deliberations or may be discharged." ²⁵¹ The jury is polled merely to ascertain if each juror assents to the verdict as rendered, and the polling cannot be used to inquire how or why a juror arrived at the verdict. ²⁵² For example, in Shepperson v. Commonwealth, ²⁵³ the trial court properly denied the defense request for a special poll of the jury to determine on which theory—premeditation or felony murder—the jury based its finding of first-degree murder. Similarly, (Kent) Jackson v. Commonwealth ²⁵⁴ held that the jury need not be polled as to "which statutory element(s) established vileness, specifying at the time of polling one or more of torture, depravity of mind, or aggravated battery." The court held that 'depravity of mind, aggravated battery, and torture are not discrete elements of vileness that would require separate proof but rather are 'several possible sets of underlying facts [that] make up [the] particular element.'"

The polling process consists of the clerk inquiring of each juror "Is this your verdict?" to which each juror must reply in the affirmative or negative. ²⁵⁵ Although it is better practice to ask each juror to respond individually whether he or she agrees with the announced verdict, it is not an abuse of discretion for the judge to ask for a show of hands. ²⁵⁶ Polling of the jury is often a pro forma ritual, but surprises do occur. For example, in Gardner v. Commonwealth, ²⁵⁷ several jurors responded by stating, "I support the group decision." The trial judge refused to accept this answer and required the jurors to respond "yes or no" to the question "Is this your verdict?" A juror

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then answered "no." Carver v. Commonwealth ²⁵⁸ held that "when a juror, who fully understands the import of the question presented by the court in the polling of the jury, answers that his or her belief is contrary to the verdict rendered, the verdict is not unanimous and cannot be accepted."

Under "ordinary circumstances," a judge need not inquire into the reasons for a juror's hesitation in responding to a poll of the jury. However, the "totality of the circumstances" (namely, the coercive effect of the court's comments to the...