Dodging Mistrials With a Mandatory Jury Inquiry Rule

• Publication year: 2009

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 32, No. 4SUMMER 2009

Dodging Mistrials with a Mandatory Jury Inquiry Rule

Missy Mordy(fn*)

I. Introduction

Jurors undoubtedly face difficult, if not seemingly impossible, decisions in the jury room. Deadlocked or hung juries are not uncommon.(fn1) In deciding that a jury is hung and that a mistrial should be declared, a judge must also make a difficult decision. Faced with such a decision, a judge's reasoning is often based solely on a speculative assessment of the jury.(fn2) For instance, a judge might have to determine whether a jury is deadlocked by considering only the fact that the jury deliberated for three days and sent back a single vague note at the end of the third day.(fn3) Armed with only those limited facts, a judge tasked with determining whether a jury is hung, much like the jury itself, faces a seemingly impossible decision.

Judges are not, however, without discretion to use several tools to encourage jurors to reach a decision.(fn4) Although prohibited from expressly coercing jurors, judges may use techniques such as an Allen charge(fn5) or a further instruction to encourage jurors to continue deliberations in the hope that, eventually, the jurors may reach a verdict.(fn6) Judges commonly use these techniques because a judge must ultimately conclude that "there is manifest necessity" in declaring a mistrial on account of a hung jury.(fn7) This high burden is founded on the oft-repeated principle that a defendant has a "valued right to have his trial completed by a particular tribunal."(fn8) Justice Joseph Story stated that principle while cautioning that a mistrial "ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes."(fn9) Put differently, once a jury begins its deliberations, a judge can declare a mistrial only with clear proof that the jury is genuinely and hopelessly deadlocked.(fn10)

In practical terms, this high burden means that, even if a jury writes a note stating that it is deadlocked, a judge cannot declare a mistrial without considering all of the factors that might have influenced the jurors to write that note.(fn11) To declare a mistrial where a jury was not truly deadlocked is not a fair outcome for the parties, the attorneys, the judge, or the jury.(fn12) In Justice Story's words, an outcome not founded on manifest necessity defeats "the ends of public justice."(fn13)

This Comment posits that judges can meet this high burden and definitively determine whether a jury is deadlocked in every case by using a simple tool: a jury inquiry. In its simplest form, a jury inquiry consists of a judge asking the jurors, individually or collectively, whether a verdict can be reached in a reasonable amount of time.(fn14) In this way, a judge can elicit concrete and reliable evidence, directly from the jury, that a mistrial is or is not warranted.(fn15) A jury inquiry is much like jury polling, which is required under Federal Rule of Criminal Procedure 31(d)(fn16) after a verdict if a party requests it, or may be taken at the judge's discretion.(fn17) The Supreme Court or Congress can mandate a similar jury inquiry rule with an amendment to Rule 31, which should read: Jury Inquiry. An inquiry into the status of the members of a jury shall be conducted prior to the declaration of a mistrial and discharge of the jury when such a mistrial is the result of what the court assumes to be a deadlocked or hung jury. Such an inquiry shall be directed to each juror individually and shall be done in open court. In conducting such an inquiry, the court must ask, specifically, whether each member of the jury believes that there is a reasonable probability that the jury can, in a reasonable amount of time, reach a verdict as to each count and as to each defendant of the case at bar if sent back to the jury room for further deliberation. The court may conduct such a jury inquiry on its own or at the request of a party if there is any indication, explicit or implicit, that the jury is deadlocked or hung.

Like Rule 31(d), a jury inquiry rule should be discretionary and implemented either at the request of a party or at the court's discretion. Unlike Rule 31(d), however, there are certain circumstances in which a jury inquiry rule should be mandatory, namely, whenever a judge seeks to declare a mistrial due to a hung or deadlocked jury.

In such instances, a mandatory jury inquiry rule is advantageous for a number of reasons. First, an inquiry would give the judge quantitative evidence from which to determine whether further deliberations might overcome a deadlock.(fn18) Accordingly, the judge would have a basis for his decision to either require the jury to continue deliberating or to declare a mistrial and discharge the jury.(fn19) Second, the direct statement from the jury would provide evidence to determine whether a mistrial was declared hastily and without "manifest necessity."(fn20) For example, if a mistrial was appealed, less would be required of an appeals court because, with a direct statement that the jury was deadlocked, there would be little basis upon which to argue that the judge abused his discretion.(fn21) Finally, an inquiry into each defendant and each count could uncover whether the jury has made a unanimous decision as to certain counts and whether the jury has deadlocked as to others.(fn22) Because most jurors do not have legal training, unless advised of Rule 31(b),(fn23) jurors are most likely unaware of their option to declare a partial verdict.(fn24) Where an inquiry reveals that certain counts were decided unanimously, those decisions may be recorded and accepted as partial verdicts.(fn25) Thus, a jury inquiry will lighten judicial dockets by eliminating counts and entire defendants from subsequent proceedings.(fn26)

This Comment considers the concept of a jury inquiry and concludes that, with a mandatory jury inquiry rule, judges will ensure that the public ends of justice are met before a mistrial is declared. Part II of this Comment examines the United States v. Razmilovic trial to give a concrete example of how a jury inquiry would have prevented a hastily declared mistrial. Part III.A examines the circuit trend regarding the definition of "manifest necessity." Toward the end of the 1970s, many circuits began to opine that jury inquiries were important when attempting to determine whether there was manifest necessity, especially where juries were apparently deadlocked. Part III.B demonstrates how the trend has solidified, in some circuits, into a mandatory rule that requires a judge to inquire into the status of the jury prior to declaring a mistrial. Part III.C also considers cases from circuits that have rejected the mandatory rule and examines the rationale behind such decisions.

Part IV looks into the practicality of jury inquiries. Part IV.A asks whether a mandatory jury inquiry rule should be limited to only multiple defendant cases. Part IV.B considers the form that the rule should take: whether the inquiry should be performed individually or collectively and whether in open court or out of court. Part IV.C sets forth the instruction that a trial judge should use in conducting the inquiry. And Part IV.D once more sets forth the language of the rule as it should be written in the Federal Rules of Criminal Procedure. Part V concludes by revisiting the Razmilovic case and reconsidering the trial as if a mandatory jury inquiry rule had been in effect. By reflecting on this concrete example, this Comment demonstrates that a mandatory jury inquiry rule not only promotes judicial efficiency, but also provides reliable evidence that will prevent mistrials.

II. The Practical Effects of the Jury Inquiry Rule in the

Context of the Razmilovic Trial

To demonstrate how a mandatory jury inquiry rule could affect a trial, imagine yourself as a juror in the following scenario. You sit alongside eleven other jurors for nearly two months. Over forty witnesses testify about three defendants and their purported involvement in a twenty-five count indictment. Each defendant was an executive in a complex public company, specializing in a business practice that you knew nothing about prior to the trial. Imagine the difficulty, day in and day out, of not discussing the case with the jurors sitting beside you.

Now imagine that, after nearly two months of silence and small talk, you are suddenly ordered to deliberate. You can rely only on your recollection and possibly some notes you took during the six weeks of testimony, plus various exhibits of financial and accounting data, and a twenty-five count indictment. You have no legal training or background. You know only that you must reach a unanimous verdict. And you know that you have a limited ability to converse with the judge and cannot, under any circumstance, reveal what has transpired in your deliberations.

Finally, imagine that after fewer than four days of deliberation, you and your fellow jurors have decided twenty-four of the twenty-five counts unanimously, but cannot reach consensus on the last count. Looking for guidance, you and your fellow jurors decide to send the judge a note. It is the end of the day. You and your fellow jurors are tired and ready to retire for the evening. The foreperson's note states, quite simply, that the jury is "deadlocked" and would like to go...