BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

2.09.1 Verdict--Criminal: Reception Of Unsealed Verdict

NCJIC Materials Related To This Issue:

Chapter 287: Verdict

A. Reception of unsealed verdict

1. Upon announcement by the jury that it has reached a verdict, have all interested parties convene in open court to receive the verdict. The presence of the defendant(s) is required under FRCP 43(a), unless one of the exceptions in FRCP 43(b) or (c) applies. Any victims of the offense should be given "reasonable, accurate, and timely notice" of the return of verdict so that they can be present. See 18 USC 3771(a)(2) and (3).

2. When court is convened, announce that the jury is ready to return its verdict(s), and instruct the deputy marshal (or bailiff) to have the jurors enter and assume their seats in the jury box.

3. If not already known, inquire of the jury who speaks as its foreperson.

4. Ask the foreperson if the jury has unanimously agreed on its verdict. [Note: If the response is anything other than an unqualified yes, the jury should be returned without further inquiry to continue its deliberations.]

5. Instruct the foreperson to hand the verdict form(s) to the clerk to be delivered to you for inspection before publication.

6. Inspect the verdict(s) to ensure regularity of form. [Note: If the verdict form(s) is (are) not properly completed, take appropriate corrective action before publication.]

7. Explain to the jurors that their verdict(s) will now be "published"—that is, read aloud in open court.

8. Instruct the jury to pay close attention as the verdict(s) is (are) published; explain that, following publication, the jury may be "polled"—that each juror may be asked, individually, whether the verdict(s) as published constituted his or her individual verdict(s) in all respects.

9. Publish the verdict(s) by reading it (them) aloud (or by having the clerk do so).

10. If either party requests, or on your own motion, poll the jury by asking (or by having the clerk ask) each juror, by name or number, whether the verdict(s) as published constituted his or her individual verdict(s) in all respects. (FRCP 31(d) requires polling upon request.)

11. If polling verifies unanimity, direct the clerk to file and record the verdict, and discharge the jurors with appropriate instructions concerning their future service, if any.

12. If polling results in any doubt as to unanimity, make no further inquiry and have no further discussions with the jury; rather, confer privately, on the record, with counsel and determine whether the jury should be returned for further deliberations or a mistrial should be declared.

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

2.09.2 Verdict--Criminal: Reception Of Sealed Verdict

B. Reception of sealed verdict

In some cases a sealed verdict may be delivered to the clerk for subsequent "reception" and publication in open court when the jury, the judge, and all necessary parties are present. For example, on some occasions an indispensable party may not be available to receive a verdict when the jury reaches agreement. This may occur when the jury reaches its verdict late in the evening, a defendant is absent from the courtroom because of illness, or the judge is unavailable. In these instances, the verdict may be sealed and the jurors allowed to return home. A sealed verdict may also be appropriate when the jury reaches a verdict as to one defendant but not as to another or when the jury wishes to return a partial verdict.

1. Upon announcement by the jury that it has reached a verdict, have all interested and available parties convene in open court and on the record. The presence of the defendant(s) is required under FRCP 43(a), unless one of the exceptions in FRCP 43(b) or (c) applies. Any victims of the offense should be given "reasonable, accurate, and timely notice" of the return of verdict so that they can be present. See 18 USC 3771(a)(2) and (3).

2. When court is thus convened, announce that the jury is ready to return its verdict(s) and explain that a sealed verdict will be taken in accordance with the following procedure:

(a) Instruct the deputy marshal (or bailiff) to usher the jurors into the courtroom to assume their seats in the jury box.

(b) If not already known, inquire of the jury who speaks for it as its foreperson.

(c) Ask the foreperson if the jury has unanimously agreed on its verdict.

[Note: If the response is anything other than an unqualified yes, the jury should be returned without further inquiry to continue its deliberations.]

(d) Poll the jurors individually on the record.

(e) Explain to the jury that a sealed verdict will be taken, and further explain why that procedure has become necessary in the case.

(f) Direct the clerk to hand a suitable envelope to the foreperson. Instruct the foreperson to place the verdict form(s) in the envelope, to seal the envelope, and to hand it to the clerk for safekeeping.

[Note: In the event the jury will not be present at the opening of the verdict, it is recommended that each juror sign the verdict form(s).]

(g) Recess the proceedings, instructing the jury and all interested parties to return at a fixed time for the opening and formal reception of the verdict. Instruct that, in the interim, no member of the jury should have any conversation with any other person, including any other juror, concerning the verdict or any other aspect of the case.

(h) When court is again convened for reception of the verdict, have the clerk hand the sealed envelope to the jury foreperson.

(i) Instruct the foreperson to open the envelope and verify that the contents consist of the jury’s verdict form(s) without modification or alteration of any kind.

(j) Follow the steps or procedures outlined in paragraphs A.5 through A.12, supra.

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

Donald S. Voorhees, Manual on Recurring Problems in Criminal Trials 35–37 (5th ed. 2001)