If you go to trial in a criminal case, do you have a right to individually poll the jurors after a guilty verdict?

After three days of trial, closing arguments, long, boring jury instructions from the judge, and several hours of deliberation locked in their jury room, the jurors have filed back into the court and taken their seats for the last time.

The jury foreman hands the verdict form to the bailiff, who hands it to the judge, who hands it to the clerk. The air in the courtroom is thick with tension as the clerk of court slowly unfolds the piece of paper, reads it to himself, and then reads it aloud, “Guilty.” The clerk then says, “Ladies and gentlemen of the jury, if this is your verdict, would you please signify by raising your right hand?”

They all raise their hands.

Can you then ask the Court to ask each juror, one at a time, if this is their verdict? You can, you should, and, if you ask and the Court refuses, the appellate court will automatically reverse your conviction…

Why Should You Individually Poll Jurors After a Verdict?

Attorneys often don’t – they are emotionally exhausted, they lost, their client may be going to prison, they don’t want to embarrass the jurors, they might feel embarrassed themselves…

Why should an attorney dig deep, stand up, and say, “Judge, please individually poll the jurors as to their verdict?”

It is Reversible Error for the Trial Court to Refuse to Individually Poll Jurors

In State v. Wright, the SC Court of Appeals held that it was reversible error for a trial court to refuse to individually poll jurors when the defendant requests it:

When the jury returned to the courtroom, the trial court directed the courtroom clerk to publish the verdict. The clerk read the verdict form, announcing the jury had found Wright guilty of ABHAN and that the form had been signed by the forelady. The clerk then stated: “Ladies and gentlemen of the jury if this is your verdict, would you please signify by raising your right hand?” In response, each juror raised his or her right hand. Wright then asked the trial court to poll each juror individually. The court declined, explaining that, in response to the clerk’s inquiry “each of the jurors raised their hand individually.” Wright appeals, asserting the clerk’s collective inquiry did not satisfy his polling right. We agree and reverse.

It’s not over until it’s over…

If there is a chance that one or more jurors did not want to vote guilty, and there always is, you may not know unless you individually poll the jurors, putting each of them on the spot as to what their individual verdict would have been.

If the defendant is found guilty, it’s not necessarily over – the defendant may have grounds to file an appeal from the verdict or there may be grounds for post-conviction relief. If the trial court makes an error of law during trial and the defense preserves an objection, the appellate court may reverse the conviction.

Spotting potential appellate issues and raising them during trial is part of an effective trial strategy in every case.

If the defense asks the Court to individually poll jurors and the Court refuses, unless State v. Wright is overturned by a higher court, it is an automatic reversal of the conviction on appeal.

Trial counsel should put every motion or objection on the record that could result in a reversal on appeal if the Court does not grant them, including a request to individually poll the jurors.

Refusal to Individually Poll Jurors is a Structural Error

Trial errors committed by a judge might result in reversal on appeal, or the appellate court might find that they were “harmless error” based on a review of the evidence presented at trial.

Structural errors, on the other hand, are reversible per se – there is no harmless error analysis on appeal.

In State v. Wright, the Court of Appeals defined a “structural error” as one that relates to a trial’s framework as opposed to “an error in the trial process itself.” They held that an error is structural if “(1) the right at issue is designed to protect an interest other than the defendant’s interest in being wrongly convicted; (2) the effects of the error are “simply too hard to measure”; or (3) the error always results in fundamental unfairness.

The Court found that all three of these factors are affected by a failure to individually poll jurors, and it would be impossible to conduct a harmless error analysis because the error occurred after the presentation of evidence to the jurors – it doesn’t matter if the evidence was overwhelming:

Because of the importance of the polling right and the difficulty of deciphering the harm its denial has caused, many federal circuits and state appellate courts have deemed the denial reversible per se… We are persuaded by the sound reasoning of these decisions and therefore hold the denial of the defendant’s substantial right to an individual poll of each juror in open court—where each juror must express his or her continued assent in the announced verdict—is reversible error per se, not subject to a harmless error analysis. We are convinced such a rule incentivizes compliance with proper polling procedure and best honors the value of the right itself.

Apart from the possibility of a reversal on appeal if the trial court denies your request to individually poll jurors, why should you ask the Court to do it?

Do jurors ever change their answer when they are individually polled?

They do.

The Court of Appeals pointed this out in their opinion: “It is not enough to say, as the State does, that jurors seldom recant upon polling. Experience—and case law—proves they do.”

In many cases, behind closed doors in the jury room, some jurors are in favor of acquittal, some are in favor of conviction, and others fall somewhere in-between. The jurors at each extreme must then persuade the jurors at the other extreme and the jurors in the middle that they are right before they can come together with a unanimous verdict.

In some cases, the process of deliberation and persuasion can become coercive – jurors start to lose their tempers, people want to get home to their families, and there is a lot of pressure on the one or two holdouts to change their vote.

As a group, the hold-outs may succumb to the pressure and say, “Fine, he’s guilty, let’s go home.” But, when those jurors are asked individually what their verdict is, they might inform the Court that they did not want to vote guilty.

At this point, the Court can give them instructions to return to the jury room until their verdict is unanimous or declare a hung jury and a mistrial if the jurors cannot agree.

Always ask the Court to individually poll the jurors after a guilty verdict.

Criminal Defense Lawyer in Charleston, SC

If you have been charged with a crime in SC or believe you are under investigation, call Charleston, SC criminal defense attorney Grant B. Smaldone now at (843) 808-2100 or send us a message to speak with a SC criminal defense lawyer today.