When should trial counsel ask to individually poll jurors after a verdict?

When there is a guilty verdict, defense counsel should always ask the court to individually poll the jurors. Why?

Because, sometimes, a juror will say that their verdict is not guilty – it may be that they changed their mind since leaving the jury room, or it may be that the foreman and other jurors were pressuring them to vote guilty, but they cannot in good conscience vote guilty once they are in the courtroom, looking at the defendant, and on the record.

If one juror refuses to vote guilty, the court must declare a mistrial. A mistrial is technically not a “win,” but, then again, when your client is not convicted and gets to walk out the front door, it’s a win…

Test everything, question everything, consent to nothing, leave no stone unturned, and always ask the court to individually poll the jurors if there is a guilty verdict.

A Trial Court Must Individually Poll Jurors When Requested by Either Party

Why should you individually poll jurors? Because one or more might say that their vote is not guilty is the obvious answer – there is another reason, though.

Part of trial practice is winning your trial – investigation, preparation, presentation to the prosecutor or court to get a dismissal or negotiated agreement, and presentation to the jury if the case goes to trial.

Another part of trial practice is winning your appeal – nothing is certain in trial practice, and even what seems like a “slam dunk” could go sideways and end in a guilty verdict. So, a trial lawyer should create as much “appeal insurance” as possible before and during the trial.

Motions practice is important to shape the state’s and defense’s presentation to judge and jury, to frame the issues at trial, and to exclude key evidence that was taken in violation of the constitution or that is otherwise inadmissible.

It’s also important to give your client issues for appeal if the worst happens and the jury convicts. How many motions and objections can you make that are 1) legally valid and 2) will result in a reversal on appeal if the court denies them?

If you’ve ever tried a criminal case, you know that judges can sometimes be arbitrary, and some judges will rule in the prosecutor’s favor by default. This is frustrating, especially when you are right on the law, but it is also an opportunity – each motion or objection that the court denies that is also grounds for appeal creates an insurance policy in the event that your client is convicted…

Consider that, if the judge denies a motion, the motion was valid, and the denial of that motion is grounds for reversal of a conviction, you should make every possible valid motion or objection that you can, creating as many issues for appeal as possible.

One of those potential issues for appeal is the individual polling of the jurors after a guilty verdict.

State v. Wright – It is Reversible Error for the Court to Refuse to Individually Poll Jurors

In State v. Wright, decided March 1, 2023, the SC Supreme Court reversed a conviction for assault and battery of a high and aggravated nature (ABHAN) because 1) the court refused the defendant’s request to individually poll the jurors, and 2) denial of a request to individually poll the jurors is “reversible per se” – the defendant does not need to prove prejudice and there is no “harmless error analysis” on appeal.

Another example of a motion that the defense should always make at trial because it is an “automatic reversal” if the court denies it is the Logan circumstantial evidence jury instruction.

Defense counsel is not required to ask for the Logan instruction. But, if the defense asks for it and the Court refuses to give it, it is reversible error if there was circumstantial evidence presented at trial.

Is it Ineffective Assistance of Counsel When a Defense Attorney Does Not Individually Poll Jurors?

The appellate courts will only reverse a conviction on this basis if defense counsel asks the court to individually poll jurors, and, in Green v. State, the SC Supreme Court held that it is not ineffective assistance of counsel for a defense lawyer to not ask the court to poll the jurors.

It is ineffective assistance of counsel, and malpractice, in my opinion, but the SC Supreme Court gets the final say, and the Court’s final say is that trial counsel has “no affirmative duty to request the trial judge poll the jury.”

If defense counsel makes the request and the court denies it, the defendant has a perfect issue on appeal. If defense counsel does not make the request, there is nothing for the appellate court to review and, because the Court has held that it is not ineffective assistance of counsel for an attorney to not make the request, there is no remedy.

If trial counsel makes the request and the court denies it, the Supreme Court says prejudice is presumed and the verdict is “reversible per se.” That makes sense because it would be impossible to prove prejudice when the question was never asked of the jurors.

If trial counsel doesn’t make the request, however, it is not ineffective assistance of counsel… because it is impossible for the defendant to prove prejudice. Even when, as in Green v. State, the foreman said they had “reluctantly” reached a verdict, and another juror was crying when they returned to the courtroom. Because the question was never asked…

These are inconsistent decisions, but it’s the law in SC.

Make the request. Maybe, just maybe, one or more jurors will say that guilty is not their verdict, and maybe, just maybe, the court will deny your request, giving your client a shot on appeal.

Criminal Defense Lawyers in Charleston, SC

Charleston, SC criminal defense attorney Grant B. Smaldone has extensive experience defending clients charged with criminal offenses in South Carolina, including trial experience ranging from relatively minor offenses to acquittals in murder trials.

Call now at (843) 808-2100 or send an email to talk to a Charleston defense lawyer today.