In the classic book, To Kill a Mockingbird, Scout describes the courtroom scene when the judge is polling the jury, and her brother jerks each time the word “guilty” is repeated. It’s a dramatic scene, made more dramatic by the repetition. But polling a jury isn’t intended to create drama or hammer home the verdict. It’s a procedure meant to ensure that each of the jurors really agrees with the verdict—and to give them a last chance to change their minds.
When Does a Judge Have to Poll the Jury?
In a criminal trial, after the jury has finished its deliberations, the jurors return to the court with their collective decision about the defendant’s guilt (or their inability to agree). In federal and state courts, that decision must be unanimous.
Typically, the head juror (or “foreperson”) will announce the verdict to the judge, either orally or in a note that the judge will then read aloud. If one of the parties—the defendant or the prosecutor—has a reason to doubt whether all of the jurors really agree, either may ask the judge to poll the jury. Some states also allow judges to poll juries even if neither of the parties requested it.
Generally, the judge must grant the request, as long as it was made after the verdict was announced but before the judge lets the jury go. Courts have also found that judges must give the parties a reasonable amount of time to ask for a poll before the verdict is recorded and the jury dismissed. In a few states, such as Massachusetts and Connecticut, the judge doesn’t necessarily have to agree to the request.
(State v. Villaneuva, 689 A.2d 1141 (Conn. Ct. App. 1997); Com. v. Dias, 646 N.E.2d 1065 (Mass. Sup. Jud. Ct. 1995).)
What Happens During Polling of the Jury?
During the polling of the jury, the judge will ask each individual juror, one by one, if the individual agrees with the verdict that the foreperson reported. Usually, a “yes” or “no” answer is enough to settle the question.
Sometimes, however, a juror’s response may seem confused, evasive, or ambiguous. In that case, the judge may ask a follow-up question to clarify that individual’s position. For instance, clarification was needed when a juror responded, "reluctantly, yes" during polling. (Bishop v. State, 670 A.2d 452 (1996).)
Still, jury polling is different than the kind of questioning judges may carry out when juries are deadlocked. Courts have generally found that during the polling, judges should not continue questioning jurors who’ve made it clear they disagree with the verdict. Individuals who had been holdouts during lengthy deliberations may have felt pressured to go along with the rest of the jury, or they may simply have been exhausted by the deliberations. Once they’re asked to say what they really believe, away from the jury room and in front of the court, they might change their minds. And they’re allowed to do that at this point in the proceedings (though not once the jury is let go).
Defendants and prosecutors don’t have the right to cross-examine jurors about the verdict. Even when jurors have previously complained about being bullied in the jury room, courts have found that defendants aren’t entitled to have the judge ask how individual jurors arrived at their decisions, after they’ve clearly responded during the polling that they agreed with the verdict. (Bethea v. Com., 809 S.E.2d 684 (Va. Ct. App. 2018).)
What Happens After Jury Polling?
If the judge is satisfied that each member of the jury agrees with the verdict, that’s the end of it: The verdict will be entered in the court record. But if the polling shows that a juror disagrees, the judge may send the jury back for further deliberations, so they can come to full agreement, or declare a mistrial. (Fed. R. Crim. P. 31 (2023).)
Appealing a Conviction Based on Polling Errors
Appellate courts might reverse a criminal conviction if the trial judge violated the rules for jury polling. Depending on the specific circumstances and the jurisdiction (which state or federal court where your trial took place), you may be able to challenge your conviction by arguing, for example, that the judge denied your prompt request for polling of the jury, continued with the polling after it was clear that a juror disagreed with the verdict, or coerced a juror during the polling to change a vote.
If you’re concerned that polling errors may have led to your conviction, speak with your lawyer for more information. You might want to consult an attorney who handles criminal defense appeals.