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Wisconsin Polling of Jury During Trial Leads to Mistrial

By Jonathan R. Tung, Esq. on May 02, 2016 | Last updated on March 21, 2019

A criminal defendant is entitled to a polling of the jury after a verdict has been reached and announced. But one slip of how the polling is done could basically necessitate a whole new trial. And this is exactly what happened in a Wisconsin federal district court.

The case below discusses interesting aspects of the Fifth Amendment's "overly coercive" doctrine.

Trial and Mis-Polling

A criminal defendant was convicted by a Milwaukee jury and the defense counsel exercised the defendant's right to a polling of the jurors. Each of the jurors was individually asked "Was this and is this your verdict with regard to the defendant, Lemurel E. Williams?" The first juror said "No." It appeared that the presiding judge did not hear juror one and continued to ask all the other jurors who all agreed "Yes."

A re-polling of the jurors revealed the same answers and the lawyers requested a sidebar. The judge ordered the jurors to re-deliberate. When they returned a verdict of guilty to the judge again, he declared the verdict "cured" of any misunderstanding of the earlier question that juror one claimed to be confused over. Appeal followed.

Unconstitutional Coercion

Coercion, the circuit concluded, occurs when any one of the jurors surrenders his or her honest opinion for the purpose of returning a verdict. The court worried that in this case, the one juror who had revealed that she did not believe the defendant was guilty was essentially put in the spotlight as being the only dissenting juror in the entire group, thus persuading her to change her personal vote.

Two major points were clarified in this opinion. First, it is always reversible error to ask a divided jury to reveal its numerical division, but polling a jury that is believed to be unanimous is is different as the latter's purpose is to confirm unanimity. Here, since the verdict here required a unanimous vote, it was pointless for the judge to continue hearing the later votes.

This brought the circuit to the second point: it did not believe that the judge continued in bad faith. Rather it believed that the judge did not hear juror 1 respond in the negative. But the intent of the judge was actually irrelevant. What mattered was that juror 1 revealed herself to be the sole dissenter which could have impermissibly coerced her into later changing her vote to reach a verdict. Since this was contrary to justice, a mistrial was the proper finding.

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