Lesson From U.S. v. Henderson: Don't Give Up, Poll the Jury

The Tenth Circuit issued an opinion today in United States v. Henderson that demonstrates the importance of polling the jury when you get a verdict against you.

In 2011, former Tulsa, Oklahoma, police officer Jeff Henderson was convicted of several counts during a corruption trial and was sentenced to 42 months in prison, Tulsa's KOTV reports. The most interesting issue on appeal was this: Was Henderson denied his constitutional right to a unanimous jury, given that one juror was instructed by the foreman that she was not permitted to change her guilty vote?

The court decided no. Henderson attached an affidavit from the juror, but the court did not consider it, citing Rule 606(b) of the Federal Rules of Evidence, which provides:

(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury's deliberations; the effect of anything on that juror's or another juror's vote; or any juror's mental processes concerning the verdict or indictment. The court may not receive a juror's affidavit or evidence of a juror's statement on these matters.

The court noted that the jury had been polled. It adhered to the evidence rule as written and upheld the conviction.

The Takeaway

What lesson does this case have for practitioners? Poll the jury if the verdict goes against you. (But don't poll the jury if you win -- there's nothing to gain and everything to lose.) Naturally, jurors will feel strong pressure to just say yes, they agreed with the verdict and let's go home, but try to draw them out. You won't want to pepper each juror with questions, but you can probably ask each juror one probing question. The other jurors will hear, and it might get them thinking. In hindsight, a good question in this case would have been, "Did you feel free to change your guilty vote to not guilty?"

What questions do you ask when you poll a jury? Please join the conversation on the FindLaw for Legal Professionals Facebook page.

Related Resources:

• Never Give Up: You Never Know When the Tide Might Turn (ABA)
• Does a Jury Oath Really Matter? (FindLaw's U.S. Tenth Circuit Blog)
• Can't Sit on a Jury? Then Civil Rights Not Fully Restored (FindLaw's U.S. Tenth Circuit Blog)
• Starting Out in Criminal Defense? Here Are Some Mistakes to Avoid (FindLaw's Strategist)