Appellate Insights

Jul 13, 2018 Alana H. Rotter
Count Every Vote

The moment the clerk announces the jury’s verdict can provide a rush of elation or profound disappointment.  Remind yourself in advance that, amidst the emotion, there is one thing that must be handled immediately if your client loses:  polling the jury.

  • Polling the jury has the obvious function of ensuring the verdict’s accuracy—in other words, that a sufficient number of jurors agreed on each question.
  • Jury polls also play a key role on appeal:  A judgment may only be reversed based on a prejudicial error, i.e., where there is a reasonable probability that the error affected the outcome.  The Court of Appeal will be more likely to agree that an error was prejudicial if the jury was divided 9-3 on an issue affected by the error.
  • Because the jury poll may matter on appeal, make sure that a court reporter transcribes the jurors’ answers.

►  The practical message:  Jury polling is truly a now-or-never situation, and the results can be critical to appellate success.  Remember to request the poll, and to ensure that it’s on the record.