WPI 1.08 Concluding Instruction—For General Verdict Form

Use this instruction when general verdict forms are being used. See WPI 45.01 (General Verdict Forms—Single Plaintiff and Defendant), WPI 45.01.01 (General Verdict Forms—Single Plaintiff and Multiple Defendants), WPI 45.01.02 (General Verdict Forms—Multiple Plaintiffs and Single Defendant), and WPI 45.20 (General Verdict Forms—Personal Injury/Wrongful Death—Single Defendant—No Contributory Negligence—No “Empty Chairs”—Separate Damage Elements) for general verdict forms. This concluding instruction may be adapted as necessary to fit the case depending upon the verdict form used. If a special verdict form is used, use WPI 1.11 (Concluding Instruction—For Special Verdict Form) instead of this instruction.

For examples of directions for using verdict forms in common types of cases, see WPI 1.09 (Use of General Verdict Forms for Single Plaintiff and Defendant) and WPI 1.10 (Use of General Verdict Forms for Multiple Defendants). Use them as inserts in this basic concluding instruction. In the blank before “verdict form[s]” in the second paragraph, insert “a” or the number of verdict forms that the jury will receive.

For a directed verdict or admitted liability case, refer to the form of verdict in the singular. Use Verdict Form A of WPI 45.01 (General Verdict Forms—Single Plaintiff and Defendant), WPI 45.01.01 (General Verdict Forms—Single Plaintiff and Multiple Defendants), WPI 45.01.02 (General Verdict Forms—Multiple Plaintiffs and Single Defendant), and WPI 45.20 (General Verdict Forms—Personal Injury/Wrongful Death—Single Defendant—No Contributory Negligence—No “Empty Chairs”—Separate Damage Elements).

Jurors may also be provided with suggested deliberation procedures, see WPI 6.18 (Suggestions for Deliberation Procedures). If this is done, the two instructions must be kept distinct and should be read to the jurors at different times. See the Note on Use and Comment to WPI 6.18 (Suggestions for Deliberation Procedures).

New to this edition is the second paragraph of the instruction, which encourages all members of the jury to be responsible for ensuring that decisions are made based solely on the evidence and not upon preconceived biases or prejudices. The United States Supreme Court in Peña-Rodriguez v. Colorado, U.S. , 137 S. Ct 855, 869, 197 L.Ed.2d 107 (2017), concluded that the general rule against impeaching a jury verdict must fall when a juror has indicated that he or she relied on racial animus or stereotypes in reaching the verdict. See also Turner v. Stime, 153 Wn.App. 581, 222 P.3d 1243 (2009).

For a discussion of other issues involving both conscious and unconscious bias, see the Comment to WPI 1.01 (Advance Oral Instruction—Beginning of Proceedings).

CR 51(h) provides that:

See the Comment to WPI 1.02 (Conclusion of Trial—Introductory Instruction) for a discussion of exhibits.

The instruction incorporates the Jury Commission's recommendation that the final jury instructions inform the jurors as to the procedures for submitting questions to the court during deliberations. Washington State Jury Commission's Report to the Board for Judicial Administration, Recommendation 39 (July 2000) (for text see Appendix G in this volume). See CR 51(i) and CRLJ 51(i).

O'Brien v. City of Seattle, 52 Wn.2d 543, 327 P.2d 433 (1958), emphasizes that the court should avoid even the appearance of the judge or bailiff communicating in any way with a jury on any point of law after it has started to deliberate except in open court. In State v. Robinson, 9 Wn.App. 644, 513 P.2d 837 (1973), the Court of Appeals found that a judge who answered a question for the jury through an open jury room door violated a statute that was substantially the same as CR 51(i), but held that the error was not prejudicial and did not constitute grounds for reversal. On appeal, the Washington Supreme Court found it unnecessary to consider whether the procedure used by the trial judge was reversible error, because the court had already reversed the case on substantive grounds. State v. Robinson, 84 Wn.2d 42, 523 P.2d 1192 (1974).

A negative reply by the court to a request for further instruction is not reversible error and does not violate the open court rule even though it is not done in open court in accordance with the rule. State v. Lewis, 37 Wn.2d 540, 225 P.2d 428 (1950).

Ex parte communications with jurors may also violate the Code of Judicial Conduct. CJC 2.9.

CR 47(i)(2) prohibits the bailiff from making or allowing any communication to jurors while they are deliberating that may affect the case. “As a general rule, a trial court should not communicate with the jury in the absence of the defendant. The bailiff is in a sense the ‘alter-ego’ of the judge, and is therefore bound by the same constraints.” State v. Bourgeois, 133 Wn.2d 389, 407, 945 P.2d 1120, 1129 (1997) (citations omitted).

It is error for the judge to have the bailiff orally define a term for a deliberating jury, State v. Saraceno, 23 Wn.App. 473, 596 P.2d 297 (1979) (error was harmless in that case), and for the bailiff to provide a dictionary for jurors. Adkins v. Aluminum Co. of America, 110 Wn.2d 128, 750 P.2d 1257 (1988) on denial of reconsideration, 756 P.2d 142 (Wash. 1988). Directing the bailiff to give a jury an oral response to a request for clarification of an instruction is error. State v. Russell, 25 Wn.App. 933, 611 P.2d 1320 (1980) (error was harmless in that case). These restrictions do not apply to the duty of the bailiff to take care of housekeeping needs, eating, lodging, personal arrangements, and family messages for jurors. See State v. Smith, 43 Wn.2d 307, 261 P.2d 109 (1953); State v. Carroll, 119 Wash. 623, 206 P. 563 (1922).