WPI 6.14 Probability of Verdict

Use this instruction when the jury is brought back into the courtroom during deliberations either because the jury has indicated that it may be deadlocked or the judge is contemplating the possible discharge of the jury as a deadlocked jury. Use bracketed material as applicable to find out whether the jury may have a verdict or be able to reach a verdict on some of the claims or as to some of the parties and possibly be deadlocked on others.

All attorneys must be given the opportunity to be present, and a full record must be made of the proceedings.

If the jury indicates it is deadlocked, the judge may consider whether to offer assistance to the jury by using WPI 1.12 (Deadlocked Jury).

This instruction has been modified for this edition to reflect the possibility that the jury is deadlocked as to only some of the parties or some of the claims. The prior version only discussed the jury being deadlocked as to some of the claims.

Inquiry as to the probability of reaching a verdict and the discharge of a deadlocked jury are substantial parts of the trial. Such communication with the jury should be done only in open court, after an opportunity has been given to all attorneys to be present.

CR 51(i) specifically requires any additional instruction to the jury on any point of law to be given in open court and in writing. See State v. Hunsaker, 74 Wn.App. 209, 873 P.2d 546 (1994); State v. Robinson, 9 Wn.App. 644, 513 P.2d 837 (1973), reversed on other grounds, 84 Wn.2d 42, 523 P.2d 1192 (1974).

In Iverson v. Pacific American Fisheries, 73 Wn.2d 973, 442 P.2d 243 (1968), the court specifically admonished that a deliberating jury should not disclose in open court to the judge how they stand numerically on the merits of the case.

In order to determine whether the jury is deadlocked, the court may make certain limited inquiries. The court may poll individual jurors or, in its discretion, the court may rely upon the representations of the presiding juror. See State v. McCullum, 28 Wn.App. 145, 622 P.2d 873 (1981) (not error under the circumstances to poll each juror), reversed on other grounds, 98 Wn.2d 484, 656 P.2d 1064 (1983). Regardless of the method used, the court must take pains to avoid coercing or interfering with the jury's deliberations. State v. Dykstra, 33 Wn.App. 648, 656 P.2d 1137 (1983). Care must be taken in any inquiry not to coerce the jury into reaching a verdict. State v. Ford, 171 Wn.2d 185, 192, 250 P.3d 97 (2011) (A claim of judicial coercion requires a showing that the jury was still within “its deliberative process” and was still undecided at the time of the inquiry).

The length of deliberations is not sufficient basis by itself for the judge to discharge a jury. State ex rel. Charles v. Bellingham Mun. Court, 26 Wn.App. 144, 612 P.2d 427 (1980). Similarly, it was error to discharge a jury based on the jurors' statement that they could not reach a verdict within the next ninety minutes, without agreement from all jurors that they were hopelessly deadlocked. State v. Jones, 97 Wn.2d 159, 641 P.2d 708 (1982).

If it is determined that the jury is deadlocked, the judge may consider whether to offer assistance to the jury or give any additional instruction. See WPI 1.12 (Deadlocked Jury). Any additional instruction must be cautiously worded to avoid any suggestion of coercion. See State v. Watkins, 99 Wn.2d 166, 660 P.2d 1117 (1983).