WPIC 4.70 Probability of Verdict

Use this oral 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 counts or as to some of the defendants and possibly be deadlocked on the others. If the presiding juror cannot or does not give satisfactory answers, the question or questions may be asked of each juror. It is not proper to give any further instruction to an apparently deadlocked jury as to the need for agreement, or the consequences of no agreement, or to suggest the length of time the jury will be required to deliberate. See WPIC 4.81 (Deadlocked Jury).

The defendant and both attorneys must be present and a full record must be made of the proceedings whenever a deliberating jury is brought back into the courtroom.

Introduction. Judges “must tread a narrow and dangerous course” when inquiring into, and making decisions about, a potentially deadlocked jury. See State v. McCullum, 28 Wn.App. 145, 150, 622 P.2d 873 (1981), reversed on other grounds, 98 Wn.2d 484, 656 P.2d 1064 (1983). A judge who inquires too early, too often, or too directly may improperly interfere in the jury's deliberations, resulting in a mistrial on the grounds of judicial coercion. Yet, a judge who makes insufficient inquiry may lack a proper basis for declaring a mistrial and discharging the jury, in which case double jeopardy may preclude a retrial. See State v. Jones, 97 Wn.2d 159, 163–64, 641 P.2d 708 (1982); State v. McCullum, 28 Wn.App. at 151. “The difficult decision of whether to discharge a jury in a particular case may be made easier by cautious inquiry with the accused and counsel present.” State v. McCullum, 28 Wn.App. at 151. For a general discussion of these issues, see generally Ferguson, 13 Washington Practice, Criminal Practice and Procedure, section 4611 (3d ed.), and Turner, 4A Washington Practice, Rules Practice CrR 6.10 (7th ed.). The inquiry must be cautious, for on some topics no inquiry is permitted. See State v. Linton, 156 Wn.2d 777, 132 P.3d 127 (2006) (when an unable-to-agree instruction is used and the jury returns a guilty verdict on a lesser included offense, the judge may not inquire about the status of the jury's deliberations on the greater offense).

CrR 6.15(f)(2)—Prohibition against coercing a verdict. Criminal Rule 6.15(f)(2) prohibits a judge from instructing a deliberating jury “in such a way as to suggest the need for agreement, the consequences of no agreement, or the length of time a jury will be required to deliberate.” See also CrRLJ 6.15(e)(2). The rule's purpose is to prevent judicial interference in the deliberative process. State v. Boogaard, 90 Wn.2d 733, 736, 585 P.2d 789 (1978).

Additionally, the trial judge should not inquire as to the numerical split of the jurors as to a verdict, even if the question does not require the jurors to identify whether the split was in favor of conviction or acquittal. State v. Boogaard, 90 Wn.2d at 738–40; see also Iverson v. Pacific American Fisheries, 73 Wn.2d 973, 442 P.2d 243 (1968) (specifically admonishing that a deliberating jury should not disclose in open court to the judge how they stand numerically on the merits of the case). If jurors communicate the numerical split of their vote, even if this information is not requested, the judge will need to take even greater care so as not to appear to be coercing jurors into abandoning their positions, but the McCullum opinion demonstrates that such a jury can still be returned for further deliberations under proper procedures. See State v. McCullum, 28 Wn.App. at 149–153.

Under many circumstances, the judge may query individual jurors about the chances of reaching a verdict. See, e.g., State v. McCullum, 28 Wn.App. at 149–53. But extending this inquiry beyond the presiding juror constitutes a more probing inquiry and in closer cases the practice may increase the risk of a later finding of coercion. See, e.g., State v. Boogaard, 90 Wn.2d at 739 (“When [the trial judge] called the jury into the courtroom, asked the foreman to disclose the history of the vote, asked for his opinion on the probability of agreement within a half hour, and then inquired of each juror whether or not he believed a verdict could be reached in that length of time, it was inevitable that the minority jurors should feel the pressure of judicial influence.”).

Boogaard, McCullum, and other cases show that appellate courts will weigh the totality of the circumstances in determining whether a verdict was coerced. In addition to the factors listed above, other factors can also bear on the issue, especially in closer cases, such as (1) whether, after a judge's inquiry, the jury reaches a verdict after a short or long time, (2) whether the judge polls individual jurors as to the jury's chances of reaching a verdict, especially if the jury has already indicated the numerical split of its vote, and (3) whether the judge's inquiry takes place only after the jury has already indicated in a note that it is deadlocked. State v. McCullum, 28 Wn.App. at 152–53 (regarding items 1 and 2); State v. Boogaard, 90 Wn.2d at 739–40 (regarding items 1 and 2); State v. Barnes, 85 Wn.App. 638, 657, 932 P.2d 669 (1997) (regarding item 3); State v. Fish, 99 Wn.App. 86, 91–92, 992 P.2d 505 (1999) (regarding item 3).

For a discussion of related issues, see the Comment to WPIC 4.67 (Questions by Jury Addressed to Court).

CrR 6.10—Prerequisites for discharging an apparently deadlocked jury. Under CrR 6.10, a judge may discharge deadlocked jurors “on consent of both parties or when it appears that there is no reasonable probability of their reaching agreement.” See also CrRLJ 6.10. There must be “a factual basis for the exercise of the discretion to discharge a jury; ‘extraordinary and striking circumstances’ must exist before the judge's discretion can come into play.” State v. Jones, 97 Wn.2d at 164; see also State v. Barnes, 85 Wn.App. at 656. The Jones court explained further:

State v. Jones, 97 Wn.2d at 164; see also State v. Fish, 99 Wn.App. at 90.

The court may rely upon the representations of the presiding juror regarding whether the jury is deadlocked. State v. Barnes, 85 Wn.App. at 657. Although the “jury's own assessment that it is deadlocked, while helpful, is not sufficient grounds for declaring a mistrial.” State v. Taylor, 109 Wn.2d 438, 443, 745 P.2d 510 (1987), disapproved of on other grounds, State v. Labanowski, 117 Wn.2d 405, 816 P.2d 26 (1991). If jurors are not unanimous as to whether they are deadlocked, the judge may return them for further deliberations, but in doing so the judge must not suggest a desired outcome, nullify prior instructions on the duty to deliberate, or suggest particular time constraints. State v. Lee, 77 Wn.App. 119, 889 P.2d 944, reversed on other grounds, 128 Wn.2d 151, 904 P.2d 1143 (1995).

In exercising discretion, the judge should consider the length of time the jury has been deliberating in light of the length of the trial and the volume and complexity of the evidence. State v. Jones, 97 Wn.2d at 164; State v. Fish, 99 Wn.App. at 90; State v. Barnes, 85 Wn.App. at 657. The length of deliberations is not sufficient by itself for the judge to discharge a jury. State v. Dykstra, 33 Wn.App. 648, 656 P.2d 1137 (1983); Charles v. Bellingham Mun. Ct., 26 Wn.App. 144, 612 P.2d 427 (1980).

The court may also consider the jury's progress toward a verdict. State v. Jones, 97 Wn.2d at 164; State v. Taylor, 109 Wn.2d at 443. Accordingly, the trial court may, carefully, inquire as to whether the jury has reached a verdict on one or more counts or defendants, even though the jury may be deadlocked on other counts or defendants. State v. Edwards, 15 Wn.App. 848, 552 P.2d 1095 (1976); see also CrR 6.16(a) (recognizing that jurors may return a verdict against fewer than all defendants and be hung on the others); CrRLJ 6.16(a) (same); cf. State v. Eaton, 20 Wn.App. 351, 582 P.2d 517 (1978) (recognizing that the judge is not required to ask about individual counts if the jury is being returned to the jury room for further deliberations). Great care is needed in asking such questions so that they do not venture into areas prohibited under CrR 6.15(f)(2), as discussed above.

Trial judges have discretion in deciding how detailed to be in questioning the jury as to its chances of reaching a verdict. State v. Barnes, 85 Wn.App. at 657; State v. Fish, 99 Wn.App. at 91–92. The questioning need not be as intensive when other circumstances, such as information in notes sent out from the jury room, already provide a good indication of deadlock. State v. Barnes, 85 Wn.App. at 657; State v. Fish, 99 Wn.App. at 91–92.

In Jones, the Supreme Court held that the record did not establish extraordinary and striking circumstances justifying a mistrial. In that case, following a four-day trial involving complicated issues of circumstantial evidence as to consent in a rape case, the jury deliberated from late morning until late that night. The judge called the jurors into the courtroom and asked them if they could return a verdict within the next 90 minutes. When the answer was “no,” the judge discharged the jury. The Supreme Court held that, because the judge did not inquire as to the possibility of the jury reaching a verdict if it returned the next day, the record “did not establish that the jury considered itself genuinely deadlocked, but only that, in the middle of the night, it could not reach a verdict within 90 minutes.” State v. Jones, 97 Wn.2d at 166.

Presence of defendant and counsel. The defendant has a constitutional right to be present, and to have counsel present, for communications between the judge and jury. State v. Bourgeois, 133 Wn.2d 389, 407, 945 P.2d 1120 (1997) (addressing communication between the bailiff, acting as the judge's “alter-ego,” and a juror outside the presence of the defendant); State v. Caliguri, 99 Wn.2d 501, 508, 664 P.2d 466 (1983) (addressing the defendant's right to be present when evidentiary audio tapes were replayed for deliberating jurors); State v. Rice, 110 Wn.2d 577, 613, 757 P.2d 889 (1988) (holding that a defendant's constitutional rights to be present and to be represented by counsel apply to a judge's communication with a deliberating jury).