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Judge on the Jury: Hearkening, then and now

In the winter of 1892, the schooner Martha E. Moore was discovered by the authorities to have been illegally dredging for oysters within the “prohibited waters” of the Chesapeake Bay. The Anne Arundel County Grand Jury indicted the schooner master, Thomas Givens, for a violation of the General Oyster Law of the State and, after a jury trial in the circuit court, Captain Givens was found guilty of the offense and sentenced to serve 12 months in the Maryland House of Corrections.
In the Maryland Court of Appeals, Givens’ lawyer raised only a single seemingly minor issue, the failure of the trial court to “hearken” the verdict, i.e. to inquire in open court, before the jurors are discharged, whether the jury agrees with the verdict just announced by the foreperson. The Court of Appeals found the practice to be required “to secure certainty and accuracy, and to enable the jury to correct a verdict which they have mistaken, or which their foreman has improperly delivered….” Givens v. State of Maryland, 76 Md. 485, 488 (1893)

Apparently to insure that trial courts understood the procedure to be followed, the court spelled out exactly how the verdict should be taken. After the foreperson announces the verdict in open court and the clerk records the verdict, the clerk addresses the jury and says:

“Hearken to your verdict as the Court hath recorded it. You say that [name of defendant] is guilty (or not guilty) of the matter whereof he stands indicted, and so say you all.”

The jury is addressed collectively and some indication of affirmation is expected and would be shown on the record.

The commands of the Givens case were obviously taken to heart by the trial courts and to this day, more than a century later, its precise language is still used in most Maryland counties at the conclusion of every jury trial, civil or criminal, before the jury is discharged.

Waiver at issue

Despite its ancient pedigree, the concept of “hearkening” the verdict is not found in the Maryland Rules that deal with taking a verdict, see Maryland Criminal Rule 4-327 and Maryland Civil Rule 2-522, but the related and more specific procedure of polling the jury is.

Under the criminal rule, Rule 4-327 (e), on request of a party or on the court’s own initiative, the jury shall be polled after it has returned a verdict and before it is discharged. It is generally understood that polling requires each juror to be individually questioned as to whether the verdict the foreman announced is in fact the juror’s verdict. If a juror does not unanimously concur in the verdict, the court may direct the jury to retire for further deliberations or the court can discharge the jury if it appears that a unanimous verdict cannot be reached. The civil rule, Rule 2-522 (b), is similar.

Since an individual poll is the right of a party “on request,” failure to request a poll waives the right. Jones v. State, 173 Md. App. 430, 454 (2005).

However, even if a party fails to request a polling, the party may still have an argument that the verdict is invalid if the court or the clerk fails to hearken the jury. The issue is currently before the Court of Appeals in a case argued this month.

In State v. Santiago, September Term 2009, No. 14, the defendant was convicted in the Circuit Court for Charles County of second degree murder and related handgun offenses and received sentences totaling 55 years.

After the jury foreman returned the verdict in open court, the trial judge asked defense counsel and the prosecutor if there was “[a]nything further for the jury?” Both attorneys replied that there was nothing. The judge thanked the jurors and dismissed them. Apparently by inadvertence, the clerk did not ask about polling nor was there a harkening of the verdict.

The Court of Special Appeals in an unreported opinion found that the defendant’s failure to request a polling of the jury, or otherwise object to the regularity of the verdict at trial, did not affect the defendant’s ability to challenge it on appeal. Because the jury was neither polled nor hearkened the Court of Special Appeals found the verdict defective and a new trial was ordered. It rejected the state’s claim that defense counsel had waived the rights to both polling and hearkening; instead, it found that “a criminal defendant has an absolute unwaivable right to have the jury polled, if requested, or if not, hearkened.” Santiago v. State, No. 633, September Term 2006, page 5 (Nov. 18, 2008).

Regardless of how the Court of Appeals may rule, counsel and the trial court should make certain there is no ambiguity about each juror’s agreement to the verdict stated in open court before the jury is dismissed. For the prevailing party, the trial court’s failure to comply with the requirement may result in the hard-won victory being wiped away and a new trial ordered. A losing party, like Captain Givens, may be able to parlay that seemingly minor omission into vacation of the verdict and the opportunity for a new trial.

An interesting ethical problem is presented where counsel for the losing party realizes the trial court is in the process of discharging the jury without inquiring about polling or hearkening the jury, but says nothing. Can counsel wait until after the jury is discharged before calling the court’s attention to the error, when the court at that point will have no option but to declare a mistrial and order a new trial?

The case law that has developed on hearkening in Maryland has all been in criminal cases and there is no guidance on whether harkening of the jury for civil cases will be given the same importance. The criminal cases have relied on Article 21 of the Maryland Declaration of Rights which requires a unanimous verdict in criminal cases. See, e.g., Jones v. State, 384 Md. 669, 683 (2005). In civil cases, this constitutional provision would not apply and its absence may justify a less drastic result in cases where the verdict was inadvertently not hearkened.

Challenging inconsistencies

In another development relating to jury verdicts, the Court of Appeals by order of Sept. 10, 2009 decided to reject a proposal by the Rules Committee that would have required any objection to a jury’s verdict in criminal cases for inconsistency to be made before the jury is discharged to allow the trial court an opportunity to remedy the error.

The proposed rule was seen as needed in response to the Court of Appeals decision in Price v. State, 405 Md. 10 (2008) which in a major shift in Maryland law allowed inconsistency challenges to be made but was silent about when the challenges had to be raised.

No reason was stated for the proposed rule’s rejection. One can expect further appellate litigation on this issue and an early clarification of the course that must be taken to preserve the issue is not at hand.

This column is 20th in an occasional series on jury trial issues by Howard County Circuit Judge Dennis M. Sweeney, retired, who chairs the Judiciary’s Committee on Jury Use and Management. Judge Sweeney can be reached at judgesweeney@mac.com.