Instruction 2.500, Criminal Model Jury Instructions for Use in the District Court

TAKING THE VERDICT AND DISCHARGING THE JURY

When the defendant, the attorneys and the jury have all reassembled in the courtroom:

Clerk: Will the jury please rise. Will the defendant also please rise

and face the jury. Mr. Foreman (Madam Forelady), has your jury agreed

upon a verdict (your verdicts)?

Foreperson: “Yes” or “We have.”

Clerk: What say you, Mr. Foreman (Madam Forelady), as to complaint

number _______, wherein the defendant is charged with ______________,

is he (she) guilty or not guilty?

If the verdict is guilty and the judge has submitted a lesser-included offense to the jury:

Guilty of what?

Members of the jury, hearken to your verdict as the court will record

it. You, upon your oath, do say that the defendant is (guilty) (not guilty) of

[offense] on complaint number ______ . So say you, Mr. Foreman

(Madam Forelady). So say you all, members of the jury.

If there are multiple charges: And as to complaint number ________,

wherein the defendant is charged with. . . .

Continue as above for each additional charge.

If defendant has been acquitted on all charges: [Name of defendant] , the jury

having returned (a) verdict(s) of not guilty on this (these)

complaint(s), the Court orders that you be discharged and go

without day on this (these) complaint(s).

See Jury Trial Manual for Criminal Offenses Tried in the District Court, Appendix VIII.

“A judge should observe the jury while they affirm their verdict in open court. If it appears that a juror

does not agree with the verdict, inquiry should be made or the jury should be polled.” Commonwealth

v. Floyd P., 415 Mass. 826, 829 n.5, 615 N.E.2d 938, 941 n.5 (1993). See supplemental instruction

1, infra, for a formulary for polling the jury. A verdict should not be recorded if any juror expresses

dissent from the verdict. Commonwealth v. Nettis, 418 Mass. 715, 718 n.3, 640 N.E.2d 468, 471 n.3

(1994). If there is such dissent, the judge may either direct the jury to continue their deliberations, or

declare a mistrial. Commonwealth v. Fernandes, 30 Mass. App. Ct. 335, 345, 568 N.E.2d 604, 610

(1991). See supplemental instruction 2, infra, for a charge directing the jury to return to deliberations.

DISCHARGING THE JURY

Judge: Members of the jury, during this trial I told you in my

instructions that the verdict was your responsibility and your responsibility

alone. For that reason, I never comment to the jury on the verdict they

have reached. I will say to you, though, that it is clear that you took your

responsibilities very seriously, and that you approached your decision

carefully and conscientiously.

Your jury service is now complete. On behalf of all the people of the

Commonwealth, as well as the parties involved in this case, I thank you for

that public service.

Jury service is not only one of the burdens of citizenship, it is also

one of its privileges. As a foreign visitor observed almost 175 years ago,

in the United States jury service “invests the people. . . with the direction

of society.” I hope that your time here has increased your understanding

of how important jury service is to the workings of a democracy. I hope

also that you have learned something about how our courts function, and

how much they need your interest and your support as citizens.

The court officer will now escort you back to the jury assembly room,

where you will be discharged. Thank you again.

When discharging the jury, the judge may thank the jurors for their public service, but should not

praise or criticize the jury’s verdict. 2 ABA Standards for Criminal Justice, Trial by Jury § 15-4.6 (2d

ed. 1980). See Commonwealth v. McGrath, 364 Mass. 243, 246, 303 N.E.2d 108, 111 (1973);

Commonwealth v. Dane Entertainment Servs., Inc., 18 Mass. App. Ct. 446, 450, 467 N.E.2d 222, 226

(1984).

The first paragraph of the model instruction is drawn from L.B. Sand, J.S. Siffert, W.P. Loughlin & S.A.

Reiss, 1 Modern Federal Jury Instructions 9-13 (Nov. 1990 supp.). The reference in the third

paragraph is to Alexis DeTocqueville, Democracy in America (1835) (“[T]he institution of the jury

raises the people itself, or at least a class of citizens, to the bench of judicial authority [and] invests

the people, or that class of citizens, with the direction of society”), quoted in Powers v. Ohio, 499 U.S.

400, 407, 111 S.Ct. 1364, 1368 (1991).

SUPPLEMENTAL INSTRUCTIONS

1. Polling the jury. Clerk: Juror No. ____ , what say you, is the

defendant guilty or not guilty? or Juror No. ____ , is the verdict

announced by the (foreman) (forelady) your verdict?

Any request to poll the jury must be made “before the verdict is recorded” (Mass. R.

Crim. P. 27[d]). After the verdict has been recorded, a judge should not allow a

request for polling unless a juror has expressed a public disagreement with the

verdict as it is being taken or recorded. Once a verdict is received, affirmed and

recorded, “neither a juror’s change of heart nor a juror’s subsequent disclosure of a

subjective disagreement with her apparent vote provides a basis for vacating the

verdict.” Commonwealth v. Reaves, 434 Mass. 383, 395, 750 N.E.2d 464 (2001).

Whether the jury should be polled is within the judge’s discretion. Mass. R. Crim. P.

27(d). See Jury Trial Manual for Criminal Offenses Tried in the District Court § 2.87.

2. Return to deliberations after polling. The clerk has just polled each

of you, asking whether the verdict read to me was the decision

reached by each and every one of you. It is apparent that the

verdict in this case may not be unanimous; that one or more of

you may not have agreed with it. Please return to the jury room,

talk with one another, and try to deliberate there. Try to reach an

agreement if you can. Do not hesitate to reexamine your own

opinions and change your mind, but do not give up your honest

beliefs just because others disagree with you or just to get the

case over with. Your verdict in a criminal case, whatever it is,

must be unanimous.

The model instruction is based on Federal Judicial Center, Pattern Criminal Jury

Instructions § 59 (1983 ed.).

3. Where jury is permitted to remain for sentencing. Now that your term

of service as jurors is ended, I invite you to remain in the

courtroom for a few more minutes while I impose sentence.

It is often said that there are several goals of sentencing:

to protect the public in the future, to punish the defendant for

breaking the law, to rehabilitate the defendant to live within the

law, to deter others from breaking the law, and in some cases to

make restitution available to the victim.

The Legislature has set the outside parameters within

which the sentence for this offense must fall. Within those

parameters, it is my responsibility as a judge — and often not an

easy one — to try to balance those differing goals with each

other in a sentence that does justice both for the defendant and

for our society.

See District Court Standards of Judicial Practice, Sentencing and Other

Dispositions § 1.01 (September, 1984).

4. Not discussing details of deliberations. Before I dismiss you, I want

to say a few words about any inquiries you might receive about

this case. Now that the case is over, my authority to give you

instructions is also over. But I want to offer you some

suggestions which I will simply ask you to think about.

You are not obliged to answer any questions that anyone

may ask you about this case. There is no rule that prohibits you,

once you are discharged, from discussing your jury service with

anyone you choose to. But it is my recommendation that you

not discuss with outsiders the details of your deliberations and

how you came to reach your verdict.

From where you sit, you can see that rail in front of you

which separates you jurors from the rest of us and from the

public. That rail is a symbol of the privacy that jurors have

traditionally accorded each other, and have been entitled to from

the rest of us. Obviously, it is crucial, in order for our jury

system to work, that jurors feel completely free to speak their

mind during deliberations, without worrying about being

embarrassed or pestered after their term of service is over.

Former jurors must be able to resume their private lives without

owing an explanation or justification to anyone. For that reason,

it is normally in the best interests of future jurors for you to

continue the longstanding tradition that jury deliberations

remain private, even after the verdict.

If a situation ever arises where justice requires that former

jurors be interviewed, that can always be done under the

supervision of the Court. In that way, the integrity of the jury

system is preserved and former jurors are not bothered

unnecessarily.

Particularly in a case of public notoriety, it may be appropriate to explain to jurors

that, although they have the right to speak with the press and others about the

details of their deliberations, the confidentiality of jury deliberations is essential to the

freedom and independence of future juries, in order to avoid the embarrassment and

chilling effect that expected publication of deliberations would cause, and in order to

discourage the harassment of jurors by defeated parties. Clark v. United States, 238

U.S. 1, 12-13, 53 S.Ct. 465, 468-469 (1933); Commonwealth v. Smith, 403 Mass.

489, 499, 531 N.E.2d 556, 562 (1988) (Abrams, J., concurring); Woodward v. Leavitt,

107 Mass. 458, 460 (1871); Cook v. Castner, 9 Cush. 266, 278 (1852); Hannum v.

Belchertown, 19 Pick. 311, 313 (1837).

A post-verdict “searching or pointed examination of jurors in behalf of a party to a

trial is to be emphatically condemned. It is incumbent upon the court to protect jurors

from it.” Commonwealth v. Fidler, 377 Mass. 192, 202-204, 385 N.E.2d 513, 519-

520 (1979), quoting from Rakes v. United States, 169 F.2d 739, 745-746 (4th Cir.),

cert. denied, 335 U.S. 826 (1948).

The model instruction is based in part upon a traditional instruction utilized for jury

pools and cited favorably by the Supreme Judicial Court, Fidler, 377 Mass. at 201

n.9 & 204 n.12, 385 N.E.2d at 519 n.9 & 520 n.12; see Jury Trial Manual for Criminal

Offenses Tried in the District Court § 2.88, in part upon R. L. McBride, The Art of

Instructing the Jury §§ 3.69-3.71 (1969), and also upon L.B. Sand, J.S. Siffert, W.P.

Loughlin & S.A. Reiss, 1 Modern Federal Jury Instructions 9-13 (Nov. 1990 supp.).