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Must confirm jury verdict in open court [NOT FINAL]

Washburn student intern David Becker and I won in State v. Johnson, No. 99,102 (Kan. App. Dec. 31, 2008) reversing and remanding a Cheyenne County DUI conviction for a new trial due to failure confirm the jury's verdict in open court. The circumstances are probably pretty rare, but all lined up to cause the COA to question whether there was a unanimous verdict in the case. And where the district court failed to comply with K.S.A. 22-3421 to confirm the jury's verdict in open court, the COA reversed:

The statutory mandate under K.S.A. 22-3421 and K.S.A. 60-248(g) requiring the trial court to ask the jury in open court whether the verdict is their verdict is a safeguard to prevent error or misunderstanding. Because K.S.A. 22-3421 gives a juror a chance to express a last minute dissent, it cannot be said that Johnson was not prejudiced by the trial court's failure to inquire into whether the jury had agreed with the published verdict. As a result, the trial court's failure to follow the statutory mandate of K.S.A. 22-3421 to inquire as to whether the verdict was the jury's verdict amounted to reversible error in this case.

The COA provides a nice historical dicussion of verdict procedures in this case. Although some of these procedures may seem pretty antiquated or formalistic, they have a purpose. It gives the juror a last chance to express disagreement. After argument in this case, Cal Williams noted a case from his past where when the judge asked the jury "Is this your verdict?" one juror broke down and disagreed. Maybe some readers have other examples. Although rare, it can happen.

On a related note, we had also claimed that the district court should have polled the jury unless it had obtained an affirmative waiver from the parties (which it did not in this case--it just never asked). The COA ruled that failure of the party to affirmatively ask for polling constituted waiver, even where district court never gave the option to counsel.

So my question is, why would either party affirmatively (or implicitly) waive jury polling? It seems to happen in more than half of the cases that cross my desk. If the defendant is convicted, what do you have to lose? Even if it's a one-in-ten-thousand shot, I don't see how it can hurt and it really doesn't take that long. Any ideas?

Full post as published by Kansas Defenders on December 31, 2008 (boomark / email).