VI. TRIAL

217

Rule 31: Verdict.

(a) Unanimity. The jury’s verdict shall be unanimous.

(b) Return in Open Court. The jury shall return the verdict to the judge in open court.

(c) Multiple Defendants. If there are multiple defendants, the jury may return a verdict at any time during its deliberations as to any defendant about whom it has agreed. If the jury cannot agree on all defendants, the state may try again any defendant on whom the jury was not in agreement.

(d) Conviction of Lesser Offense.

(1) Definition of Lesser Included Offense. The defendant may be found guilty of:

(A) an offense necessarily included in the offense charged; or

(B) an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense.

(2) Procedures When No Unanimous Verdict. If the court instructs the jury on one or more lesser included offenses and the jury reports that it cannot unanimously agree on a verdict, the court shall address the foreperson and inquire whether there is disagreement as to the charged offense and each lesser offense on which the jury was instructed. The following procedures apply:

(A) The court shall begin with the charged offense and, in descending order, inquire as to each lesser offense until the court determines at what level of the offense the jury has disagreed;

(B) The court shall then inquire if the jury has unanimously voted not guilty to the charged offense.

(i) If so, at the request of either party, the court shall poll the jury as to their verdict on the charged offense.

(ii) If it is determined that the jury found the defendant not guilty of the charged offense, the court shall enter a not guilty verdict for the charged offense.

(C) The court shall then inquire if the jury unanimously voted not guilty as to the next, lesser instructed offense.

(i) If so, at the request of either party the court shall poll the jury as to their verdict on this offense.

(ii) If it is determined that the jury found the defendant not guilty of the lesser offense, the court shall enter a not guilty verdict for that offense.

(D) The court shall continue this inquiry for each lesser instructed offense in descending order until the inquiry comes to the level of the offense on which the jury disagreed.

(E) The court may then declare a mistrial as to that lesser offense, or the court may direct the jury to deliberate further as to that lesser offense as well as any remaining offenses originally instructed to the jury.

(e) Poll of Jury. After a verdict is returned but before the verdict is recorded, the court shall–on a party’s request or on the court’s own initiative–poll the jurors individually. If the poll indicates that there is not unanimous concurrence in the verdict, the court may discharge the jury or direct the jury to retire for further deliberations.

Advisory Commission Comment.

This rule is similar to the federal rule, except that it contains no provision dealing with criminal forfeiture.

In cases where the court instructs the jury on the charged offense and one or more lesser offenses, and the jury reports an inability to reach a verdict, it is not always apparent on which offense the jury disagreed. The practice in Tennessee is to give sequential jury instructions that require a jury to consider guilty of the greatest charged offense before moving on to consider the lesser offenses. In some cases, the jury may acquit the defendant of the greater offense but be unable to reach a unanimous verdict on one or more lesser offenses. If the court grants a mistrial as to all offenses because of the jury’s failure to reach agreement on a lesser offense, the double jeopardy clause is implicated if the jury actually acquitted the defendant of one or more of the greater offenses but disagreed on a lesser one.

Subdivision (d) is intended to minimize double jeopardy issues and avoid releasing a jury without determining whether it reached agreement on some degree of the charged offense.

The rule provides for a sequential inquiry by the trial court, beginning with the greatest charged offense and continuing in descending order of offenses until the court determines at what level the jury has disagreed. The court must then determine whether the jury unanimously found the defendant not guilty of any greater offense. To eliminate ambiguity, the rule also provides for jury polling on a party’s request. Rule 30(e) also permits the court to poll the jury on the court’s own initiative.

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