RULE 31. VERDICT
TheA verdict must be unanimous. ItThe verdict must be returned by the jury to the judge in open court.
(b) Several Defendants. If there are two or more defendants, the jury at any time during its deliberations may return a verdict or verdicts with respect to a defendant or defendants as to whom it has agreed.
; ifIf the jury cannot agree with respect to all of the defendants, the defendant or defendants as to whom it does not agree may be tried again.
(c) Conviction of Lesser Offense.
TheA defendant may be found guilty of an offense necessarily included in the offense charged. orIf attempt is an offense, a defendant may be found guilty of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offensein the offense charged.
(d) Poll of Jury.
WheneverAfter a verdict is returned andbut before the jury is discharged, the court shall, on a party's request, or may on its own motion, poll the jurors individually. it is recorded the jury must be polled at the request of any party or upon the court's own motion.If uponthe poll reveals a lack of unanimity there is not unanimous concurrence, the court may direct the jury may be directedto deliberate retire forfurther deliberationsor may be dischargeddeclare a mistrial and discharge the jury.
(e) Special Verdict.
Whenever theWhen a defendant interposes the defense of lack of criminal responsibility by mental disease or defect at the time of the alleged crime and evidence thereof is given at theof the defense is presented at trial, the jury, if it finds the defendant himnot guilty on that groundbased on the defense, shall declare that fact in its verdict.
Whenever theWhen a defendant interposes the defense that he hasof having been formerly convicted or acquitted offor the same offense or an offense necessarily included therein, or of having been once in jeopardy, and evidence thereof is given at thetrial, the jury, if it so finds, shall declare that fact in its verdict.
Whenever theWhen a defendant is charged with treason or conspiracy to commit treason and more than one overt act is charged, the jury, before returning a verdict of guilty, shall return a special verdict with respect to each overt act charged.
Whenever theWhen a defendant interposes any other defense which cannot be reflected in a general verdict, and evidence thereofof the defense is given at thetrial, the jury, if it so finds, shall declare that fact in its verdict.
Rule 31 was amended, effective March 1, 1986; March 1, 2000.
Rule 31 is an adaptation of Rule 31, FRCrimP, except for subdivision (e)
which was added to provide for special verdicts and differs from its federal counterpart.
Subdivision (a) retains the requirement of unanimity notwithstanding that the United States Supreme Court has allowed less than unanimous verdicts. [See Johnson v. Louisiana, 255 La. 314, 230 So.2d 825, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972), and Apodaca v. Oregon, 1 Or.App. 483, 462 P.2d 691, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972).]
Under subdivision (b), whenever there is more than one defendant or more than one count, the jury may return a separate verdict with regard to each defendant and in regard to each count. If this procedure is followed and error is found requiring reversal in regard to one defendant or to one count, this would allow a retrial of that issue alone and would not require a retrial as to all issues or of the entire case. If the jury is unable to arrive at a verdict in regard to one of the defendants or to one of the counts, it may return a verdict on those counts or defendants on which it is agreed. It may then retire again and resume its deliberations about the remaining defendants or the remaining charges. Further, if the jury does not reach agreement on all charges, those matters on which it does not agree may be tried again.
[United States v. Skidmore, 123 F.2d 604 (7th Cir. 1941), rehearing denied October 1941.]
Under subdivision (c), a jury in an appropriate case may convict the defendant of a lesser offense necessarily included in the offense charged. [Berra v. United States, 351 U.S. 131, 76 S.Ct. 685, 100 L.Ed. 1013 (1956).] Subdivision (c) also provides that the jury may find the defendant guilty of an attempt to commit the offense charged or an offense necessarily included therein, if the attempt is an offense.
Subdivision (d) was amended, effective March 1, 2000, to follow the 1998 federal amendment and require individual polling of jurors.
Subdivision (d) permits polling of the jury to ascertain with certainty that each of the jurors approves of the verdict as returned, and that no one has been coerced or induced to a verdict to which he has not fully assented.
Subdivision (e) differs from its federal counterpart adopted in 1972. The federal rule provides for a special verdict for only the extent of an interest or property subject to criminal forfeiture.
Subdivision (e) provides for special verdicts.
was added to this Rule for its value to the court as a tool in determining factual issues.A determination of factual issues in the specific instances provided in this subdivision is deemed to be within the province of the jury. Because it is the court that determines the issue of law, the scope of the jury is not exceeded. [See Section 337 and commentary thereto, Official Draft, Code of Criminal Procedure by the American Law Institute (1930).]
Subdivision (e)(1) was amended, effective March 1, 1986, to substitute "lack of criminal responsibility by mental disease or defect at the time of the alleged crime" for the term "insanity" in order to be consistent with Rule 12.2(a) and N.D.C.C. § 12.1-04.1-01.
SOURCES: Joint Procedure Committee Minutes of May 6-7, 1999, pages 16-17; November 30, 1984, page 23; April 24-26, 1973, pages 12-13; October 17-20, 1972, pages 41-44; December 10-11, 1970, pages 13-15; February 20-21, 1969, pages 3-4; December 11-12, 1968, pages 18-19; FRCrimP, Rule 31
; Wright, Federal Practice and Procedure: Criminal, § 511-517 (1969); 8 Moore's Federal Practice, Chapter 31 (Cipes, 2d Ed. 1969); Barron, Federal Practice and Procedure: Criminal, § 2241-2244 (1951); Section 337 and commentary thereto, Official Draft, Code of Criminal Procedure, by the American Law Institute (1930).
SUPERSEDED: 29-22-13, 29-22-15, 29-22-17, 29-22-18, 29-22-19, 29-22-23, 29-22-25, 33-12-24, 33-12-25, N.D.C.C.
CONSIDERED: 12-06-06, 29-22-01, 29-22-02, 29-22-03, 29-22-04, 29-22-05, 29-22-06, 29-22-07, 29-22-08, 29-22-09, 29-22-10, 29-22-12, 29-22-14, 29-22-16, 29-22-20, 29-22-21, 29-22-22, 29-22-24, 29-22-26, 29-22-27, 29-22-28, 29-22-29, 29-22-30, 29-22-31, 29-22-32, 29-22-33, 29-22-34, 29-22-35, 29-22-36, 29-22-37, N.D.C.C.