M E M O
To:Joint Procedure Committee
RE:Proposed Rule 6.9, N.D.R.O.C.
In 1995, as part of its reform to activate and empower the jury, Arizona adopted new rules to assist jurors at impasse in both civil and criminal cases. See Rule 39(h), Ariz.R.Civ.P., and Rule 22.4, Ariz.R.Crim.P. The new rules were adopted to reduce the number of mistrials due to deadlock, by allowing the jury to articulate its need for information that will assist it in reaching a decision.
Under Arizona's new rules, if a jury advises the court it has reached an impasse in its deliberations, the judge can suggest the jury list in writing the divisive issues for which further assistance might help. If the jury identifies one or more issues dividing them, the court, with the help of counsel can decide whether and how the issues can be addressed. Possible courses of action might include: 1) clarifying previous instructions and/or giving additional instructions; 2) directing further argument by counsel on selected points; and 3) allowing further evidence on certain discrete issues.
Should North Dakota adopt a rule of court patterned after Arizona's new rules? The most obvious advantage of adopting a juror impasse rule would be to prevent mistrials, and the pain and expense of a second trial. Another advantage is that it will give the attorneys feedback as to what prevented a verdict. Otherwise, the attorneys may be at loss as to how to proceed differently if the case is retried.
An argument against a juror impasse rule is the procedure might become coercive and constitute an undue invasion of the jury's province. A trial court must scrupulously avoid any suggestion to the jury that would induce them to conciliate arbitrarily or coerce them into returning a verdict at the cost of any juror surrendering their honest convictions. Benzmiller v. Swanson, 117 N.W.2d 281, 289 (N.D. 1962). In addition, Rule 606, N.D.R.Evid., protects the province of the jury by providing: Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon the juror or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith.
The Explanatory Note to Rule 606 explains the rationale of the rule is to further free deliberation in the jury room by protecting from disclosure the manner in which a verdict was reached. Does the proposal contradict the intent of Rule 606, and invade the province of the jury by allowing inquiry into the mental process of the jurors?
On the other hand, the proposal seems consistent with other aspects of North Dakota law. For instance, in both civil and criminal cases, a jury may request to have a portion of trial testimony read to them, and the jury may request additional instruction on a point of law. N.D.C.C. 28-14-19 and 29-22-05. A trial court also has the authority to reopen a case for additional evidence in both civil and criminal cases. E.g., Steckler v. Steckler, 492 N.W.2d 76, 79 (N.D. 1992); State v. Jones, 557 N.W.2d 375, 377 (N.D. 1996).
Should North Dakota adopt a rule clarifying and broadening the power of a judge to deal with jury impasse?