RULE 31. JURY VERDICT
A verdict must be unanimous. The jury must return its
verdict must be returned
by the jury to the a judge in open court. The verdict must
Several defendants Partial Verdicts, Mistrial, and Retrial.
(1) Multiple Defendants. If there are
two or more
multiple defendants, the jury at any time
during its deliberations may return a verdict or verdicts with respect
at any time during its
deliberations for to a any defendant or defendants as
to about whom it has agreed.
(2) Multiple Counts. If the jury cannot agree on all counts for any defendant, the jury may return a verdict on those counts on which it has agreed.
(3) Mistrial and Retrial. If the jury cannot agree
with respect to all of the
defendant or defendants as to whom it does not agree may be tried again on a
verdict on one
or more counts, the court may declare a mistrial on those counts. The prosecution may retry
any defendant on any count on which the jury could not agree.
Conviction of Lesser Offense. A defendant may be found guilty of an
necessarily included in the offense charged. If an attempt is an offense, a defendant may
found guilty of an attempt to commit either the offense charged or an offense necessarily
included in the offense charged.
Poll of Jury Poll. After a verdict is returned but before the
jury is discharged, the court
shall must , on a party's request, or may on its own
motion, poll the jurors individually. If the
poll reveals a lack of unanimity, the court may direct the jury to deliberate further or may
declare a mistrial and discharge the jury.
(e) Special verdict.
(1) Lack of Criminal Responsibility.
When If a
defendant interposes raises the defense of
lack of criminal responsibility by mental disease or defect at the time of the alleged crime
and evidence of the defense is presented at trial, the jury, if it finds the defendant not guilty
based on the defense, shall declare must state that fact in its verdict.
(2) Double Jeopardy.
When If a defendant
interposes raises the defense of having been
formerly convicted or acquitted for of the same offense or an offense
therein in the same offense, or of having been once in jeopardy, and
evidence thereof of the
defense is given at trial, the jury, if it so finds the defendant proved the
defense, shall declare
must state that fact in its verdict.
When If 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,
must return a special verdict with respect to on each overt act
(4) Other Defenses.
When a defendant interposes If any
other defense which cannot be
reflected in a general verdict, and evidence of the defense is given at trial, the jury, if it so
finds, shall declare that fact in its verdict.
Rule 31 was amended, effective March 1, 1986; March 1, 2000; March 1, 2006.
Rule 31 is an adaptation of Fed.R.Crim.P. 31, except for subdivision (e).
Rule 31 was amended, effective March 1, 2006, in response to the December 1, 2002, revision of the Federal Rules of Criminal Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Subdivision (a) retains the requirement of unanimity notwithstanding that the United States
Supreme Court has allowed less than unanimous verdicts.
[See Johnson v. Louisiana,
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
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
as to on 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
Subdivision (b) was amended, effective March 1, 2006, to clarify that a jury may return partial verdicts, either to multiple defendants or multiple counts, or both.
Under subdivision (c), a jury in an appropriate case may convict the defendant of a
offense necessarily included in the offense charged.
[Berra v. United States, 351 U.S.
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) provides for special verdicts. 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
Subdivision Paragraph (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 N.D.R.Crim.P. 12.2 ( a Notice
Based on Mental Condition; Mental Examination) and N.D.C.C. § 12.1-04.1-01
(Standard for Lack of Criminal Responsibility).
SOURCES: Joint Procedure Committee Minutes of January 27-28, 2005, pages 25-28; 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; Fed.R.Crim.P. 31.
SUPERSEDED: N.D.C.C. §§ 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.
CONSIDERED: N.D.C.C. §§ 12-06-06, 12.1-04.1-01, 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.
CROSS REFERENCES: N.D.R.Crim.P. 12.2 (Notice of Defense Based on Mental Condition; Mental Examination).