RULE 31. VERDICT
Effective Date: 3/1/1986
Obsolete Date: 3/1/2000
(a) Return. The verdict must be unanimous. It 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; if the jury cannot agree with respect to all, the defendant or defendants as to whom it does not agree may be tried again.
(c) Conviction of Lesser Offense. The defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense.
(d) Poll of Jury. Whenever a verdict is returned and before it is recorded the jury must be polled at the request of any party or upon the court's own motion. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged.
(e) Special Verdict.
(1) Whenever the 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 the trial, the jury, if it finds him not guilty on that ground, shall declare that fact in its verdict.
(2) Whenever the defendant interposes the defense that he has been formerly convicted or acquitted of the same offense or an offense necessarily included therein, or once in jeopardy, and evidence thereof is given at the trial, the jury, if it so finds, shall declare that fact in its verdict.
(3) Whenever the 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.
(4) Whenever the defendant interposes any other defense which cannot be reflected in a general verdict, and evidence thereof is given at the 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. The explantory note was amended, effective March 1, 2022.
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.
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 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 tried again.
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 lesser offense necessarily included in the offense charged.
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 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.
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 (Notice of Defense 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.
STATUTES AFFECTED:
SUPERSEDED: N.D.C.C. §§ 29-16-01, 29-21-16, 29-22-13, 29-22-15, 29-22-17, 29-22-18, 29-22-19, 29-22-23, 29-22-25, 29-22-33, 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).