Before the jury begins deliberating, the judge should instruct the jury pursuant to M Crim JI 3.11. See People v Galloway, 307 Mich App 151, 158 (2014), rev’d in part on other grounds 498 Mich 902 (2015).1 “When it appears that a deliberating jury has reached an impasse, or is otherwise in need of assistance, the court may invite the jurors to list the issues that divide or confuse them in the event that the judge can be of assistance in clarifying or amplifying the final instructions.” MCR 2.513(N)(4). Upon indication that the jury is deadlocked, the judge should instruct the jury pursuant to M Crim JI 3.12. Galloway, 307 Mich App at 159. “The goal of such an instruction is to encourage further deliberations without coercing a verdict.” People v Walker, 504 Mich 267, 277 (2019). “The relevant question is whether the instruction given could cause a juror to abandon his or her conscientious dissent and defer to the majority solely for the sake of reaching agreement. The inquiry must consider the factual context in which the instruction was given and is conducted on a case-by-case basis.” Id. at 278 (quotation marks, alteration marks, and citations omitted). Although “not every deviation from M Crim JI 3.12 will be erroneous,” Walker, 504 Mich at 285, “the safest course to avoid juror coercion is to read the standard jury instructions.” Galloway, 307 Mich App at 166.
Generally, comments made to the jury by the trial court before delivering M Crim JI 3.12 that do not represent a substantial departure from the instruction will not require reversal of a defendant’s conviction. People v Rouse (Rouse II), 477 Mich 1063, 1063 (2007) (adopting the rationale of the dissenting opinion in People v Rouse (Rouse I), 272 Mich App 665, 675-677 (2006) (opinion by Jansen, J.). In Rouse I, the judge’s extraneous comments included reference to the fact that if the jury was unable to reach a verdict, the defendant would have to be retried and all involved would be required to “‘go[] through this entire process again with another jury.’” People v Rouse (Rouse I), 272 Mich App 665, 667 (2006) (opinion of the Court). The Court of Appeals majority concluded that the trial court’s comments constituted a coercive supplemental instruction. Id. at 672-673. The Michigan Supreme Court reversed “for the reasons stated in the Court of Appeals dissenting opinion[.]” Rouse II, 477 Mich at 1063. In concluding that the trial court’s comments did not represent a substantial departure from the standard instruction, the dissenting judge stated:
“Before reading [M Crim JI 3.12] to the jury, the trial court advised the jury that if it did not reach a verdict, a new trial would be required. However, immediately thereafter, the trial court emphasized that no juror should change his or her honest beliefs simply for the sake of reaching a verdict. The trial court then read [M Crim JI 3.12], which also cautions that a juror should not relinquish his or her honest beliefs simply to reach a verdict. Contrary to defendant’s assertion, the jury did not return its verdict shortly after hearing these instructions. Instead, the jury deliberated for approximately five more hours. During this time span, the jury responded to an inquiry from the trial court by indicating that it wished to continue deliberating.
The trial court’s remarks did not appeal to the jury’s sense of civic duty and did not suggest a failure of purpose. Nor did the trial court’s remarks coerce the jurors by informing them that they were required to reach a verdict. Quite simply, the trial court’s statement that another trial would be necessary if the jury could not reach a verdict did not suggest that the jury should take a different approach to its deliberations. Accordingly, the remarks did not constitute a substantial departure from the instruction mandated by [People v Sullivan, 392 Mich 324, 341-342 (1974)].” Rouse I, 272 Mich App at 676-677 (citation omitted).
However, reversal was required in Walker, where after the jury indicated it was deadlocked slightly more than an hour after it began deliberating, the trial court repeatedly informed the jury “that’s not the way this works,” and suggested that the jury should send a note “if there’s someone among you who’s failing to follow the instructions or there’s someone who’s refusing to participate in the process[.]” Walker, 504 Mich at 274. The jurors were then released for lunch, after which, a guilty verdict was returned approximately 90 minutes later. Id. at 274-275, 283 (the “quick turnaround in arriving at a guilty verdict after the trial court’s supplemental instruction had been given suggests coercion”). “Furthermore, earlier that day, the trial court had made clear to the jury that dissent would not be tolerated and that public humiliation would be the consequence for anyone who stepped out of line.” Id. at 283 (a late arriving juror was placed in a spot reserved for in-custody defendants during the completion of the prosecutor’s case after the trial court had advised the other jurors that “bad things might happen” upon the late juror’s arrival). “[T]aken together, the omission of constructive guidance to the jury on how to deliberate, the omission of an honest-conviction reminder, the addition of coercive language suggesting that jurors single out other jurors for refusing to deliberate when there was no indication that a juror had refused to deliberate, and the trial court’s conduct throughout the proceedings telegraphed that failing to reach a verdict would not be tolerated; thus, the instruction was unduly coercive.” Id. at 284-285. “[T]he instruction . . . impermissibly coerc[ed] jurors to surrender their honestly held beliefs for the sake of reaching a verdict,” constituting reversible error. Id. at 272, 285 (noting that “not every deviation from M Crim JI 3.12 will be erroneous”).
If it appears the jury is unable to reach a verdict after having been given M Crim JI 3.12, the court should have the jury return and then question the foreperson on the record to determine whether it appears that it is impossible for the jury to reach a verdict; the trial court should not ask how the jury’s voting stands. People v Hickey, 103 Mich App 350, 353 (1981); see also People v Wilson, 390 Mich 689, 692 (1973).
Committee Tip:
Possible questions include:
•Is the jury deadlocked?
•How long has it been deadlocked?
•Has there been any change in the voting one way or the other?
•Do the jurors appear to have fundamental differences that cannot be resolved?
•Also, ask counsel if they wish to inquire of the foreperson.
B.Discharge of Hung Jury and Mistrial2
The court may declare a mistrial and discharge the jury “after determining that the jury is deadlocked or that some other manifest necessity exists[.]” MCR 6.420(D). “Before ordering a mistrial, the court must, on the record, give each defendant and the prosecutor an opportunity to comment on the propriety of the order, to state whether that party consents or objects, and to suggest alternatives.” MCR 6.417.
If the jury is discharged, the court may order a new trial before a new jury. MCR 2.514(C). “The decision to declare a mistrial after a finding of manifest necessity because of a deadlocked jury is entrusted to the ‘“sound discretion of the trial court.”’” People v Ackah-Essien, 311 Mich App 13, 31 (2015), quoting People v Lett, 466 Mich 206, 216-217 (2002), aff’d sub nom Renico v Lett, 559 US 766 (2010) (additional citation omitted).
“[A] trial court, before declaring a mistrial because of a hung jury, [is not required] to consider any particular means of breaking the impasse[ or] to consider giving the jury new options for a verdict.” Blueford v Arkansas, 566 US 599, 609 (2012), citing Renico, 559 US at 773-774. Blueford was decided before MCR 6.417 was adopted; it is unclear whether the court rule provides heightened protections for the defendant in this regard.
Committee Tip:
If the trial court decides to declare a mistrial, explain to the jury on the record that the declaration of a mistrial is discretionary with the court, and that the court is exercising its discretion in light of the information received regarding the state of the jury deliberations.
C.Refusal of Juror to Deliberate
“A refusal to deliberate consists of a juror’s unwillingness to engage in the deliberative process; that is, he or she will not participate in discussions with fellow jurors by listening to their views and by expressing his or her own views.” People v Caddell, 332 Mich App 27, 48 (2020) (quotation marks and citation omitted). Examples of circumstances that do not constitute a refusal to deliberate and are not grounds for discharge include a juror who does not deliberate well; relies on faulty logic or analysis; or disagrees with the majority regarding what the evidence shows, how the law should be applied to the facts, or how deliberations should be conducted. Id. “A juror who has participated in deliberations for a reasonable period of time may not be discharged for refusing to deliberate, simply because the juror expresses the belief that further discussion will not alter his or her views.” Id. (quotation marks and citation omitted).
“[W]hen a refusal to deliberate is first presented to the court, generally a court should first reinstruct the jury on any necessary issue, such as the jurors’ duties or what it means to be deadlocked.” Caddell, 332 Mich App at 46 n 8. If an assertion that a juror refuses to deliberate is not resolved following additional instruction, the trial court should conduct a “limited investigation” focusing “on the conduct of the jurors and the process of deliberations, rather than the content of discussions.” Id. at 47-48 (quotation marks and citation omitted). The inquiry “should reflect an attempt to gain a balanced picture of the situation; it may be necessary to question the complaining juror or jurors, the accused juror, and all or some of the other members of the jury.” Id. at 48 (quotation marks and citation omitted). “Finally, after conducting this limited investigation, the court must determine whether the juror is actually engaging in misconduct by refusing to deliberate.” Id.
“[W]hen . . . a juror specifically indicates that he or she is engaging in some form of exchange with fellow jurors, and there is other evidence to support that possibility, a trial court should deem that sufficient to keep the juror on the panel so as to avoid a reasonable possibility that the juror is being removed for his or her views on the merits of the case presented by the government.” Caddell, 332 Mich App at 55. “By erring on the side that a juror is properly following the trial court’s instructions on how to deliberate, [courts] can best preserve the state constitutional right to a unanimous jury and avoid any unnecessary intrusion into private jury deliberations.” Id. However, it would be proper for a court to remove a juror if the juror “admitted to (1) making her mind up before deliberations and (2) refusing to participate in discussions from the start of deliberations[.]” Id. at 56.
In Caddell, 332 Mich App at 52-54, 56, the actions of the removed juror “did not rise to the level of refusing to deliberate,” and defendant “was deprived of his state constitutional right to a unanimous verdict, a plain error affecting his substantial rights” that required a new trial where “the record evidence establishe[d] a reasonable probability that what led to the multiple notes from the jury, and what put the issue of [the juror’s] removal before the judge, was her view on the merits of the case and her status as the holdout juror” (“the trial court crossed the threshold into the deliberative process by discharging a reluctant juror who repeatedly said that she was minimally cooperating,” that “she had not entered deliberations with her mind made up, and that she was focusing on the reasonable doubt standard”; such statements indicated the juror “was deliberating, . . . understood her obligations, and . . . was attempting to fulfill them”).
“If two or more defendants are jointly on trial, the jury at any time during its deliberations may return a verdict with respect to any defendant as to whom it has agreed.” MCR 6.420(B). However, “[i]f the jury cannot reach a verdict with respect to any other defendant, the court may declare a mistrial as to that defendant. Id.
E.Multiple Charges—Verdict on One or More Counts But Not All
Where a defendant is charged with multiple counts and the jury reaches a unanimous verdict on any of the counts, the court may accept the jury’s verdict with regard to that count or those counts, even if the jury is unable to reach a unanimous verdict on all counts charged against the defendant. Specifically, MCR 6.420(C) states:
“If a defendant is charged with two or more counts, and the court determines that the jury is deadlocked so that a mistrial must be declared, the court may inquire of the jury whether it has reached a unanimous verdict on any of the counts charged, and, if so, may accept the jury's verdict on that count or counts.”
Where a jury, before returning to deliberations, verbally reported that it had voted unanimously against guilt on two charges, was deadlocked on one lesser charge, and had not yet considered a fourth lesser charge, the jury’s announcement did not constitute an acquittal of the greater charges, and retrial on all four charges was not barred after the trial court eventually declared a mistrial because the jury remained hopelessly deadlocked. Blueford, 566 US at 601, 610. Although the jury was instructed to consider the offenses in order, from greater to lesser, and to proceed to each lesser offense only after agreeing that the defendant was not guilty of the greater offenses, “the foreperson’s announcement of the jury‘s unanimous votes on capital and first-degree murder [did not] represent[] . . . a resolution of some or all of the elements of those offenses in [the defendant’s] favor.” Id. at 606. “The foreperson’s report was not a final resolution of anything[,] . . . [and t]he jurors in fact went back to the jury room to deliberate further, even after the foreperson had delivered her report[;]” because it was possible for the “jury to revisit the offenses of capital and first-degree murder, notwithstanding its earlier votes[,] . . . the foreperson’s report prior to the end of deliberations lacked the finality necessary to amount to an acquittal on those offenses[.]” Id. at 606, 608.
A trial court’s declaration of a mistrial on the basis that the jury is unable to reach a unanimous verdict is reviewed for an abuse of discretion. Lett, 466 Mich at 208.