7.35Verdict¹

A.Number

When a jury trial is requested in a civil action, “the trial shall be by a jury of 6.” MCL 600.1352. “Except in cases involving the possible commitment of a person to a mental, correctional or training institution, a verdict in any civil case . . . shall be received when 5 jurors agree.” Id. The parties may stipulate to a jury of all jurors impaneled, to a jury of less than six, or a verdict by an agreed majority. MCR 2.514(A). Where a less than a unanimous jury is permitted, the same jurors who agree on liability must also agree on damages. Klanseck v Anderson Sales & Svc, Inc, 136 Mich App 75, 84 (1984).²

For information on handling a hung jury, see Section 7.34(D).

B.Polling the Jury

When the jury returns its verdict, “[a] party may require a poll to be taken by the court asking each juror if it is his or her verdict.” MCR 2.514(B)(2). “If the number of jurors agreeing is less than required, the jury must be sent back for further deliberation[.]” MCR 2.514(B)(3).

“Once rendered, a jury’s verdict of acquittal is inviolate.” McElrath v Georgia, 601 US ___, ___ (2024). Indeed, “the jury holds an unreviewable power to return a verdict of not guilty even for impermissible reasons.” Id. at ___ (“[W]hile an acquittal might reflect a jury’s determination that the defendant is innocent of the crime charged, such a verdict might also be the result of compromise, compassion, lenity, or misunderstanding of the governing law.”) (quotation marks and citation omitted). Accordingly, “once a jury has been polled and discharged, its members may not challenge mistakes or misconduct inherent in the verdict.” Put v FKI Indus, Inc, 222 Mich App 565, 569 (1997). However, before being discharged, a jury may change the form and substance of a verdict to coincide with its intention; the jury may be allowed to reconvene where, after the jury has announced its verdict, a poll of the jurors indicates that they might be confused. Id. at 569-570. Allowing the jury to resume deliberations furthers the purpose of MCR 2.514(B)(2). Put, 222 Mich App at 570.³

After a jury has been polled and discharged, testimony and affidavits by the jury members may only be used to challenge the verdict with regard to extraneous matters, like undue influence, or to correct clerical errors in the verdict in matters of form. Hoffman v Spartan Stores, Inc, 197 Mich App 289, 293-294 (1992). Clerical errors include transcription or transmission of the jury’s verdict. Id. at 294.

C.Special Verdict

“The court may require the jury to return a special verdict in the form of a written finding on each issue of fact, rather than a general verdict.” MCR 2.515(A). The form of a special verdict must be settled on the record or in writing, “in advance of argument and in the absence of the jury[.]” Id. “The court may submit to the jury:

(1) written questions that may be answered categorically and briefly;

(2) written forms of the several special findings that might properly be made under the pleadings and evidence; or

(3) the issues by another method, and require the written findings it deems most appropriate.” MCR 2.515(A).

The court must adequately instruct the jury on the matter submitted so that the jury is able to make findings on each issue. MCR 2.515(A).

The court must enter judgment in accordance with the special verdict. MCR 2.515(B).

Where the court omits from the special verdict form an issue of fact that was raised in the pleadings or the evidence, a party must demand its submission before the jury retires, or else the party is deemed to have waived the right to a jury trial on that issue. MCR 2.515(C). “The court may make a finding with respect to an issue omitted without a demand. If the court fails to do so, it is deemed to have made a finding in accord with the judgment on the special verdict.” Id.

Unlike a general verdict, which “is either all wrong or all right, because it is an inseparable and inscrutable unit,” errors in a special verdict can be “localized so that the sound portions of the verdict may be saved and only the unsound portions [are] subject to redetermination through a new trial.” Sudul v Hamtramck, 221 Mich App 455, 458-459 (1997) (quotation marks and citation omitted).

D. Inconsistent Verdicts

“Ordinarily, a verdict may and should be set aside and a new trial granted where [the verdict] is self-contradictory, inconsistent, or incongruous, and such relief should, as a rule, be granted where more than one verdict [is] returned in the same action and they are inconsistent and irreconcilable.” Harrington v Velat, 395 Mich 359, 360 (1975) (quotation marks and citation omitted). However, every attempt must be made to harmonize a jury’s verdicts; the verdicts should be disturbed only where they are “so logically and legally inconsistent that they cannot be reconciled[.]” Lagalo v Allied Corp, 457 Mich 278, 282 (1998) (quotation marks and citation omitted). “Moreover, the Court Rules do not provide an avenue to a new trial based on an inconsistency or incongruity in the jury’s conclusions.” Zaremba Equip, Inc v Harco Nat’l Ins Co, 302 Mich App 7, 29 (2013).

A verdict is not inconsistent if there is an interpretation of the evidence that provides a logical explanation for the findings of the jury. Lagalo, 457 Mich at 282.

“An acquittal is an acquittal, even when a jury returns inconsistent verdicts, convicting on one count and acquitting on another count, where both counts turn on the very same issue of ultimate fact.” McElrath v Georgia, 601 US ___, ___ (2024) (quotation marks and citation omitted). “Once there has been an acquittal, . . . any speculation about the reasons for a jury’s verdict [is prohibited]—even when there are specific jury findings that provide a factual basis for such speculation—because it is impossible for a court to be certain about the ground for the verdict without improperly delving into the jurors’ deliberations.” Id. at ___ (quotation marks and citation omitted). In McElrath, a jury found “that petitioner . . . was ‘not guilty by reason of insanity’ with respect to a malice-murder count, but was ‘guilty but mentally ill’ regarding two other counts—felony murder and aggravated assault—all of which pertained to the same underlying homicide.” Id. at ___. “Invoking the repugnancy doctrine, Georgia courts nullified both the ‘not guilty’ and ‘guilty’ verdicts, and authorized [his] retrial.” Id. at ___. On appeal, the United States Supreme Court held that “the Fifth Amendment’s Double Jeopardy Clause prevent[ed] [Georgia] from retrying him for the crime that had resulted in the ‘not guilty by reason of insanity’ finding.” Id. at ___ (“The jury’s verdict constituted an acquittal for double jeopardy purposes, and an acquittal is an acquittal notwithstanding its apparent inconsistency with other verdicts that the jury may have rendered.”).