M Civ JI 60.02 Deadlocked Jury

The Court has previously instructed you that it is your duty to determine the facts from evidence received in open court and to apply the law to the facts and in this way decide the case. I am now asking you to return to the jury room for further deliberations. In your deliberations you should reexamine the questions submitted with a proper regard and consideration for each other’s opinions. You should listen to each other’s arguments with open minds and make every reasonable effort to reach a verdict.

[ Because it appears you are (at an impasse / in need of assistance), I invite you to list the issues that (divide / confuse) you so that I can see if I can be of some assistance by clarifying or amplifying the final instructions. ]

Note on Use

This instruction should be used only if the jury has reported a deadlock or the Court has determined that further deliberations are warranted, after considering such factors as the length of time the jury has been out, the hour of the day, the nature and complexity of the issues, the expense of retrial and the possibility of agreement. The following procedure is suggested:

If a message is received that the jury is deadlocked, or if the Court proposes to ascertain whether the jury is deadlocked, all counsel should be notified and given a reasonable opportunity to be present. At that time, the Court should state on the record the facts concerning any communication from the jury, or, if there has been no communication, the length of time the jury has been deliberating. Counsel should be informed that the Court proposes to give the instruction and give them an opportunity to object.

The jury should then be returned to the box and cautioned not to reveal the numerical division in the voting. The Court may then make inquiry of the foreperson regarding the jury’s ability to reach a verdict and, if further deliberations appear warranted, may give the instruction and return the jury to the jury room.

The bracketed language should be used as permitted by MCR 2.513(N)(4).

Comment

See MCR 2.513(N)(1) for authority to give additional instructions. Instructions which importune the jurors to reconcile their differences and reach a verdict have been approved in Michigan. Kelley v Emery, 75 Mich 147; 42 NW 795 (1889); Vinton v Plainfield Twp, 208 Mich 179; 175 NW 403 (1919); Pierce v Rehfuss, 35 Mich 53 (1876); Richardson v Detroit & M R Co, 182 Mich 206; 148 NW 397 (1914).

However, any instruction which tends to censure jurors for not yielding to the majority is erroneous. Stoudt v Shepard, 73 Mich 588; 41 NW 696 (1889). Any instructions which tend to be coercive, even though unintentionally so, may be reversible error. Yinger v Secord, 369 Mich 364; 119 NW2d 577 (1963). The same is true of such conduct as repeatedly sending the jury back for further deliberations late at night after already lengthy deliberations produced a deadlock. Id.

Instructions of this type have been approved by the federal courts in both civil and criminal cases. See, e.g., Allen v United States, 164 US 492 (1896); Hoagland v Chestnut Farms Dairy, Inc, 72 F2d 729 (CA DC, 1934).

The question of the propriety of inquiring as to the numerical division of the jury in civil cases has not been directly passed upon in Michigan. In Yinger such an inquiry by the trial judge was noted in the opinion, but not discussed. However, both federal and Michigan criminal cases have held that inquiry into the numerical division of the jury is coercive. Brasfield v United States, 272 US 448; 47 S Ct 135; 71 L Ed 345 (1926); People v Wilson, 390 Mich 689; 213 NW2d 193 (1973).

See generally Comment: On Instructing Deadlocked Juries, 78 Yale LJ 100 (1968).

The 2011 amendment reflects the amendment to MCR 2.513(N) ordered by the Michigan Supreme Court on June 29, 2011, which became effective September 1, 2011. This amendment permits the court in certain situations to invite the jurors to list the issues that divide or confuse them in the event the court can be of assistance in clarifying or amplifying the final instructions.

History

M Civ JI 60.02 was SJI 1.06. Amended October 2011.