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(Applicable to jury trials in District Court and Superior Court)
The verdict shall be unanimous. It shall be a general verdict returned by the jury to the judge in open court. The jury shall file a verdict slip with the clerk upon the return of the verdict.
If there are two or more offenses or defendants tried together, the jury may with the consent of the judge at any time during its deliberations return or be required by the judge to return a verdict or verdicts with respect to the defendants or charges as to which a verdict has been reached; and thereafter the jury may in the discretion of the judge resume deliberation. The judge may declare a mistrial as to any charges upon which the jury cannot agree upon a verdict; provided, however, that the judge may first require the jury to return verdicts on those charges upon which the jury can agree and direct that such verdicts be received and recorded.
The trial judge may submit special questions to the jury.
When a verdict is returned and before the verdict is recorded, the jury may be polled in the discretion of the judge. If after the poll there is not a unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged.
This rule is patterned after Rule 31 of the Federal Rules of Criminal Procedure. Substantially, it reflects current Massachusetts practice as embodied in the common law and in statute. See former G.L. c. 278, § 11 (St.1964, c. 108, §§ 1-2).
This subdivision requires that the verdict be unanimous. This is consistent with Fed.R.Crim.P. 31(a).
Accord, Me.R.Crim.P. 31(a); Rules of Criminal Procedure (U.L.A.) Rule 535(b) (1974). But see ABA Standards Relating to Trial by Jury § 1.1(b) (Approved Draft, 1968), which allows for less than a unanimous verdict. The requirement that the jury return a verdict slip with the verdict is a change from existing practice. The verdict slip is a written recital of the verdict. This practice conforms to Rule 535(a) of the Uniform Rules of Criminal Procedure (U.L.A.) (1974). The use of a verdict slip will help reduce errors in the rendering and announcing of verdicts. See Commonwealth v. Brown , 367 Mass. 24, 27-29 (1975) (verdicts of not guilty returned, affirmed, and recorded and jury discharged; no error in permitting corrected verdicts to be entered since jury had remained undispersed, in custody, and had not been influenced), pet. for habeas corpus denied sub nom. Brown v. Gunter , 428 F.Supp. 889 (D.Mass.1977), aff'd, 562 F.2d 122 (1st Cir.1977).
This subdivision permits a jury in multiple-defendant or multiple-offense cases, with the consent of the court, to return a verdict at any time during their deliberations with respect to charges or defendants as to which a verdict has been reached. This rule also permits the court to require the return of such verdicts before the jury has reached a verdict as to all the defendants or charges. In either case, if the court directs, the jury is to continue its deliberations after rendering the verdicts under this subdivision. To the extent that this rule permits the jury to return such verdicts without having reached a decision on all the charges or defendants, it is consistent with Fed.R.Crim.P. 31(b)-(c). Accord Rules of Criminal Procedure (U.L.A.) Rule 535(c)-(d) (1974).
This rule also provides that the court may declare a mistrial in cases where the jury is unable to reach a verdict. However, it must first receive and record the verdicts which the jury can agree upon. See ABA Standards Relating to Trial by Jury §§ 5.4-.5 (Approved Draft, 1968); Rules of Criminal Procedure (U.L.A.), supra, Rule 541.
Subdivision (b) does not prohibit retrial of those defendants as to whom the jury is unable to reach a verdict. This is consistent with Fed.R.Crim.P. 31(b), which provides that, in cases of multiple defendants, disagreement as to one or more defendants has no effect upon the verdict as to any other defendant, and such defendant may be retried without violating the protection of the double jeopardy clause. 8A J. MOORE, FEDERAL PRACTICE para. 31.02 (1978 rev.). It has long been settled that jeopardy does not attach where the jury is discharged after inability to reach a verdict. United States v. Perez , 22 U.S. 579, 9 Wheat. 579 (1824); Thames v. Commonwealth , 365 Mass. 477 (1974). It is within the discretion of the court to declare a mistrial where there is a “manifest necessity.” United States v. Perez, supra at 580. Unless such “manifest necessity” exists, a second prosecution will be barred by the double jeopardy clause. Since Perez, it has been held that where the jury has been unable to agree upon a verdict, the declaration of a mistrial is a “classic example” of manifest necessity. United States v. Castellanos , 478 F.2d 749, 751 (2d Cir.1973). Thus the defendant may be retried without twice being placed in jeopardy.
One change in Massachusetts law is the elimination of the special verdict. General Laws c. 278, § 11 had authorized the jury to return a special verdict, although this procedure was seldom used. This subdivision does, however, recognize the practice of submitting special questions to the jury. See Commonwealth v. Beneficial Finance Co. , 360 Mass. 188, 299-300, (1971), cert. denied, 407 U.S. 910 (1972). Special questions should, however, be used sparingly as they can “ ‘catechize’ a reluctant juror away from an acquittal and towards a seemingly more ‘logical’ conviction.” Heald v. Mullaney , 505 F.2d 1241, 1245 (1st Cir.1974), cert. denied, 420 U.S. 955 (1975).
This subdivision is based upon Fed.R.Crim.P. 31(d), but differs in that the polling of the jury is to be discretionary with the court rather than a right of the defendant so as to conform to existing Massachusetts practice. That this discretion is well-settled in the Commonwealth was recently reaffirmed in Commonwealth v. Stewart , 375 Mass. 380 (1978). See also Commonwealth v. Valliere , 366 Mass. 479, 497 (1974); Commonwealth v. Caine , 366 Mass. 366, 375 (1974); Commonwealth v. Fleming , 360 Mass. 404, 408 (1971) (jurors polled); Commonwealth v. Beneficial Finance Co., supra, at 300-301. Under Rule 31 of the Federal Rules of Criminal Procedure and under the ABA Standards Relating to Trial by Jury § 5.5 (Approved Draft, 1968), a jury is to be polled only at the request of a party or upon the court's own motion. In any case, where a jury has been polled and there is not a unanimous concurrence, compare Commonwealth v. Fleming, supra, or it appears that the verdict was a compromise or other serious doubts are raised as to its integrity, see Commonwealth v. Stewart, supra, the court may declare a mistrial, or alternatively, order further deliberations. Accord, Rules of Criminal Procedure (U.L.A.) Rule 535(e) (1974).