Following the closing arguments, the jury takes the baton. The jury must decide if the defendant is guilty or not guilty; sentencing will come later. Having just heard the district attorney’s rebuttal closing, the last thing the jury will be told comes directly from the bench.
Jury Instructions Before the jury begins deliberations, the judge gives them specific instructions about what they are to decide. Kansas uses “pattern instructions” for criminal cases. These instructions have been determined to accurately describe the elements of crimes, the burden of proof, and other issues that a jury needs to be instructed on. As the Kansas Supreme Court noted in State v. Gallegos, these instructions should generally be used unless the case presents special circumstances. In those cases, the trial court is permitted to vary the instructions so long as they continue to accurately state the law.
For example, look at the pattern instruction for possession of a controlled substance, 57.040. The information is brackets would be added depending on the facts of the particular case:
The defendant is charged with unlawfully possessing [name of particular drug defendant is accused of possessing]. The defendant pleads not guilty. To establish this charge, each of the following things must be proved: (1) That the defendant possessed [particular drug involved]. (2) This act occurred on or about the [date] day of [month], [year], in [name of county], Kansas.
The court would also have to define key legal terms for the jury, as these terms often have different meanings for their normal use. For the above instruction, “possessed” would need to be defined. This may seem surprising based on the common usage of the word, but as used in the context of this particular crime, the term’s normal meaning is both narrowed in parts and broadened in other parts. The jury would be instructed:
“Possession” means having joint or exclusive control over an item with knowledge of and the intent to have such control or knowingly keeping some item in a place where the person has some measure of access and right of control.
Thus, it is not enough to have the substance but not know it, even though in everyday language that might be within the meaning of the word. On the other hand, the defendant doesn’t have to have the substance on them. Instead, she can simply have it hidden anywhere that she has “some measure” of access or control. Here, the legal meaning has been stretched beyond what the ordinary meaning would cover. Jury instructions are key in explaining these differences to juries, though the challenge is that they must do so in an entirely neutral way.
Deliberations Following the instructions from the judge, the jury will be taken to a private room to discuss the verdict. The court’s bailiff will stand guard over this room, preventing anyone from going in or coming out. If the jury has a question or would like to see an exhibit, it may make a written request to the judge by giving it to the bailiff. Most questions asked by the jury cannot be answered for various reasons, chiefly because the jury can only consider evidence that presented during the trial in reaching its verdict. For each request, the judge and both attorneys will consider the question and formulate a response, even if that response is simply telling the jury the court cannot help.
These deliberations may take quite some time. All jurors must reach a unanimous verdict of either guilty or not guilty. If the jury deadlocks and cannot reach a unanimous decision, this results in a “hung jury” and a mistrial. The entire trial will have to be done again, including selecting a new jury. There is a pattern jury instruction that addresses deadlocking, but it can be a tricky instruction to successfully give. Instruction 68.140 and its predecessors have caused difficulty for trial courts. A deadlock instruction cannot be coercive, because the jury must decide the case based upon the facts—not the judge’s (or jurors’) desire to conclude the case. In State v. Boyd, the instruction was given after the jury reported it was deadlocked. The Kansas Supreme Court said that this was a prejudicial error, requiring the case to be retried. The lesson of Boyd is that the instruction, if given at all, should be given before deliberations again. When it is given in response to a deadlock, it can seem too aggressive, as if the judge is telling the jury it has to reach full agreement or be imprisoned in the jury room forever.
Announcing The Verdict Once the jury has reached a unanimous decision or is incurably deadlocked, it will inform the bailiff, judge, and attorneys. The verdict will be written on a verdict form and signed by each juror. This completed verdict form will be given to the clerk of the court to read aloud. After hearing the verdict, the judge will ask the foreperson of the jury if the verdict is correct—if that is what the jury unanimously decided (or that deadlock was reached and could not be broken). Again, absent from the verdict is a sentence—that will be determined later by the judge, should the verdict be guilty. After confirming the verdict, the judge will give each attorney a very brief opportunity to examine the verdict form to ensure no mistakes were made. Section 22-3421 allows the judge to correct a defective verdict, so long as the jury approves with the changes made.
Additionally, the judge may poll the jury. This is a very limited inquiry that is aimed at ensuring the verdict is correct and unanimous. When either the district attorney or defense counsel requests, the judge must individually ask each juror to confirm that they voted for the verdict. However, as happened in State v. Cheffen, the party must request this polling promptly. Once the jury has been dismissed, it is simply too late.