California Civil Jury Instructions (CACI) (2017)

5017. Polling the Jury

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5017.Polling the Jury
After your verdict is read in open court, you may be asked individually
to indicate whether the verdict expresses your personal vote. This is
referred to as “polling” the jury and is done to ensure that at least nine
jurors have agreed to each decision.
The verdict form[s] that you will receive ask[s] you to answer several
questions. You must vote separately on each question. Although nine or
more jurors must agree on each answer, it does not have to be the same
nine for each answer. Therefore, it is important for each of you to
remember how you have voted on each question so that if the jury is
polled, each of you will be able to answer accurately about how you
voted.
[Each of you will be provided a draft copy of the verdict form[s] for
your use in keeping track of your votes.]
New October 2008
Directions for Use
Use this instruction to explain the process of polling the jury, particularly if a long
special verdict form will be used to assess the liability of multiple parties and the
damages awarded to each plaintiff from each defendant.
Sources and Authority
• Verdict by Three Fourths in Civil Case. Article I, section 16 of the California
Constitution.
Polling the Jury. Code of Civil Procedure section 618.
• “The polling process is designed to reveal mistakes in the written verdict, or to
show ‘that one or more jurors acceded to a verdict in the jury room but was
unwilling to stand by it in open court.’ ” (Keener v. Jeld-Wen, Inc. (2009) 46
Cal.4th 247, 256 [92 Cal.Rptr.3d 862, 206 P.3d 403].)
• “[A] juror may change his or her vote at the time of polling.” (Keener, supra,
46 Cal.4th at p. 256.)
• “[I]t is quite apparent that when a poll discloses that more than one-quarter of
the members of the jury disagree with the verdict, the trial judge retains control
of the proceedings, and may properly order the jury to retire and again consider
the case.” (Van Cise v. Lencioni (1951) 106 Cal.App.2d 341, 348 [235 P.2d
236].)
• “[W]e begin with the requirement that at least nine of twelve jurors agree that
each element of a cause of action has been proved by a preponderance of the
evidence. The elements of a cause of action constitute the essential or ultimate
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facts in a civil case comparable to the elements of a single, discrete criminal
offense in a criminal case. Analogizing a civil ‘cause of action’ to a single,
discrete criminal offense, and applying the criminal law jury agreement
principles to civil law, we conclude that jurors need not agree from among a
number of alternative acts which act is proved, so long as the jurors agree that
each element of the cause of action is proved.” (Stoner v. Williams (1996) 46
Cal.App.4th 986, 1002 [54 Cal.Rptr.2d 243], footnote omitted.)
• “In civil cases in which there exist multiple causes of action for which multiple
or alternative acts could support elements of more than one cause of action,
possible jury confusion could result as to whether a specific cause of action is
proved. In those cases, . . . we presume that jury instructions may be
appropriate to inform the jury that it must agree on specific elements of each
specific cause of action. Yet, this still does not require that the jurors agree on
exactly how each particular element of a particular cause of action is proved.”
(Stoner, supra, 46 Cal.App.4th at p. 1002.)
• “[I]f nine identical jurors agree that a party is negligent and that such
negligence is the proximate cause of the other party’s injuries, special verdicts
apportioning damages are valid so long as they command the votes of any nine
jurors. To hold otherwise would be to prohibit jurors who dissent on the
question of a party’s liability from participation in the important remaining issue
of allocating responsibility among the parties, a result that would deny all
parties the right to a jury of 12 persons deliberating on all issues.” (Juarez v.
Superior Court (1982) 31 Cal.3d 759, 768 [183 Cal.Rptr. 852, 647 P.2d 128].)
Secondary Sources
7 Witkin, California Procedure (5th ed. 2008) Trial, §§ 339, 350
4California Trial Guide, Unit 91, Jury Deliberations and Rendition of Verdict,
§ 91.30[3][b] (Matthew Bender)
28 California Forms of Pleading and Practice, Ch. 326A, Jury Verdicts, § 326A.14
(Matthew Bender)
1 Matthew Bender Practice Guide: California Trial and Post-Trial Civil Procedure,
Ch. 18, Jury Verdicts, 18.43
California Judges Benchbook: Civil Proceedings—Trial (2d ed.) § 15.28 (Cal CJER
2010)
CACI No. 5017 CONCLUDING INSTRUCTIONS
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