- A verdict may be “general” (guilty or not guilty of an offense) or “special,” meaning the jury is also asked to find certain particular facts beyond a reasonable doubt, such as the particular theory of murder supporting the conviction.
- A verdict must be unanimous, in writing, signed, returned in open court, accepted by the court, and made a part of the record in the case.
- Jurors may be individually polled after a verdict is returned to verify that the verdict was (and remains) unanimous.
The United States Constitution does not require the states to guarantee the right to a unanimous jury verdict in all criminal cases. See Johnson v. Louisiana, 406 U.S. 356 (1972) (under U.S. Constitution, a vote of nine of the twelve jurors was sufficient to return either a guilty or not guilty verdict, and did not deprive defendant of due process or equal protection); Apodaca v. Oregon, 406 U.S. 404 (1972) (state court conviction by a less-than-unanimous jury did not violate the right to trial by jury specified by Sixth Amendment and made applicable to states by the Fourteenth).
However, Section 24 of Article I of the Constitution of North Carolina does require a unanimous jury verdict to convict a person of a crime; therefore, North Carolina cases addressing the unanimity issue usually focus on the broader state constitutional right. Unless the defendant has waived his or her right to a jury trial, see G.S. 15A-1201(b), he or she has a right to be tried by a jury of twelve, whose verdict in the case must be unanimous. See G.S. 15A-1201(a); State v. Bradley, 181 N.C. App. 557 (2007). Additionally, statutory law codified in G.S. 15A-1237 requires that all criminal verdicts meet the following criteria:
- Be in writing;
- Signed by the foreperson;
- Returned by the jury in open court; and
- Made a part of the record in the case.
The rationale for requiring that the verdict be in writing was to cure defects and errors that could occur when the foreperson announced the verdict orally, possibly leaving out or misstating important elements. See G.S. 15A-1237, Official Commentary; see also State v. Goodman, 298 N.C. 1 (1979). Notwithstanding these requirements, verdicts have been upheld on appeal despite inadvertent errors in complying with the statute, such as the foreperson forgetting to sign the verdict, or where the returned verdict sheet was accidentally lost after trial and thus not included in the record. See State v. Collins, 50 N.C. App. 155 (1980); State v. Simmons, 165 N.C. App. 685 (2004).
Types: General and Special Verdicts
The statute does not require that the written verdict contain every element of the offense charged – the verdict is sufficient as long as it provides a proper basis for the judge to pass judgment and impose sentence. See G.S. 15A-1237; State v. Sanderson, 62 N.C. App. 520 (1983). In some cases, however, it may be necessary to have the jury reach a decision on additional matters beyond just guilt or innocence as to the principal charge -- this is the fundamental difference between a general verdict and a special verdict.
- General Verdict
A general verdict is used in typical cases where the jury is presented with testimony and evidence at trial, applies the law as the judge instructs them, and then deliberates to decide whether the defendant is “guilty” or not “guilty” of the charged offense. See State v. Ellis, 262 N.C. 446 (1964). There is no particular AOC form or model which must be used when preparing a general verdict sheet – most judges will just draft a basic document (including the case caption at the top, and a line at the bottom for the date and signature of the foreperson) which provides a place for the jury to clearly mark their decision, such as:
We, the jury, return as our unanimous verdict that the defendant is:
(1) Guilty of [name crime]. _______
(2) Not guilty. _______
Again, although there is no particular format which must be followed in all cases, best practices dictate that the verdict form should always contain “not guilty” as an option which can be clearly marked. See State v. Hicks, 86 N.C. App. 36 (1987) (verdict form only asked jury whether defendant was guilty of crime charged, with a blank space for them to write in a reply – disfavored, but no prejudice found). Similarly, while it is preferred that the verdict sheet specifically state the particular charged offense (e.g., “assault with a deadly weapon”), this is not a rigid requirement. See State v. Connard, 81 N.C. App. 327 (1986), aff’d, 319 N.C. 392 (1987). Finally, as mentioned above, there is no requirement that a general verdict separately list out each element of the charged offense. See State v. Sanderson, 62 N.C. App. 520 (1983); State v. Partin, 48 N.C. App. 274 (1980).
Submitting lesser-included offenses?
If the jury will also be asked to consider one or more lesser-included offenses, the court has to decide how best to present all of those options on the verdict form. This matter is left to the court’s discretion, but the prosecutor may want to suggest having each of the possible verdict options listed in descending order from the most serious charge down to not guilty, with clear instructions to the jury that it will choose one and only one option from that list as its verdict:
1. Guilty of Robbery with a Dangerous Weapon. _______
2. Guilty of Common Law Robbery. _______
3. Guilty of Larceny from the Person. ________
4. Guilty of Misdemeanor Larceny. _______
5. Not guilty. _______
This presentation format generally matches up with the way that the pattern jury instructions progress through each of the lesser-included offenses, and should help minimize the risk that the jury will return a duplicative or confusing verdict on the charge. See, e.g., N.C.P.I.—Crim. 217.30 (“If you do not find the defendant guilty of robbery with a dangerous weapon you must determine whether the defendant is guilty of common law robbery…” and so on).
- Special Verdict
A special verdict is a common law procedure used when there is a need for the jury to answer one or more specific questions posed by the judge, in addition to the basic question of guilt or innocence. A “true” special verdict would be one that only asks the jury to answer such a question (e.g., “did the defendant sell cocaine to Officer Jones on X date”) without actually rendering an ultimate decision on guilt or innocence – this type of verdict is not permitted. See State v. Blackwell, 361 N.C. 41 (2006); State v. Douglas, 197 N.C. App. 215 (2009).
But it is well-settled law that the jury can make specific, supplemental findings in conjunction with reaching a general verdict in the case. See Blackwell, 361 N.C. at 47. The jury must apply the same standard of proof (beyond a reasonable doubt) to any special verdict issues. See State v. Wilson, 181 N.C. App. 540 (2007). For example, special verdicts are commonly submitted to the jury in order to determine the following issues:
- Existence of aggravating factors – see Blackwell, 361 N.C. at 49; N.C.P.I.—Crim. 270.15A (Verdict Form – Aggravated Factors for Impaired Driving); N.C.P.I.—Crim. 204.35 (Aggravating Factors for Sexual Offense with a Child); see also G.S. 15A-1340.16(a1) (judge has discretion to bifurcate proceedings, have jury determine guilt/innocence first and then determine any aggravating factors afterward).
- Habitual felon status of the defendant – see State v. Sullivan, 110 N.C. App. 779 (1993).
- Whether defendant is not guilty by reason of insanity – see G.S. 15A-1237(c); State v. Linville, 300 N.C. 135 (1980); State v. Cooper, 286 N.C. 549 (1975); N.C.P.I.—Crim. 304.10 (Insanity Defense, including special verdict).
- Theory of first degree murder upon which defendant is being found guilty – see State v. Lewis, 321 N.C. 42 (1987); N.C.P.I.—Crim. 206.14 (First Degree murder, including special verdict form).
- Offense date, when it is relevant for establishing habitual status, beginning/ending date of a conspiracy, whether prior or current version of an amended statute applies, etc. – see State v. Williams, 226 N.C. App. 393 (2013).
- Jurisdiction, when it has been challenged by the defense at trial – see State v. Batdorf, 293 N.C. 486 (1977); N.C.P.I.—Crim. 311.10 (Lack of Jurisdiction – Special Verdict Form); see also the related entry on Challenges to Jurisdiction.
- Challenges to constitutionality of an ordinance or statute, based on grounds which do not appear on the face of the record – see State v. Underwood, 283 N.C. 154 (1973).
- Accessory before or after the fact to a felony – see N.C.P.I.—Crim. 202.30 (Accessory Before the Fact); N.C.P.I.—Crim. 202.40 (Accessory After the Fact).
If insanity is raised as a defense, and the jurors find the defendant not guilty on that basis, “their verdict must so state.” G.S. 15A-1237(c). In other words, the defendant’s insanity is treated as a type of special verdict, which is submitted to the jury in addition to the primary question of guilt or innocence. See, e.g., N.C.P.I. – Crim. 304.10 (instructing court to add the following at the end of the verdict form: “Special Issue: Did you find the defendant not guilty because you were satisfied that he was insane? ANSWER: ___________________"). This special finding is required so that appropriate commitment proceedings and treatment can be pursued after the trial, if warranted. See State v. Linville, 300 N.C. 135 (1980).
It is left to the trial judge’s discretion to decide the order in which the special issue of insanity should be presented to the jury – that is, whether the jury will be asked to decide guilt and innocence first, and then make a finding as to insanity only if they find the defendant not guilty, see State v. Mize, 315 N.C. 285 (1985); State v. Linville, 300 N.C. 135 (1980), or decide the insanity issue first, and only move on to decide guilt or innocence if/after they have answered the insanity question in the negative, see State v. Cooper, 286 N.C. 549 (1975); State v. Hudson, 331 N.C. 122 (1992).
Multiple Defendants or Charges
If there are two or more defendants, the jury must return a separate verdict with respect to each defendant. See G.S. 15A-1237(d). If the jury reaches a verdict as to one defendant but cannot reach a verdict as to the co-defendant, the jury must return a verdict on the first defendant and the court may declare a deadlock and mistrial as to the second defendant. See State v. Sargeant, 206 N.C. App. 1 (2011), aff’d as modified, 365 N.C. 58 (2011). Likewise, if there are multiple charges submitted to the jury and the jurors reach a verdict as to some charges but cannot reach a verdict as to others (e.g., jury is unanimous for guilty on the robbery and assault, but hopelessly deadlocked 7-5 on the kidnapping and fleeing to elude charges), the court should accept the two verdicts that the jury could reach, and only declare a deadlock/mistrial as to the other two charges individually. Id.
However, the court may not accept a partial verdict as to individual theories of the commission of a single offense, such as first degree murder, when the jury has not yet reached a unanimous decision as to the other theories. See Sargeant, 206 N.C. App. at 14 (error for court to accept jury’s verdict as to first two theories of murder – felony murder and lying in wait – before the jury reached a unanimous decision regarding the final theory – premeditation/deliberation); State v. Hatcher, 117 N.C. App. 78 (1994) ("Criminal defendants are not convicted or acquitted of theories; they are convicted or acquitted of crimes"). The same logic appears to preclude the court from accepting a verdict as to a lesser-included offense where the jury has not yet reached a unanimous verdict on the greater offense. See State v. Booker, 306 N.C. 302 (1982); Sargeant, 206 N.C. App. at 11; Hatcher, 117 N.C. App. at 83-84.
Acceptance and Entry
When the judge receives notice that the jury has reached a verdict, the judge will have the bailiff bring the jury back into the courtroom and seat them in the jury box. The foreperson will then be called upon to give their name for the record, and asked to indicate (by a simple ‘yes’ or ‘no’) whether the jury has reached a unanimous verdict. If “yes,” the foreperson will be asked to confirm that the verdict sheet has been correctly marked to indicate what their verdict is, and that the verdict sheet has also been signed and dated. Assuming the verdict sheet is in order, the foreperson will then be directed to hand the verdict to the bailiff, who gives it to the judge to review and ensure that it is correctly filled out. If the verdict sheet is prepared correctly, the verdict will be accepted and announced. The judge will ask the jury members to confirm that this is their unanimous verdict. The judge is strictly prohibited by statute from commenting on the jury’s verdict, either to praise or to criticize it, and if the judge does so then any other defendant with a matter pending during that session is entitled to a continuance. See G.S. 15A-1239; G.S. 1-180.1; see also State v. Neal, 60 N.C. App. 350 (1983) (granting continuance is the exclusive remedy for a violation).
The verdict is not complete until it is “accepted” by the trial judge, but the judge has only limited discretion to decline to accept a returned verdict on the grounds that it is "not responsive to the indictment or the verdict is incomplete, insensible or repugnant," in which case "the judge may decline to accept the verdict and direct the jury to retire and bring in a proper verdict." State v. Abraham, 338 N.C. 315 (1994) (judge correctly declined to accept verdict finding defendant guilty of both 1st and 2nd degree murder; instead, the judge re-instructed the jury on murder and directed them to continue deliberating and return a proper verdict); State v. Hampton, 294 N.C. 242 (1978); State v. Rhinehart, 267 N.C. 470 (1966).
Otherwise, as long as the submitted issues are substantially answered so that the judge may pass a judgement that is in accordance with the manifest intentions of the jury, the verdict should be accepted and recorded. See State v. Smith, 299 N.C. 533 (1980). A verdict is “sufficient” if it can be properly understood by making reference to the indictment, evidence, and jury instructions. See State v. Connard, 81 N.C. App. 327 (1986), aff’d per curiam, 319 N.C. 392 (1987).
Polling the Jury
If either party requests that the jury be “polled” to confirm the unanimity of the verdict, the trial judge (or the clerk, at the judge’s direction) must do so. See G.S. 15A-1238; State v. Black, 328 N.C. 191 (1991) (purpose of jury polling is to ensure that jurors unanimously agree with verdict when it is rendered). The judge can also decide to poll the jury sua sponte. Id. To poll the jury, the judge must ask each juror individually (not just as a group) whether: (i) he or she assented to the verdict in the jury room, and (ii) whether he or she still assents to that verdict in open court. See State v. Holadia, 149 N.C. App. 248 (2002). These two elements can be asked separately, or phrased together as one question. State v. Lackey, 204 N.C. App. 153 (2010); State v. Hunt, 198 N.C. App. 448 (2009). The polling only has to confirm the general verdict – the judge is not obligated to inquire into each possible theory underlying the offense. See State v. Carroll, 356 N.C. 526 (2002) (sufficient to ask each juror if they assented to guilty verdict in first degree murder case – not required to poll jury as to each of the supporting theories indicated on verdict sheet).
If the polling reveals a lack of unanimity on the jury, the judge must instruct them to return to the jury room and resume their deliberations. G.S. 15A-1238. If the defendant fails to request a polling of the jury before the jury is released by the court and disperses, the right has been waived. State v. Black, 328 N.C. 191 (1991); State v. Flowers, 347 N.C. 1 (1997). Furthermore, defendant does not have a right to an unlimited number of polls. See State v. Martin, 315 N.C. 667 (1986) (request to re-poll jury amounted to an attempt to impeach the jury’s verdict and was properly denied).