CACI 5017 Polling the Jury

California Civil Jury Instructions CACI

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.]

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.

The third sentence in the second paragraph referring to the agreement of nine or more jurors must be revised in a case under the Lanterman-Petris-Short Act. (See CACI No. 4012, Concluding Instruction (for LPS Act).

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 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
4 California 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 § 14.28 (Cal CJER 2019)