Polling jury requires audible response on the record; four seconds did not make it: MILES V. COM. (COA 6/6/2008)

MILES V. COM.
CRIMINAL:  Jury Polling

2006-CA-002150
PUBLISHED: REVERSING
PANEL:  ACREE PRESIDING; DIXON, TAYLOR CONCUR
GALLATIN COUNTY
DATE RENDERED: 6/6/2008

Miles’ conviction for DUI reversed because the manner in which the trial court polled the jury did not comply with Kentucky Rule of Criminal Procedure (RCr) 9.88. Polling is “done by the clerk’s or court’s asking each juror if it is his or her verdict.” It is clear from the videotape that the trial court did not “ask[] each juror” if this was his or her verdict. The court’s method of polling the six jurors took exactly four seconds. None of the jurors responded audibly. It is possible that all six jurors individually responded in a non-verbal way to the court’s four queries. While a non-verbal response to the court’s queries can be sufficient, the response must be to a question specifically posed to that responding juror and to him alone.

Digested by Scott C. Byrd
www.OlginandByrd.com

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