Monday, December 21, 2009

New Trial For Failure To Hearken

The Maryland Court of Appeals agreed with its Court of Special Appeals that a guilty verdict in a first degree murder case was a nullity because the jury was neither polled or hearkened:

As a matter of protocol, hearkening has been a standard practice in Maryland for more than 100 years, when a jury renders a verdict in a criminal case, Essentially, hearkening requires the trial court to inquire in open court, before the jurors are discharged, whether the jury agrees with the verdict just announced by the foreperson.

The talismanic language:

Hearken to your verdict as the Court hath recorded it. You say that [name of defendant] is guilty (or not guilty) of the matter wherefore he or she stands indicted, and so say you all.

The court majority held that polling the jury may be waived, but not both polling and hearkening. A dissent would hold that such circumstances would render the verdict a nullity only if the jury were discharged before the defendant was afforded the opportunity to request a jury poll or had objected to the failure to hearken. (Mike Frisch)

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