In a Massachusetts Criminal Trial, of any type, whether murder or an OUI, the verdict must be unanimous, meaning that all six jurors have to agree whether the verdict is guilty or not guilty.  If jurors cannot reach a unanimous verdict, it is called a hung jury and the Commonwealth is permitted to retry the case.  The first Bill Cosby trial ended in a hung jury. In every criminal trial, a jury should be instructed on this principal of law.  The jury misunderstood this; possibly the instruction should be simplified telling the jury directly that a conviction cannot rest on a vote of five to one or four to two.

In Commonwealth v. Dibenedetto, a trial from the Worcester District Court the jury was under the mistaken belief that only a majority was required to return a verdict.  When the judge learned of this after thanking the jurors following the verdict, he instructed them that the verdict must be unanimous.  After his reinstruction following the first verdict, the jury then again returned a guilty verdict.  

The Appeals Court held that after the verdict is recorded the verdict is final. After the verdict is rendered, the judge is precluded from inquiring into the propriety of the jurors deliberation or decision making. The Appeals Court stated that the prohibition against impeachment of a verdict is not absolute.  Juror testimony, the Court stated, can be used to show the following:  unauthorized site visits, improper communication between parties, or consideration of facts not in evidence, as well as racial bias. 

The Appeals Court acknowledged that an argument can be made that an exception to the general rule should be allowed when the verdict is not unanimous.  The Court stated that to allow this exception would create a slippery slop where verdicts would be set aside if jurors did not understand the jury instructions or proof beyond a reasonable doubt.  

The Court should allow the potential for a case to be reopened if there is objective evidence that the jurors misunderstood the law as the court has an obligation to ensure justice is done and that the defendant received a fair trial.  The argument that this is likely to become a common problem is not convincing as it would be unusual for a judge to learn of any misunderstanding from a jury.  Many judges speak very little to jurors after the case, fearing they will learn something that will call into question the integrity of the verdict. I do not believe that is a good policy for judges to be concerned about learning of an injustice and having to do the trial again, but many judges will avoid contact with jurors fearing that they will learn something that may compromise the verdict.

In this case, the juror brought the information to the trial judge and the trial judge did not engage in any inquiry to learn the internal deliberation process.  Once an error is discovered, the judge should have the ability to remedy the juror mistake.  The judge should have vacated the verdict and declared a hung jury once he learned that the jurors were not unanimous in their verdict.  I would expect the SJC to reverse the decision of the Appeals Court as this was not a case of inquiry into the deliberation process, but an unusual case where the misunderstanding was clearly brought to the attention of the trial judge.  

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