ORCP 59 – INSTRUCTIONS TO JURY AND DELIBERATION

INSTRUCTIONS TO JURY AND DELIBERATION

RULE 59

A Proposed instructions. Unless otherwise requested by the trial judge on timely notice to counsel, proposed instructions shall be submitted at the commencement of the trial. Proposed instructions upon questions of law developed by the evidence, which could not be reasonably anticipated, may be submitted at any time before the court has instructed the jury. The number of copies of proposed instructions and their form shall be governed by local court rule.

B Charging the jury. In charging the jury, the court shall state to the jury all matters of law necessary for its information in giving its verdict. Whenever the knowledge of the court is by statute made evidence of a fact, the court shall declare such knowledge to the jury, which is bound to accept it as conclusive. The court shall reduce, or require a party to reduce, the instructions to writing. The jury shall take the court’s written instructions with it while deliberating upon the verdict. The clerk shall file a copy of the written instructions given to the jury in the court file of the case.

C Deliberation.

C(1) Exhibits. Upon retiring for deliberation the jury may take with them all exhibits received in evidence, except depositions.

C(2) Written statement of issues. Pleadings shall not go to the jury room. The court may, in its discretion, submit to the jury an impartial written statement summarizing the issues to be decided by the jury.

C(3) Copies of documents. Copies may be substituted for any parts of public records or private documents as ought not, in the opinion of the court, to be taken from the person having them in possession.

C(4) Notes. Jurors may take notes of the testimony or other proceeding on the trial and may take such notes into the jury room.

C(5) Custody of and communications with jury. After hearing the charge and submission of the cause to them, the jury shall retire for deliberation. When they retire, they must be kept together in some convenient place, under the charge of an officer, until they agree upon their verdict or are allowed by the court to separate or are discharged by the court. Unless by order of the court, the officer must not suffer any communication to be made to them, or make any personally, except to ask them if they are agreed upon a verdict, and the officer must not, before their verdict is rendered, communicate to any person the state of their deliberations, or the verdict agreed upon. Before any officer takes charge of a jury, this subsection shall be read to the officer who shall be then sworn to follow its provisions to the utmost of such officer’s ability.

C(6) Separation during deliberation. The court in its discretion may allow the jury to separate during its deliberation when the court is of the opinion that the deliberation process will not be adversely affected. In such cases the court will give the jury appropriate cautionary instruction.

C(7) Juror’s use of private knowledge or information. A juror shall not communicate any private knowledge or information that the juror may have of the matter in controversy to other jurors nor shall the juror be governed by the same in giving his or her verdict.

D Further instructions. After retirement for deliberation, if the jury requests information on any point of law, the judge may require the officer having them in charge to conduct them into court. Upon the jury being brought into court, the information requested, if given, shall be given either orally or in writing in the presence of, or after notice to, the parties or their counsel.

E Comments on evidence. The judge shall not instruct with respect to matters of fact, nor comment thereon.

F Discharge of jury without verdict.

F(1) When jury may be discharged. The jury shall not be discharged after the cause is submitted to them until they have agreed upon a verdict and given it in open court unless:

F(1)(a) At the expiration of such period as the court deems proper, it satisfactorily appears that there is no probability of an agreement; or

F(1)(b) An accident or calamity requires their discharge; or

F(1)(c) A juror becomes ill as provided in Rule 58 D.

F(2) New trial when jury discharged. Where the jury is discharged without giving a verdict, either during the progress of the trial or after the cause is submitted to them, the action may be again tried immediately, or at a future time, as the court directs.

G Return of jury verdict.

G(1) Declaration of verdict. When the jurors have agreed upon their verdict, they shall be conducted into court by the officer having them in charge. The court shall inquire whether they have agreed upon their verdict. If the foreperson answers in the affirmative, it shall be read.

G(2) Number of jurors concurring. In civil cases three-fourths of the jury may render a verdict.

G(3) Polling the jury. When the verdict is given, and before it is filed, the jury may be polled on the request of a party, for which purpose each juror shall be asked whether the verdict is the juror’s verdict. If fewer jurors answer in the affirmative than the number required to render a verdict, the jury shall be sent out for further deliberations.

G(4) Informal or insufficient verdict. If the verdict is informal or insufficient, it may be corrected by the jury under the advice of the court, or the jury may be required to deliberate further.

G(5) Completion of verdict; form and entry. When a verdict is given and is such as the court may receive, the clerk shall file the verdict. Then the jury shall be discharged from the case.

H Necessity of noting exception on error in statement of issues or instructions given or refused.

H(1) Statement of issues or instructions given or refused. A party may not obtain appellate review of an asserted error by a trial court in submitting or refusing to submit a statement of issues to a jury pursuant to subsection C(2) of this rule or in giving or refusing to give an instruction to a jury unless the party seeking review identified the asserted error to the trial court and made a notation of exception immediately after the court instructed the jury or at such other time as the trial court directed. The requirements of this rule do not preclude an appellate court from reviewing asserted errors in jury statements or instructions for legal errors that are apparent on the record.

H(2) Exceptions must be specific and on the record. The notation of exception required by subsection (1) of this section must be made orally on the record or in a writing filed with the court and must identify with particularity the points on which the exception is based. In noting an exception, a party may incorporate by reference the points that the party previously made with particularity on the record regarding the statement or instruction to which the exception applies.

[CCP 12/2/78; §B amended by 1979 c.284 §38; §C amended by 1981 c.662 §1 and 1981 c.892 §97b; §B amended by CCP 12/4/82; §C(6) amended by CCP 12/10/88 and 1/6/89; §G amended by 1997 c.249 §11; §B amended by CCP 12/14/02; §H amended by CCP 12/11/04; §B amended by CCP 12/13/08; §H amended by CCP 12/1/12]

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