Printable Format60-248. Jury trial procedure. (a) Stipulation as to number. The parties may stipulate that the jury consist of any number less than 12 or, subject to the provisions of subsection (g), that a verdict or a finding of a stated majority of the jurors be taken as the verdict or finding of the jury.
(b) View of property or place. When the court finds it is proper for the jury to view property that is the subject of litigation or the place where any material fact occurred, the court may order the jury to be taken, as a group and under the charge of an officer, to the property or place. The court must appoint a person or persons to conduct the view. While the jury is thus absent, no person other than the appointed person is permitted to speak to any juror on any subject connected with the trial. A view permitted under this subsection must not be considered by the court in determining any questions of the sufficiency or insufficiency of evidence.
(c) Case submitted, action and conduct of jury. When a case is submitted to the jury, the jury must retire for deliberation. The jurors must be kept together in a convenient place under the charge of an officer until they agree on a verdict, or are discharged by the court. The court may permit them to separate temporarily at night and at their meals. Unless the court orders otherwise, the officer having charge of the jurors must not make or allow to be made any communications to them, except the officer may ask them if they are agreed on their verdict. Before the verdict is rendered, the officer must not communicate to any person the state of the jury's deliberations or the verdict agreed on.
(d) Separation of jury; admonition of court. If the jurors are permitted to separate, either during the trial or after the case is submitted to them, the court must admonish them that:
(1) It is their duty not to converse with, or allow themselves to be addressed by, any other person on any subject of the trial;
(2) it is their duty to keep an open mind and not to express an opinion on the subject of the trial until the case is submitted to them; and
(3) the admonition applies to every separation of the jurors.
(e) Jury may request information after retiring. After the jury has retired for deliberation, it may request further information as to any part of the law or evidence pertaining to the case by communicating the request in writing through the bailiff to the court. The court, after notice to counsel for the parties, may consider and respond to the jury's request in writing or on the record.
(f) Discharge of jury, when. The court may discharge the jury:
(1) Because of sickness of a juror, or other necessity found by the court;
(2) by the parties' consent; or
(3) when it satisfactorily appears that there is no probability of the jurors reaching a verdict.
(g) Verdict; number of jurors required; form; correction. When the jury consists of 12 members, the agreement of 10 jurors is sufficient to render a verdict. In all other cases, subject to the stipulation of the parties as provided in subsection (a), the verdict must be by agreement of all the jurors. The verdict must be in writing and signed by the presiding juror. The court or clerk must read the verdict to the jurors and ask whether it is their verdict. The court must on a party's request, or may on its own, poll the jurors individually. If the poll reveals a lack of assent by the number of jurors required, the court must either direct the jury to deliberate further or order a new trial. If the required number of jurors agree and no party requires the jurors to be polled individually, the verdict is complete and the court must then discharge the jury. If the verdict is defective in form only, the verdict may be corrected by the court, with the assent of the jury, before the jury is discharged.
(h) Alternate jurors. The court may empanel one or more alternate jurors to replace jurors who, prior to the time the jury retires to consider its verdict, are found to be unable to perform their duties. Alternate jurors must be selected in the same manner, have the same qualifications, be subject to the same examination and challenges, take the same oath and have the same functions, powers and privileges as the regular jurors. Each party is entitled to one peremptory challenge to the alternate jurors. The alternate jurors must be seated near the regular jurors, with equal ability to see and hear the proceedings, and they must attend the entire trial. The alternate jurors must obey the orders of and are bound by the admonition of the court upon each adjournment, but if the regular jurors are ordered to be kept in custody during the trial, the alternate jurors also must be confined with the other jurors. Upon submission of the case to the jury, the alternate jurors may be discharged or they may be retained separately and not discharged until the jury reaches its decision. If the alternate jurors are not discharged on submission of the case and if any regular juror is discharged before the jury reaches a decision, the court may draw the name of an alternate juror to replace the discharged juror, subject to the same rules and regulations as though the juror had been selected as one of the original jurors.
History: L. 1963, ch. 303, 60-248; L. 1971, ch. 176, § 16; L. 1973, ch. 232, § 1; amended by Supreme Court order dated July 28, 1976; L. 1978, ch. 226, § 1; L. 1984, ch. 112, § 24; L. 2010, ch. 135, § 118; July 1.
Source or prior law:
(b). G.S. 1868, ch. 80, § 277; L. 1909, ch. 182, § 286; R.S. 1923, 60-2910.
(c). G.S. 1868, ch. 80, § 278; L. 1909, ch. 182, § 287; R.S. 1923, 60-2911.
(d). G.S. 1868, ch. 80, § 279; L. 1909, ch. 182, § 288; R.S. 1923, 60-2912.
(e). G.S. 1868, ch. 80, § 280; L. 1909, ch. 182, § 289; R.S. 1923, 60-2913.
(f). G.S. 1868, ch. 80, § 281; L. 1909, ch. 182, § 290; R.S. 1923, 60-2914.
(g). G.S. 1868, ch. 80, § 284; L. 1909, ch. 182, § 293; R.S. 1923, 60-2917.
Revisor's Note:
Source of 1971 amendment, see 43-201.
Cross References to Related Sections:
Instructions to jury, see 60-251.
Jury trial of right, see 60-238.
Trial by jury or by the court, see 60-239.
Examination, challenges and oath of jurors, see 60-247.
Additional jurors, see 43-167.
Grand juries, see chapter 22, article 30.
Trials in criminal proceedings, see chapter 22, article 34.
Jury service and selection of jurors, see 43-155 et seq.
Right to trial by jury, see Bill of Rights, Kansas Constitution, §§ 5, 10.
Number of jurors in felony cases, see 22-3411a.
Alternate jurors in criminal cases, see 22-3412.
View of place of crime by jury, see 22-3418.
Law Review and Bar Journal References:
Article concerning delay in the courts, George S. Reynolds, 12 W.L.J. 12, 21 (1972).
Comment concerning constitutionality of the six-man jury in Kansas, Jay W. Vander Velde, 12 W.L.J. 249 (1973).
Survey of civil procedure, Elizabeth R. Herbert, 15 W.L.J. 315, 319 (1976).
"Civil Juries: Recent Legislation Allowing Nonunanimous Verdicts," Thomas J. Koehler, 18 W.L.J. 269 (1979).
"Survey of Kansas Law: Civil Procedure," Jerry G. Elliott, 27 K.L.R. 185, 191 (1979).
"Impeaching Civil Verdicts: Juror Statements as Prejudicial Misconduct," James M. Concannon, 52 J.K.B.A. 201, 203 (1983).
CASE ANNOTATIONS
Prior law cases, see G.S. 1949, 60-2910 to 60-2914, 60-2917 and the 1961 Supp. thereto.
1. Jury discharged because of inability to agree; effect as to jeopardy; section made applicable by 62-1412. State v. Blockyou, 195 K. 405, 408, 407 P.2d 519.
2. Subsection (e) considered; failure to give information not error. Canfield v. Oberzan, 196 K. 107, 116, 410 P.2d 339.
3. Subsection (e) applied; counsel not denied opportunity to comment on jury instruction. Williams v. Benefit Trust Life Ins. Co., 200 K. 51, 59, 434 P.2d 765.
4. The fact that jury viewed premises in condemnation proceeding found not to have formed any basis for granting new trial. Kansas State Highway Commission v. Roepke, 200 K. 660, 663, 666, 667, 438 P.2d 122.
5. Subsection (e) apparently not complied with; no grounds for complaint. State v. Schroeder, 201 K. 811, 822, 443 P.2d 284.
6. When jury requests testimony on certain subject, objection cannot be sustained on ground that all of the testimony of the witness was not read. Jacks v. Cloughley, 203 K. 699, 705, 706, 457 P.2d 175.
7. Subsection (e) mentioned in holding that answering certain questions submitted by jury was not prejudicial error. Davis v. Best Cabs, Inc., 203 K. 930, 935, 457 P.2d 516.
8. Allowing jury to view premises in condemnation case, under proper instruction, within sound discretion of court. Dibble v. State Highway Commission, 204 K. 111, 112, 460 P.2d 584.
9. Additional instructions to the jury during its deliberation, outside the presence and with no notice to the parties or counsel, held reversible error. Howard v. Miller, 207 K. 246, 249, 250, 485 P.2d 199.
10. Not erroneous to discharge jury under subsection (f) and declare mistrial where third party tries to influence juror. State v. Finley, 208 K. 49, 52, 53, 490 P.2d 630.
11. Statute applied. Schwartz v. Western Power & Gas Co., Inc., 208 K. 844, 853, 494 P.2d 1113.
12. Subsection (e) cited; plaintiff's contention of misconduct of jury held not sufficient to constitute prejudice; no error in refusing new trial. Tos v. Handle, 209 K. 139, 142, 495 P.2d 896.
13. Subsection (a) discussed; district court erred in compelling appellant to submit to trial by jury of six when appellant expressly requested a jury of 12. Bourne v. Atchison, Topeka and Santa Fe Railway Company, 209 K. 511, 513, 514, 515, 516, 517, 518, 497 P.2d 110.
14. Subsection (a) cited; 12-member jury mandatory in civil cases in absence of stipulation to lesser number. Southard v. Lira, 212 K. 763, 512 P.2d 409.
15. Subsection (d) mentioned; failure to admonish jury at each separation in criminal case held not prejudicial error. State v. Ralls, 213 K. 249, 254, 515 P.2d 1205.
16. Subsection (a) applied; right to 12-man jury not substantive law; subject to regulation by legislature, courts and parties to case. Palmer v. Ford Motor Company, 498 F.2d 952, 954.
17. Only by stipulation may parties provide for less than twelve member jury. Holt v. Frito-Lay, Inc., 217 K. 56, 60, 535 P.2d 450.
18. Applied; duty of court to clarify instructions in prosecution under 21-3701. State v. Bandt, 219 K. 816, 823, 549 P.2d 936.
19. Erroneous citation of this section in prosecution for burglary and battery harmless error. State v. Bircher, 2 K.A.2d 15, 17, 573 P.2d 1128.
20. Subsection (e) referred to in holding no abuse of discretion in giving additional instruction in prosecution for possession of marijuana. State v. Bullocks, 2 K.A.2d 48, 53, 574 P.2d 243.
21. Juror granted permission to visit sick relative; one day continuance declared; no prejudice shown. State v. Nelson, 223 K. 251, 252, 573 P.2d 602.
22. Duty of trial judge in responding to request for further instructions stated; discretion. Hollinger v. Stormont Hosp. and Training School for Nurses, 2 K.A.2d 302, 309, 578 P.2d 1121.
23. Court's advice to jury on effect of answers to special question not error. Scales v. St. Louis-San Francisco Ry. Co., 2 K.A.2d 491, 499, 592 P.2d 300.
24. Judge's response to jurors' question without notifying counsel scrutinized and found harmless error. Scales v. St. Louis-San Francisco Ry. Co., 2 K.A.2d 491, 499, 582 P.2d 300.
25. Cited; errors in the form of a verdict may be corrected prior to discharge of the jury and with its assent; judgment reversed. Traylor v. Wachter, 227 K. 221, 223, 607 P.2d 1094.
26. Not error for trial court to give additional instruction as to definition of word "permanent" as used in "permanently deprived." State v. Weigel, 228 K. 194, 200, 612 P.2d 636.
27. Readback of particular testimony requested by jury does not require readback of all other testimony of witness. State v. Gilley, 5 K.A.2d 321, 323, 615 P.2d 827.
28. The trial court did not err in clarifying two instructions to the jury; judgment affirmed. State v. Patchett, 229 K. 163, 164, 621 P.2d 1011.
29. Correction of verdict must be made before jury is discharged and with its assent. Cornejo v. Probst, 6 K.A.2d 529, 541, 630 P.2d 1202 (1981).
30. Court has discretion on further instructing on request of jury. State v. Thomas, 6 K.A.2d 925, 928, 931, 932, 636 P.2d 807 (1981).
31. A jury of twelve is mandatory unless the parties stipulate to a lesser number. Schultz v. Kansas Gas & Electric Co., 7 K.A.2d 500, 501, 502, 644 P.2d 484 (1982).
32. Agreement of sufficient numbers of jurors to return a verdict. Merando v. A.T. & S.F. Rly. Co., 232 K. 404, 410, 656 P.2d 154 (1983).
33. Unanimous finding of causal negligence by requisite number of jurors sufficient; unanimity upon specific act or omission not required. Cleveland v. Wong, 237 K. 410, 415, 418, 701 P.2d 1301 (1985).
34. Supplemental instruction falling within statute did not confuse jury. State v. Lovely, 237 K. 838, 845, 703 P.2d 828 (1985).
35. Where first verdict form contains obvious mistake, trial judge did not err in allowing jury to reconsider. Fudge v. City of Kansas City, 239 K. 369, 381, 720 P.2d 1093 (1986).
36. Cited; absence of objection to supplemental instruction followed by reading of requested testimony examined. State v. Ruebke, 240 K. 493, 511, 731 P.2d 842 (1987).
37. Instruction on possession with intent and trial court's supplemental definition of "possession" examined. State v. Graham, 244 K. 194, 206, 768 P.2d 259 (1989).
38. Steps to fill requirements of two stipulations herein examined; both parties must agree to both. Glynos v. Jagoda, 249 K. 473, 478, 480, 819 P.2d 1202 (1991).
39. Instructions to jury, responding to jury questions and inconsistencies in jury verdict considered. Enlow v. Sears, Roebuck & Co., 249 K. 732, 744, 822 P.2d 617 (1991).
40. Nonunanimous verdict upheld in breach of warranty suit where plaintiffs served dishwashing liquid rather than similar-looking alcoholic beverage. Cott v. Peppermint Twist Mgt. Co., 253 K. 452, 480, 856 P.2d 906 (1993).
41. Whether any 10 jurors voting together on any question render a valid verdict in a civil jury trial examined. Hendrix v. Docusort, Inc., 18 K.A.2d 806, 808, 860 P.2d 62 (1993).
42. Whether judge committed reversible error by refusing to read back testimony jury requested during deliberations examined. State v. Myers, 255 K. 3, 6, 872 P.2d 236 (1994).
43. Cited; whether defendant was denied right of confrontation when court restricted defense cross-examination of rebuttal witness examined. State v. Coleman, 19 K.A.2d 412, 416, 870 P.2d 695 (1994).
44. Whether trial court's answer to jury's question prevented jury from properly evaluating complaining witness's credibility examined. State v. Manning, 257 K. 128, 130, 891 P.2d 365 (1995).
45. No substantial prejudice shown where judge failed to provide notice under subsection (e) or admonish jury under (d). Hawkinson v. Bennett, 265 K. 564, 596, 597, 962 P.2d 445 (1998).
46. Cited; in case involving extrajudicial evidence by juror, no new trial ordered on that basis. State v. Johnson, 40 K.A.2d 1059, 1076, 198 P.3d 769 (2008).