New Mexico Statutes
Article 5 - Drawing and Empaneling Jurors
Section 38-5-17 - [Verdict by ten or more jurors; polling jury.]

In civil causes when the jury, or as many as ten of them, have agreed upon a verdict, they must be conducted into court, their names called by the clerk, and the verdict rendered by their foreman; the verdict must be in writing, signed by the foreman, and must be read by the clerk to the jury, and the inquiry made whether it is their verdict. Either party may require the jury to be polled, which is done by the court or clerk asking each juror if it is his verdict; if upon such inquiry or polling, more than two of the jurors disagree thereto, the jury must be sent out again, but if no such disagreement be expressed, the verdict is complete and the jury discharged from the case.
History: 1978 Comp. § 38-5-17, enacted by Laws 1933, ch. 98, § 1.
Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.
Cross references. — For number of jurors in criminal cases, see 38-5-13 NMSA 1978.
For right to jury trial, see N.M. Const., art. II, § 12.
For number of jurors and requirements as to verdicts in civil cases, see Rules 1-038 and 1-048 NMRA.
For requirement of unanimous verdict in criminal cases, see Rule 5-611A NMRA.
Ten jurors must agree to each material finding supporting verdict. — This section means that a verdict must be received by the court when at least 10 jurors, not necessarily the same 10, agree to each material finding supporting that verdict; provided, however, that none of the jurors, upon whose votes the verdict depends, is guilty of irreconcilable inconsistencies or material contradictions when his votes on all issues are considered. Naumburg v. Wagner, 1970-NMCA-019, 81 N.M. 242, 465 P.2d 521.
Section does not mean the same 10 jurors must agree on every issue. Naumburg v. Wagner, 1970-NMCA-019, 81 N.M. 242, 465 P.2d 521.
Any 10 jurors are necessary and sufficient to agree on any issue, so long as none of these jurors has voted inconsistently. Naumburg v. Wagner, 1970-NMCA-019, 81 N.M. 242, 465 P.2d 521.
Polling of jury is not proper to determine amount of damage award or for the purpose of revealing its determination of factual issues, since jury verdicts are required to be written. Sanchez v. Martinez, 1982-NMCA-168, 99 N.M. 66, 653 P.2d 897.
Answers to special interrogatories cannot be orally modified. — Written answers made by a jury to special interrogatories cannot be modified by oral answers of jurors to questions by the court. Sanchez v. Martinez, 1982-NMCA-168, 99 N.M. 66, 653 P.2d 897.
Jury polling did not constitute "jury-urging". — Where plaintiff' was employed by defendant as a surgeon; defendant terminated plaintiff's employment when defendant's administrative staff who attended a peer review meeting reported to defendant's staff who did not attend the meeting that plaintiff had engaged in unprofessional and aggressive behavior at the meeting; plaintiff sued defendant for violation of the confidentiality provisions of Section 41-9-5 NMSA 1978; a special verdict form required the jury to check a blank if it found that defendant had breached its implied promise that plaintiff would not suffer adverse consequences by participating in the peer review process and to place "Yes" in the blank if it found that defendant's breach of the implied promise was a proximate cause of plaintiff's damages; the jury checked the blank, but did not place "Yes" in the blank; the special verdict form indicated that the jury found that although defendant breached the implied promise, the breach was not a proximate cause of plaintiff's damages; at defendant's request, the district court polled the jury and determined that one juror was uncertain or confused about the answer to the question of proximate cause; the district court sent the jury back to deliberate on the proximate cause question with instructions to place "Yes" in the blank if the jury determined that the breach was a proximate cause of the damages and not to place "Yes" in the blank if the jury determined that the breach was not a proximate cause; when the jury returned, the special verdit form included a "Yes" in answer to the proximate cause question; and defendant argued that the district court's actions were coercive and constituted impermissible "verdict-urging", the district court's statements to the jury were neutral in form and substance and the district court did not err in permitting the jury to further deliberate on the proximate cause question. Yedidag v. Roswell Clinic Corp., 2013-NMCA-096, cert. granted, 2013-NMCERT-009.

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