State v. Keaulana ( 1989 )

DISSENTING OPINION OF

WAKATSUKI, J.

I respectfully dissent.

Brasfield v. United States, 272 U.S. 448 (1926), condemned the inquiry by a court into the numerical division of a deadlocked jury because the disclosure would exert a coercive effect on jury members. The continued polling of jury members reveals the numerical division of the jury as in Brasfleld, and goes even further by disclosing each individual juror’s position. Consequently, the coercive effect on jury members is, in my opinion, even greater with continued jury polling than with the inquiry in Brasfleld.

I would therefore adopt the position of the Third Circuit in United States v. Spitz, 696 F.2d 916 (11th Cir. 1983) (per curiam), and hold that the continued polling of ajury after a dissent has been registered is per se reversible error.