Rule 1-048 Juries of fewer than twelve; stipulation.

Committee commentary. — When a party makes a general demand for a jury trial, a six person jury normally will be assembled, five of whom must agree on a verdict. Rule 1-038(B)(2) NMRA; Rule 1-038(B) NMRA. If any party properly makes a request for a twelve person jury, a twelve person jury will be assembled, ten of whom must agree on a verdict. Rule 1-038(B)(2) and (B)(3); Rule 1-038(G) NMRA.

This rule allows the parties to agree to a jury of any number fewer than twelve as well as allowing them to agree that a binding verdict may be returned by any number of jurors above a majority. Normally parties will vary from six or twelve person juries only when these standard sized juries have been selected but the number of jurors and alternates is reduced below twelve or six during the course of the proceeding. When this happens, a question will arise concerning the number of jurors needed for a binding verdict. If the parties stipulate to an eleven person jury without also modifying the number of jurors who must agree on a verdict, the requirement of ten jurors will continue in effect. In like manner, if the parties stipulate to use a five person jury instead of a six person jury, all five jurors must agree on a verdict unless the parties also agreed to accept as binding the verdict of fewer than five jurors.

Parties who stipulate to a jury of fewer than eleven or fewer than five necessarily also have to stipulate to the number of jurors who must agree in order to render a binding verdict.

Often, alternate jurors are not needed to fill vacancies in the jury. Normally they are discharged from jury service when the jury retires to deliberate. Nothing in this rule prevents the parties from stipulating that alternate jurors may participate fully in the deliberations and the decision of the jury, so long as the parties also stipulate as to the number of jurors (including the alternates) required to return a valid verdict.