N.M. R. Civ. P. Dist. Ct. 1-048
Notwithstanding the provisions of Rule 1-038 NMRA, the parties may stipulate that the jury shall consist of any number fewer than twelve or that a verdict or finding of a stated majority of the jurors shall be taken as the verdict or finding of the jury.
N.M. R. Civ. P. Dist. Ct. 1-048
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.
ANNOTATIONS The 2001 amendment, effective December 3, 2001, inserted "Notwithstanding the provisions of Rule 1-038 NMRA" at the beginning, substituted "fewer" for "less" preceding "than twelve or that" and deleted the former second sentence which read "In cases where a jury has been demanded but no party has demanded a jury of twelve and there is no express stipulation as to any number less than twelve, the parties shall be deemed to have stipulated to a jury of six as provided in Rule 1-038". See Rule 1-038 NMRA.
For right to trial by jury, and size of same, see Rule 1-038 NMRA. For waiver of jury trial, see Rules 1-038 and 1-052 NMRA. For constitutional right to trial by jury, see N.M. Const., art. II, §12. For verdict by 10 jurors, see Section 38-5-17 NMSA 1978. Verdict of 10 jurors. - Former version of this rule, providing that when at least 10 jurors agreed on a verdict, such verdict was valid, unless upon requested polling of the jury more than two jurors disagreed therewith, meant that at least 10 jurors, but not necessarily the same 10, had to agree to each material finding supporting the verdict, provided that none of the jurors upon whose votes the verdict depended was guilty of irreconcilable inconsistencies or material contradictions when his votes on all issues were considered. Naumburg v. Wagner, 1970-NMCA-019, 81 N.M. 242, 465 P.2d 521. Polling of jury. - Under former version of this rule, parties were entitled as a matter of right to have jury polled upon making a proper request therefor; error committed by refusal to poll the jury could not be cured by subsequent polling or filing of affidavits by jurors, but in itself this failure did not constitute reversible error. Levine v. Gallup Sand & Gravel Co., 1971-NMSC-071, 82 N.M. 703, 487 P.2d 131. Law reviews. - For article, "The `New Rules' in New Mexico," see 1 Nat. Resources J. 96 (1961). Am. Jur. 2d, A.L.R. and C.J.S. references. - 47 Am. Jur. 2d Jury §§190, 204. Validity of agreement, by stipulation of waiver in state civil case, to accept verdict by number or proportion of jurors less than that constitutionally permitted, 15 A.L.R.4th 213. 50 C.J.S. Juries §§ 261 to 267, 510; 89 C.J.S. Trial §494.