A MANUAL OF JURY TRIAL PROCEDURES - 2004

"An Allen charge is, on occasion, a legitimate and highly useful reminder to a jury to do its duty." Rodriguez v. Marshall, 125 F.3d 739, 750 (9th Cir. 1997), cert. denied, 524 U.S. 919 (1998).

In Allen v. United States, 164 U.S. 492, 501-02 (1896), the United States Supreme Court upheld a supplemental instruction given to a deadlocked jury that urged jurors to reconsider their opinions and continue deliberating. All circuit courts of appeal have since upheld some form of supplemental "Allen" charge. Lowenfield v. Phelps, 484 U.S. 231, 238 n.1 (1988). The circuits differ, however, in their approval of the form and timing of supplemental instructions. United States v. Wills, 88 F.3d 704, 716 n.6 (9th Cir.) (reviewing circuit case law on Allen instruction), cert. denied, 519 U.S. 1000 (1996).

In the Ninth Circuit, an Allen charge is upheld unless it is clear from the record that the charge had an impermissibly coercive effect on the jury. United States v. Ajiboye, 961 F.2d 892, 893 (9th Cir. 1992). See also United States v. Croft, 124 F.3d 1109, 1123 (9th Cir. 1997); United States v. Mason, 658 F.2d 1263, 1266 (9th Cir. 1981) (approving charges "only if in a form not more coercive than that approved in Allen"). The same instruction is recommended for both civil and criminal trials. See NINTH CIRCUIT MANUAL OF MODEL JURY INSTRUCTIONS– CRIMINAL INSTR. 7.7 Deadlocked Jury (2003); NINTH CIRCUIT MANUAL OF MODEL JURY INSTRUCTIONS–CIVIL INSTR. 4.6 Deadlocked Jury (2001).

A MANUAL OF JURY TRIAL PROCEDURES - 2004

B.    Allen Charge: Timing

The Allen instruction is usually delivered after the jury announces a deadlock, but may be given as part of an original charge. Wills, 88 F.3d at 716. An Allen charge included in the initial instructions is less coercive than one provided after the jury reaches impasse. United States v. Armstrong, 654 F.2d 1328, 1334-35 (9th Cir. 1981), cert. denied, 454 U.S. 1157 (1982). Generally, a second Allen charge is impermissible. United

A MANUAL OF JURY TRIAL PROCEDURES - 2004

C.    Allen Charge: Coercion

Four factors are examined in determining the coerciveness of an Allen instruction: "(1) the form of the instruction; (2) the period of deliberation following the Allen charge; (3) the total time of jury deliberation; and (4) the indicia of coerciveness or pressure upon the jury." Wills, 88 F.3d at 717 (quoting United States v. Foster, 711 F.2d 871, 874 (9th Cir. 1983), cert. denied, 465 U.S. 1103 (1984)).

1. Form or Content of Allen Charge

See NINTH CIRCUIT MANUAL OF MODEL JURY INSTRUCTIONS–CRIMINAL INSTR. 7.7 Deadlocked Jury (2003); NINTH CIRCUIT MANUAL OF MODEL JURY INSTRUCTIONS–CIVIL INSTR. 4.6 Deadlocked Jury (2001).

Allen instructions should caution jurors not to abandon their conscientiously held views. United States v. Lorenzo, 43 F.3d 1303, 1307 (9th Cir. 1995). While it is helpful to incorporate an instruction on the burden of proof, its absence does not necessarily require reversal. United States v. Quintero-Barraza, 78 F.3d 1344, 1350 (9th Cir. 1995), cert. denied, 519 U.S. 848 (1996); United States v. Cuozzo, 962 F.2d 945, 952 (9th Cir.), cert. denied, 506 U.S. 978 (1992).

Allen charges should not refer to the possibility of a retrial. United States v. Hernandez, 105 F.3d 1330, 1334 (9th Cir.) ("The district court should not have mentioned the possibility of retrial."), cert. denied, 522 U.S. 890 (1997).

2. Period of Deliberation Following the Allen Charge

A relatively short deliberation after an Allen charge does not raise a suspicion of coercion if the jury decided simple issues. Hernandez, 105 F.3d at 1334 (40 minutes of additional deliberations); United States v. Bonam, 772 F.2d 1449, 1451 (9th Cir. 1985) (one and one-half hours of additional deliberations). Nor do extended deliberations after the supplemental instruction necessarily raise a suspicion of coercion. Wills, 88 F.3d at 718 (four days of additional deliberations); United States v. Easter, 66 F.3d 1018, 1023 (9th Cir. 1995) (two and one-half hours of additional deliberation), cert. denied, 516 U.S. 1150 (1996); Lorenzo, 43 F.3d at 1307 n.3 (five and one-half hours additional deliberations). However, "[a] jury verdict reached immediately after an Allen charge can be an indication of coercion." Bonam, 772 F.2d at 1451.

3. Total Time of Jury Deliberations

In addition to the deliberation time following the charge, appellate courts will also consider the total amount of time the jury deliberated. Cuozzo, 962 F.2d at 952 (finding no appearance of coercion where the total time of deliberation was proportionate for an eleven-day trial, after which the jury deliberated two days before receiving the Allen charge, and six additional hours after it).

4. Indicia of Coercion

An Allen charge should not refer to the costs of trial or the possible need for retrial. Hernandez, 105 F.3d at 1334; Bonam, 772 F.2d at 1450.

If the judge learns of a numerical split, even inadvertently, extreme caution should be exercised before giving an Allen instruction. Ajiboye, 961 F. 2d at 893-94. Similarly, an Allen charge should not be given if the court learns the identity of the holdout jurors. United States v. Sae-Chua, 725 F.2d 530, 532 (9th Cir. 1984).