A MANUAL OF JURY TRIAL PROCEDURES - 2004
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Chapter Five: Jury Deliberations

5.5     Declaring the Jury Deadlocked
          A. In General
          B. Deadlock Resulting in Mistrial
          C. Jury§s Numerical Division

A MANUAL OF JURY TRIAL PROCEDURES - 2004

A.    Declaring the Jury Deadlocked: In General

In either a civil or criminal trial, if the jury is unable to agree upon a verdict, the court may either discharge the jury or return the jury to the jury room for further deliberations. Prior to discharging the jury, the trial judge must determine whether there is a probability that the jury can reach a verdict within a reasonable time. Upon receiving a communication from the jury stating that it cannot agree, the trial court is required to question the jury to determine independently whether further deliberations might overcome the deadlock. United States v. Cawley, 630 F.2d 1345, 1349 (9th Cir. 1980). Questioning the foreperson individually and the jury either individually or as a group is satisfactory. United States v. See, 505 F.2d 845, 851 (9th Cir. 1974), cert. denied, 420 U.S. 992 (1975). Merely questioning the jury foreperson may be insufficient. Arnold v. McCarthy, 566 F.2d 1377, 1387 (9th Cir. 1978).

A MANUAL OF JURY TRIAL PROCEDURES - 2004

B.    Declaring the Jury Deadlocked: Deadlock Resulting in Mistrial

If a criminal defendant does not seek a mistrial, to forestall double jeopardy claims, the court must find that manifest necessity supports discharging the jury. United States v. Sammaripa, 55 F.3d 433, 434 (9th Cir. 1995). A deadlocked jury is a classic example of "manifest necessity," authorizing the court to declare a mistrial without violating the prohibition against double jeopardy. See Arizona v. Washington, 434 U.S. 497, 509 (1978); Richardson v. United States, 468 U.S. 317, 326 (1984); United States v.

Hernandez-Guardado, 228 F.3d 1017, 1029 (9th Cir. 2000).

In determining whether to declare a mistrial because of jury deadlock, relevant factors for the district court to consider include the jury's collective opinion that it cannot agree, the length of the trial and complexity of the issues, the length of time the jury has deliberated, whether the defendant has objected to a mistrial, and the effects of exhaustion or coercion on the jury. Hernandez-Guardado, 228 F.3d at 1029.

Before discharging a jury and declaring a mistrial, the court should provide the parties an opportunity to "comment on the propriety of the order, to state whether that party consents or objects, and to suggest alternatives." Fed. R. Crim. P. 26.3. After taking the above steps, the court's decision to discharge the jury and declare a mistrial is afforded great deference upon finding the jury hopelessly deadlocked. Hernandez-Guardado, 228 F.3d at 1029.

Practical Suggestions

Procedure for Determining if Jury is Deadlocked

Initially, the court may ask the foreperson the following questions:

"Is there anything else the court can do to assist in the jury's deliberations?"

"Would an additional instruction assist in your deliberations?"

"Would the rereading of any testimony help the jury reach a conclusion?"

If the foreperson's response to all three questions is, "No," then inquire "In your opinion, is the jury hopelessly deadlocked?" If the foreperson's response is, "Yes," ask the foreperson, "Is there a reasonable probability that the jury can reach a unanimous verdict if sent back to the jury room for further deliberation?"

If the foreperson's response is,"No," then ask the following question of each member of the panel, "Do you feel there is a reasonable probability that the jury can reach a unanimous verdict if sent back to the jury room for further deliberation?" The court may wish to poll the jury and record their answers which must be yes or no. See Hernandez-Guardado, 228 F.3d at 1029 ("The most critical factor is the jury's own statement that it is unable to reach a verdict. Without more, however, such a statement is insufficient to support a declaration of mistrial.") (internal quotations and citations omitted).

A MANUAL OF JURY TRIAL PROCEDURES - 2004

C.    Declaring the Jury Deadlocked: Jury's Numerical Division

A court's inquiry into the jury's numerical division constitutes reversible error. Brasfield v. United States, 272 U.S. 448, 449-50 (1926); Jimenez v. Myers, 40 F.3d 976, 980 n.3 (9th Cir. 1993), cert. denied, 516 U.S. 813 (1995).

The mere fact that jurors volunteer the numerical division of the jury does not compel mistrial or reversal. United States v. Ajiboye, 961 F.2d 892, 894 (9th Cir. 1992). When the trial court inadvertently learns of the numerical split, the court may inform the jury: (1) not to disclose the numerical vote again; (2) to continue deliberations; and, (3) that no juror is to surrender conscientiously held beliefs. United States v. Changco, 1 F.3d 837, 842 (9th Cir.), cert. denied, 510 U.S. 1019 (1993).

See also § 5.2A.