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286.1 General Rules And Miscellaneous Issues

    286.1.1 Deadlock: General Rules
    286.1.2 Advice As To Consequences Of Deadlock
    286.1.3 New Instructions At The Time Of The Deadlock Heighten The Coerciveness
    286.1.4 Removal Of Dissenting (Holdout) Juror When Jury Is Deadlocked
    286.1.5 Instruction On Lesser Included Offense In Response To Jury Deadlock
    286.1.6 Deadlock: Offer To Readback Testimony In Response To Juror Deadlock As Improperly Coercive
    286.1.7 Judge's Post-Deadlock Comment On The Evidence May Coerce Verdict
    286.1.8 Acquittal First Instruction When Jury Announces Deadlock Is Impermissibly Coercive
    286.1.9 Deadlock: Failure Of Jury To Agree Upon Entrapment
    286.1.10 Deadlock: Making Record As To Indicia Of Coercion Which Will Not Appear In The Record
    286.1.11 Deadlock: Suggestion Of Instructional Modification By Counsel May Waive Issues On Appeal
    286.1.12 Deadlock: Inquiry Into Numerical Division of Jury May Coerce Verdict
    286.1.13 Deadlock: No Repetition Of Allen Instruction
    286.1.14 Deadlock: Federal Circuit Model Instructions And Notes
    286.1.15 Deadlock Instructions: Factors To Consider
    286.1.16 Deadlock Instructions: Whether Right To Unanimous Verdict May Be Waived

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PRACTICE NOTE: The determination as to whether there is a reasonable probability of agreement rests in the sound discretion of the trial court. (People v. Miller (CA 1990) 50 C3d 954, 994 [269 CR 492].) "The court must exercise its power, however, without coercion of the jury, so as to avoid displacing the jury's independent judgment 'in favor of considerations of compromise and expediency.' [Citation]." (Ibid.) Whether coercion has occurred "is essentially a factual determination, dependent upon varying circumstances." (People v. Duran (CA 1983) 140 CA3d 485, 505 [189 CR 595].)

    It has been recognized as proper for the judge to make reasonable noncoercive efforts to obtain jury agreement. (See e.g., State v. Weidul (ME 1993) 628 A2d 135, 136; Section 15-4.4 of the ABA Standards For Criminal Justice (Trial By Jury) (2d Ed. 1978); see also People v. Gainer (CA 1977) 19 C3d 835, 842-47 [139 CR 861]; WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 520 [Supplemental Instructions On Agreement], comment p. 2 (University of Wisconsin Law School, 2000).)

    However, many state courts have banned or restricted use of the "Allen" (Allen v. U.S. (1896) 164 US 492, 501-02 [17 SCt 154; 41 LEd 528]) charge. (See State v. Thomas (AZ 1959) 342 P2d 197, 200 ("evils far outweigh the benefits"); People v. Gainer (CA 1977) 566 P2d 997, 1009 [139 CR 861]; State v. Flint (ID 1988) 761 P2d 1158, 1164 ["only a blanket prohibition against dynamite instructions will sufficiently protect the deadlocked jurors from coercion"]; State v. Czachor (NJ 1980) 413 A2d 593, 594; Commonwealth V. Spencer (PA 1971) 275 A2d 299, 304 [Allen charge violates federal constitution].)

    For example, in State v. Flint, 761 P2d at 1165, the Idaho Supreme Court held that the giving of a "dynamite" instruction was reversible error. The Court overruled prior decisions which had approved the instruction and stated: "Our review of applicable case law, sound policy considerations, and personal experiences from the perspective of both bench and bar, convinces us that the future use of dynamite instructions is not consistent with the orderly administration of criminal justice." (State v. Flint, 761 P2d at 1164.)

    Many federal Circuit Courts of Appeal have expressed serious reservations concerning potential coercive effects of such instructions. (See BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) § 131.501[1].)

RESEARCH NOTES:

Annotation, Instructions Urging Dissenting Jurors In State Criminal Case To Give Due Consideration To Opinion Of Majority (Allen Charge)—Modern Cases, 97 ALR3d 96.

See also Manual On Recurring Problems In Criminal Trials [20. Deadlocked Jury].

See also Capital Punishment Handbook [4.5.5 a. Allen-Type Charges: General Principles And Authorities].

See also generally, NCJIC 305.4.1 [Deadlock, Deliberation Coercion].

See also generally, NCJIC 305.19.10 [Supplemental Instruction/Deliberation Procedure].

See generally, NCJIC 286.1.14 [Deadlock: Elements Of Proper Instructions And Notes].

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PRACTICE NOTE: It has been held that the judge has no obligation to respond to a jury request as to the consequences of a hung jury. (Mitchell v. State (MD 1995) 659 A2d 1282, 1285; see also McKinney v. State (GA 1995) 463 SE2d 136, 140 [trial court's recharge explaining that a hung jury would result in a mistrial for "that particular charge" meant only that particular charge and could not reasonably be interpreted as jeopardizing the jury's existing unanimous verdicts as to the other two counts].)

    On the other hand, the failure to instruct on the consequences of a hung jury may be prejudicial. (See e.g., People v. Atkinson (MI 1982) 328 NW2d 102, 105 [jury instructed that court would be obliged to declare mistrial and that case would therefore have to be retried before another 12 people at the next term of court]; see also State v. Ramseur (NJ 1987) 524 A2d 188, 280 [supplemental instructions given after jury announced that it could not reach unanimity which did not reinform jury of consequences of nonunanimous verdict, and which improperly emphasized importance of reaching unanimous verdict were coercive].)

    See Joseph & LaMonica, LOUISIANA CIVIL LAW TREATISE CRIMINAL JURY INSTRUCTIONS 7.01, comments [Recommended Guidelines For The Conduct Of Capital Case Sentencing Hearings] pp.9 (West, 2000) [if jury has deliberated for a substantial period of time, on request of the defendant jury should be instructed that failure to reach a verdict will result in a sentence of life imprisonment].

See Manual On Recurring Problems In Criminal Trials [20. Deadlocked Jury].

See also Capital Punishment Handbook [4.5.5 a. Allen-Type Charges: General Principles And Authorities].

See also generally, NCJIC 305.4.1 [Deadlock, Deliberation Coercion].

See also generally, NCJIC 305.19.10 [Supplemental Instruction/Deliberation Procedure].

See generally, NCJIC 286.1.14 [Deadlock: Elements Of Proper Instructions And Notes].

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PRACTICE NOTE: When dealing with a deadlocked jury, the coerciveness of any instructions given will be heightened if the judge gives new and unfamiliar instructions at the time of deadlock rather than simply repeating the part of the original jury instructions dealing with the jury's duty to deliberate with an open mind. (See e.g., U.S. v. Brown (7th Cir. 1980) 634 F2d 1069, 1070 [giving deadlock instruction for the first time at the deadlock was reversible error]; see also Romine v. Georgia (1988) 484 US 1048, 1050 [108 SCt 788; 98 LEd2d 873] [opinion of Justice Marshall dissenting from denial of rehearing]; 8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 10.02 [Duty To Deliberate ("Allen" charge)] Comments (2000).)

See Manual On Recurring Problems In Criminal Trials [20. Deadlocked Jury].

See also Capital Punishment Handbook [4.5.5 a. Allen-Type Charges: General Principles And Authorities].

See also generally, NCJIC 305.4.1 [Deadlock, Deliberation Coercion].

See also generally, NCJIC 305.19.10 [Supplemental Instruction/Deliberation Procedure].

See generally, NCJIC 286.1.14 [Deadlock: Elements Of Proper Instructions And Notes].

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    See NCJIC 278.7 [Dismissal Of Juror For Failure To Deliberate].

    See NCJIC 280.3 [Propriety Of Affirmative Anti-Nullification Instructions And/Or Sanctions In Response To Threatened Nullification].

    See NCJIC 280.6 [Dismissal Of Nullifying Juror].

See Manual On Recurring Problems In Criminal Trials [20. Deadlocked Jury].

See also Capital Punishment Handbook [4.5.5 a. Allen-Type Charges: General Principles And Authorities].

See also generally, NCJIC 305.4.1 [Deadlock, Deliberation Coercion].

See also generally, NCJIC 305.19.10 [Supplemental Instruction/Deliberation Procedure].

See generally, NCJIC 286.1.14 [Deadlock: Elements Of Proper Instructions And Notes].

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    286.1.5    Instruction On Lesser Included Offense In Response To Jury Deadlock

PRACTICE NOTE: Under some circumstances it could be viewed as coercive to submit the jury a lesser included offense option in response to juror deadlock. (State v. Jones (NJ 1986) 518 A2d 496, 499.)

    Additionally, such an instruction could be viewed as an improper new theory. (See NCJIC 285.4.2 [Supplemental Instructions: New Charges Or Theories]; but see U.S. v. Welbeck (2nd Cir. 1998) 145 F3d 493, 496-97 [no error in submitting lesser included offenses where there is no indication that defendant was unfairly prejudiced by the late instruction].)

See Manual On Recurring Problems In Criminal Trials [20. Deadlocked Jury].

See also Capital Punishment Handbook [4.5.5 a. Allen-Type Charges: General Principles And Authorities].

See also generally, NCJIC 305.4.1 [Deadlock, Deliberation Coercion].

See also generally, NCJIC 305.19.10 [Supplemental Instruction/Deliberation Procedure].

See generally, NCJIC 286.1.14 [Deadlock: Elements Of Proper Instructions And Notes].

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PRACTICE NOTE: It is improperly coercive to order a readback of testimony in response to a juror question. (See NCJIC 284.1.10 [Court Should Not Read Back Testimony In Response To Jury Question].)

    Similarly, it is improperly coercive to offer a readback of testimony in response to juror deadlock. For example, in U.S. v. Manning (1st Cir. 1996) 79 F3d 212, the jury sent out a note stating that it was deadlocked. (Id. at 222.) The court responded as follows: "Would reading any portion of the testimony to you assist you in reaching a decision? If so, please tell me what portions of testimony of which witness you would like." The First Circuit concluded that this response was improperly coercive:

    "This response not only failed to discourage the notion that the jury was bound to continue to deliberate indefinitely, it suggested the opposite, i.e., that a jury is required to do so. Having asked whether continued deliberation...was necessary, and being offered a review of testimony in response, a rational lay jury could reasonably have inferred that the court wanted it to reach a verdict, regardless of whether it could do so in good conscience." (Manning, 79 F3d at 223.)

See Manual On Recurring Problems In Criminal Trials [20. Deadlocked Jury].

See also Capital Punishment Handbook [4.5.5 a. Allen-Type Charges: General Principles And Authorities].

See also generally, NCJIC 305.4.1 [Deadlock, Deliberation Coercion].

See also generally, NCJIC 305.19.10 [Supplemental Instruction/Deliberation Procedure].

See generally, NCJIC 286.1.14 [Deadlock: Elements Of Proper Instructions And Notes].

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PRACTICE NOTE: It is improper for the trial judge to express an opinion as to the defendant’s guilt  after the jury has indicated its inability to agree upon a verdict. (Wharton’s Criminal Procedure (West, 13th Ed. 1989) § 442, p. 905; but see People v. Rodriguez (CA 1986) 42 C3d 730, 765-70 [230 CR 667] [comment on the evidence after the jury has stated it is deadlocked is proper but must be "rigorously scrutinized for scrupulous fairness"]; Rodriguez v. Marshall (9th Cir. 1997) 125 F3d 739, 749 [trial judge may comment on the evidence so long as he makes it clear that it is the duty of the jury to determine the facts themselves].)

See Manual On Recurring Problems In Criminal Trials [20. Deadlocked Jury].

See also Capital Punishment Handbook [4.5.5 a. Allen-Type Charges: General Principles And Authorities].

See also generally, NCJIC 305.4.1 [Deadlock, Deliberation Coercion].

See also generally, NCJIC 305.19.10 [Supplemental Instruction/Deliberation Procedure].

See generally, NCJIC 286.1.14 [Deadlock: Elements Of Proper Instructions And Notes].

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PRACTICE NOTE: Jones v. U.S. (DC 1988) 544 A2d 1250, 1254 held that "when the jury reports a deadlock between the greater and the lesser offense, the acquittal first instruction should not be given because it is impermissibly coercive." (See also Parker v. U.S. (DC 1991) 601 A2d 45, 47-48; but see Jones v. U.S. (DC 1993) 620 A2d 249, 251 [no error where defense counsel neither requested that jury be permitted to consider the lesser nor objected to the acquittal first instruction].)

OPINION AVAILABLE: Click here. [Opinion Bank # O-313].

See Manual On Recurring Problems In Criminal Trials [20. Deadlocked Jury].

See also Capital Punishment Handbook [4.5.5 a. Allen-Type Charges: General Principles And Authorities].

See also generally, NCJIC 305.4.1 [Deadlock, Deliberation Coercion].

See also generally, NCJIC 305.19.10 [Supplemental Instruction/Deliberation Procedure].

See generally, NCJIC 286.1.14 [Deadlock: Elements Of Proper Instructions And Notes].

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PRACTICE NOTE: No verdict of guilt may be returned unless the jury unanimously agrees upon the issue of entrapment. (See NCJIC 257.3.1.7 [Entrapment: Procedure When Jury Fails To Agree].) Therefore, even if the jury indicates that it overwhelmingly rejected entrapment, unless this rejection is unanimous the judge should reinstruct the jury on entrapment and send it back for further deliberations or, if further deliberations would be fruitless, declare a mistrial. (See e.g., People v. McIntyre (CA 1990) 222 CA3d 229, 232-33 [271 CR 467].)

See Manual On Recurring Problems In Criminal Trials [20. Deadlocked Jury].

See also Capital Punishment Handbook [4.5.5 a. Allen-Type Charges: General Principles And Authorities].

See also generally, NCJIC 305.4.1 [Deadlock, Deliberation Coercion].

See also generally, NCJIC 305.19.10 [Supplemental Instruction/Deliberation Procedure].

See generally, NCJIC 286.1.14 [Deadlock: Elements Of Proper Instructions And Notes].

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PRACTICE NOTE: Indicia of coercion which might not otherwise appear in the reporter’s transcript such as facial expressions of the jurors, the prosecutor’s reaction, or the judge’s tone of voice when reading the Allen Instruction, should be described for the record by counsel. (See Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) § 3:15, p. 3-14.)

See Manual On Recurring Problems In Criminal Trials [20. Deadlocked Jury].

See also Capital Punishment Handbook [4.5.5 a. Allen-Type Charges: General Principles And Authorities].

See also generally, NCJIC 305.4.1 [Deadlock, Deliberation Coercion].

See also generally, NCJIC 305.19.10 [Supplemental Instruction/Deliberation Procedure].

See generally, NCJIC 286.1.14 [Deadlock: Elements Of Proper Instructions And Notes].

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PRACTICE NOTE: If counsel suggests alternative language for a deadlock instruction and that language is used by the court, the right to object to any instruction at all may be waived. (See Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) § 3:15, p. 3-14.) Hence, if counsel desires to preserve the objection to any deadlock instruction, it may be necessary to clearly indicate for the record that the alternative language was only proposed in lieu of counsel’s request that no deadlock instruction be given.

    See NCJIC 295.3.1.6 ["Defensive Act" Made In Light Of Court Ruling Does Not Waive Issue].

See Manual On Recurring Problems In Criminal Trials [20. Deadlocked Jury].

See also Capital Punishment Handbook [4.5.5 a. Allen-Type Charges: General Principles And Authorities].

See also generally, NCJIC 305.4.1 [Deadlock, Deliberation Coercion].

See also generally, NCJIC 305.19.10 [Supplemental Instruction/Deliberation Procedure].

See generally, NCJIC 286.1.14 [Deadlock: Elements Of Proper Instructions And Notes].

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PRACTICE NOTE: California cases have traditionally allowed the judge to inquire into the numerical division of the jurors and to urge the jury to reach a verdict. (See e.g., People v. Gill (CA 1998) 60 CA4th 743, 748 [70 CR2d 369].)

    In other jurisdictions it is "well settled that a trial judge should not inquire into the numerical division of the jury when the jury has indicated its inability to agree." (U.S. v. Webb (8th Cir. 1987) 816 F2d 1263, 1266.)

    In Brasfield v. United States (1926) 272 US 448 [47 SCt 135; 71 LEd 345] the Supreme Court held that "the inquiry itself should be regarded as grounds for reversal." (Id. at 450, 47 SCt at 135.) The Court stated: "Such procedure serves no useful purpose that cannot be attained by questions not requiring the jury to reveal the nature of extent of its division. Its effect upon a divided jury will often depend upon circumstances which cannot properly be known to the trial judge or to the appellate courts and may vary widely in different situations, but in general its tendency is coercive. It can rarely be resorted to without bringing to bear in some degree, serious, although not measurable, an improper influence upon the jury, from whose deliberations every consideration other than that of the evidence and the law as expounded in a proper charge, should be excluded. Such a practice, which is never useful and is generally harmful, is not to be sanctioned." (Ibid.; see also U.S. v. Webb (8th Cir. 1987) 816 F 2d 1263, 1266; United States v. Hollister (8th Cir. 1984) 746 F2d 420, 425.)

    Similarly, in Jiminez v. Myers (9th Cir. 1993) 40 F3d 976, 978 the 9th Circuit held that such procedures may violate the defendant's 14th Amendment due process rights by impermissibly coercing the jury to render a guilty verdict. In Jiminez, the California trial judge twice inquired into the numerical division of the jury, commented with approval upon the jurors' "movement" toward a verdict and told the jury that it should seek unanimity without admonishing individual jurors not to surrender their individual views simply to achieve a verdict. Two appellate judges held this to be a due process violation. (Compare Rodriguez v. Marshall (9th Cir. 1997) 125 F3d 739, 751 [inquiry held not to be coercive where court on four occasions reminded the jurors not to surrender their sincerely held beliefs under pressure from the majority].) Judge Kozinski dissented on the basis that the majority had invented a type of "de facto" rule of juror coercion.

Annotation, Propriety And Prejudicial Effect Of Trial Court's Inquiry As To Numerical Division Of Jury, 77 ALR3d 769.

See also Manual On Recurring Problems In Criminal Trials [20. Deadlocked Jury].

See also Capital Punishment Handbook [4.5.5 a. Allen-Type Charges: General Principles And Authorities].

See also generally, NCJIC 305.4.1 [Deadlock, Deliberation Coercion].

See also generally, NCJIC 305.19.10 [Supplemental Instruction/Deliberation Procedure].

See generally, NCJIC 286.1.14 [Deadlock: Elements Of Proper Instructions And Notes].

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PRACTICE NOTE: It may be argued that if the court has already given an Allen (Allen v. U.S. (1896) 164 US 492, 501-02 [17 SCt 154; 41 LEd 528]) instruction, it should not be repeated. (See Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) p. 3-14.) For example, in U.S. v. Seawell (9th Cir. 1977) 550 F2d 1159, 1163 the 9th Circuit adopted a per se rule prohibiting the repetition of the charge if the jury itself has not requested reinstruction. (U.S. v. Barone (1st Cir. 1997) 114 F3d 1284, 1304-05 ["At a minimum, there ought normally be special circumstances, and not merely a continued inability by the jury to decide, to justify a second charge"].) Other courts, while recognizing the potential danger of a second Allen instruction, will consider the circumstances in deciding whether there was error. (See e.g., U.S. v. Brown (7th Cir. 1980) 634 F2d 1069, 1070 [permissible to repeat deadlock instruction if first given when jury retires].)

See Manual On Recurring Problems In Criminal Trials [20. Deadlocked Jury].

See also Capital Punishment Handbook [4.5.5 a. Allen-Type Charges: General Principles And Authorities].

See also generally, NCJIC 305.4.1 [Deadlock, Deliberation Coercion].

See also generally, NCJIC 305.19.10 [Supplemental Instruction/Deliberation Procedure].

See generally, NCJIC 286.1.14 [Deadlock: Elements Of Proper Instructions And Notes].

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    286.1.14    Deadlock: Federal Circuit Model Instructions And Notes

See 1st Circuit Pattern Jury Instructions - Criminal 6.06.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.45.

See also 6th Circuit Pattern Jury Instructions - Criminal 9.04.

See also 7th Circuit Federal Jury Instructions - Criminal 7.06.

See also 9th Circuit Model Jury Instructions - Criminal 7.7.

See also 9th Circuit Model Jury Instructions - Criminal 7.8.