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286.2 Deadlock: Elements Of Proper Instructions

    286.2.1 Deadlock: Jurors Must Be Reminded Not To Surrender Conscientiously Held Beliefs
    286.2.2 Deadlock: Both Minority And Majority Must Be Encouraged To Consider The Other's View
    286.2.3 Deadlock: Instructions Should Inform Jury That A Verdict Need Not Be Reached
    286.2.4 Deadlock: Juror Should Not Change Mind Just To Reach Verdict
    286.2.5 Deadlock: Jury May Take All The Time It Needs
    286.2.6 Deadlock: Improper To Give Jury Time Limit For Deliberations
    286.2.7 Deadlock: Supplemental Instruction Should Inform Jurors That Doubt As To Any Element Should Be Resolved In Favor Of Defendant
    286.2.8 Deadlock: Supplemental Charge Should Remind Jurors Of Burden Of Proof
    286.2.9 Deadlock: No Requirement That Jury Reach Agreement
    286.2.10 Summary Of Proper Deadlock Instruction Elements

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RATIONALE: An instruction may be coercive to deadlocked jurors if it fails to admonish them not to surrender conscientiously held beliefs.

POINTS AND AUTHORITIES: When a trial court instructs a deadlocked jury it "is essential in almost all cases to remind jurors of their duty and obligation not to surrender conscientiously held beliefs simply to secure a verdict for either party." (U.S. v. Mason (9th Cir. 1981) 658 F2d 1263, 1268; see also U.S. v. Scott (6th Cir. 1977) 547 F2d 334, 337 ["one of the most important parts of the Allen charge"]; 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]; Sartin v. State (OK 1981) 637 P2d 897, 898; see also Packer v. Hill (9th Cir. 2002) 291 F3d 569, 580 [after learning jury was split 11 to 1, trial judge's asking whether further deliberations might "help" the jury "make further progress" was equivalent to Allen charge, putting coercive pressure on the holdout juror; failure to give any counter-balancing instruction (affirming the right and responsibility of individual jurors not to abandon conscientiously held convictions) supported conclusion that verdict was reached because holdout juror was coerced to change vote].)

    A trial court's failure to give such a cautionary instruction weighs heavily in favor of the conclusion that the defendant's right to a fair trial and impartial jury has been violated. (See Jiminez v. Myers (9th Cir. 1993) 40 F3d 976, 981; see also U.S. v. Bonam (9th Cir. 1985) 772 F2d 1449, 1450; Mason, 658 F2d at 1268.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.12; 10.2].

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].

    As jurors, you must discuss the case with each other and deliberate.  You should do so with a view to reaching an agreement, if you can do so without compromising individual judgment. Each of you must decide the case for yourself, but only after impartial consideration of all the evidence with your fellow jurors.  During your deliberations do not hesitate to reexamine your own views and change your opinion if you are convinced your opinion is erroneous. But do not surrender your honest conviction as to the weight or effect of the evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.

[See Rodriguez v. Marshall (9th Cir. 1997) 125 F3d 739, 751; U.S. v. Scott (6th Cir. 1977) 547 F2d 334, 337; U.S. v. Berroa (DC Cir. 1995) 46 F3d 1195, 1197; cf. TENNESSEE PATTERN INSTRUCTIONS - CRIMINAL, T.P.I.-Crim 43.02 [Jury: Deliberation-Deadlocked Jury Charge ] ¶ 2 (West, 5th ed. 2000).]

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PRACTICE NOTE: The failure to explicitly instruct deadlocked jurors that both the minority and majority should reconsider each other's views is improperly coercive. (See e.g., U.S. v. Manning (1st Cir. 1996) 79 F3d 212, 222; U.S. v. Burgos (4th Cir. 1995) 55 F3d 933, 941; U.S. v. Webb (8th Cir. 1987) 816 F2d 1263, 1267; Kaluna v. Iranon (HI 1996) 952 FSupp 1426, 1435; State v. Campbell (LA 1992) 606 So2d 38, 40-41.) For example, in Burgos the court instructed the jury that:

    "...it is not easy to back away from an opinion that has earlier been expressed....Now, I’m not asking anybody -- let me make this clear, I’m not asking anybody to give up a firmly held belief. You don’t have to do that. But I do ask you to think about it." (Burgos, 55 F3d at 938; see also Epes v. Healey (NY 1996) 641 NYS2d 344 [reversible error to urge minority "to think a little bit to see why you're in the minority when other jurors who are equally intelligent as you have a different view"].)

    The Fourth Circuit held that this instruction would weigh more heavily on the minority than the majority and thus was reversible error. "[R]egardless of what other specifics are included in an Allen charge given to a deadlocked jury, a district court must incorporate a specific reminder both to jurors in the minority and those in the majority that they reconsider their positions in light of the other side's views." (Burgos, 55 F3d at 941.)

RESEARCH NOTES:

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: In People v. Wattier (CA 1996) 51 CA4th 948 [59 CR2d 483] the defendant claimed that the court improperly coerced a verdict by instructing the jurors to continue deliberations after one of the jurors disagreed with the verdict during the polling of the jury. The Court of Appeal held that the verdict was not coerced because, in part, the court had instructed the jury that "Each of you must consider the evidence for the purpose of reaching a verdict if you can do so." (Id. at 955. [Emphasis in original.].) Hence, the fact that the judge indicated to the jury that they did not have to reach a verdict was an important factor in concluding that the verdict was not coerced. (See also ABA § 15-4.4 [agreement should be reached..."if it can be done without violence to individual judgment"].)

    See also NCJIC 278.3 [Duty To Deliberate: Informing Jury As To Possibility Of A Hung Jury].

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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RATIONAL: There is a danger of an improper coerced verdict unless every juror understands that he or she should not abandon their views simply to reach a verdict.

POINTS AND AUTHORITIES: One of "the more important parts of the Allen charge" is the admonition not to surrender honest convictions because of opinions of other jurors or merely to return a verdict. (See U.S. v. Scott (6th Cir. 1977) 547 F2d 334, 337; see also Jimenez v. Myers (9th Cir. 1993) 40 F3d 976, 981; U.S. v. Strothers (DC Cir. 1996) 77 F3d 1389, 1391; U.S. v. Berroa (DC Cir. 1995) 46 F3d 1195, 1197 [failure to so instruct jury was reversible error]; ABA § 15-4.4; NCJIC 286.2.10 [Deadlock: Making Record As To Indicia Of Coercion Which Will Not Appear In The Record].)

    See also NCJIC 278.3 [Duty To Deliberate: Informing Jury As To Possibility Of A Hung Jury].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 10.2].

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].

    Do not ever change your mind just because other jurors see things differently, or just to get the case over with. As I told you before, in the end, your vote must be exactly that -- your own vote. As important as it is for you to reach unanimous agreement, it is just as important that you do so honestly and in good conscience.

[6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 9.04 [Deadlocked Jury] ¶ 5 (1991).]

    Under no circumstances may any juror compromise a consciously held individual position for the purpose of reaching a unanimous verdict.

[See People v. Sharff (NY 1975) 343 NE2d 765; cf. Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 2:40 [Charging The Jury–Deadlock Jury-Allen Charge] (West, 1999).]

    As jurors, you must discuss the case with each other and deliberate.  You should do so with a view to reaching an agreement, if you can do so without compromising individual judgment. Each of you must decide the case for yourself, but only after impartial consideration of all the evidence with your fellow jurors.  During your deliberations do not hesitate to reexamine your own views and change your opinion if you are convinced your opinion is erroneous. But do not surrender your honest conviction as to the weight or effect of the evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.

[See U.S. v. Berroa (DC Cir. 1995) 46 F3d 1195, 1197; Rodriguez v. Marshall (9th Cir. 1997) 125 F3d 739, 751; U.S. v. Scott (6th Cir. 1977) 547 F2d 334, 337; cf. TENNESSEE PATTERN INSTRUCTIONS - CRIMINAL, T.P.I.-Crim 43.02 [Jury: Deliberation-Deadlocked Jury Charge ] ¶ 2 (West, 5th ed. 2000).]

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RATIONALE: The coercive impact of a supplemental instruction in response to juror deadlock may be reduced by expressly informing the jurors that they can take all the time they need.

POINTS AND AUTHORITIES: Generally, deadlock instructions should convey the impression that it is more important to be thoughtful than it is to be quick. (See 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 9.04 [Deadlocked Jury] commentary (1991).) Hence, the judge should make it clear that the supplemental instruction was not "meant to try and rush or pressure them into reaching a verdict..." (Ibid.; see also U.S. v. Markey (6th Cir. 1982) 693 F2d 594, 597; People v. Alvine (IL 1996) 671 NE2d 713, 718 [judge told jury there was no time limit in response to jury inquiry about time limit]; State v. Stevens (ME 1975) 343 A2d 592, 593 [informing jurors that there is a time limit upon their deliberations carries such a danger of interfering with full, free, and untrammeled consideration of the evidence as to make the validity of the verdict suspect]; State v. DeVault (OR 1986) 715 P2d 1353, 1354 [defendant is entitled to have deliberations continue until enough jurors are willing to assume individual responsibility for verdict].)

CAVEAT: The jury should also understand that they do not have to reach a verdict. (See NCJIC 286.2.3 [Deadlock: Instructions Should Inform Jury That A Verdict Need Not Be Reached].)

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].

    What I have just said is not meant to rush or pressure you into agreeing on a verdict. Take as much time as you need to discuss things. There is no hurry.

[6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 9.04 [Deadlocked Jury] commentary ¶ 6 (1991); see also 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL TI 6 [Modified "Allen" Charge] (1997).]

    You may take such time during you deliberation as you feel is necessary.

[See 5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.45 [Modified "Allen" Charge] ¶ 6 (2001); HAWAII PATTERN JURY INSTRUCTIONS - CRIMINAL, HAWJIC 8.03, [Conduct Of Deliberations] para. 2 (West, 1998); PATTERN INSTRUCTIONS FOR KANSAS - CRIMINAL, PIK - Criminal 3d 68.12 [Concluding Instructions And Verdict Forms-Deadlocked Jury] ¶ 7 (Kansas Judicial Council, 3rd ed. 1999).]

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PRACTICE NOTE: "'A trial judge should refrain from placing specific time pressure on a deliberating jury and should never imply that the case warrants only desultory deliberation. Such comments risk persuading legitimate dissidents, whatever their views, that the court considers their position unreasonable.'" (People v. Anderson (CA 1990) 52 C3d 453, 469 [276 CR 356], quoting People v. Keenan (CA 1988) 46 C3d 478, 534 [250 CR 550].)

    This rule applies not just during deliberations but at any stage of the trial. Hence, the court should refrain from suggesting to the jurors prior to the commencement of deliberations, the amount of time the court thinks will be necessary to reach a verdict. (Anderson, 52 C3d at 469.)

    See also NCJIC 286.2.5 [Deadlock: Jury May Take All The Time It Needs].

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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RATIONALE: To assure that the jurors are not coerced into returning a verdict of guilt, a supplemental "Allen" instruction should include language informing the jury that doubt as to any element should be resolved in favor of the defendant.

POINTS AND AUTHORITIES: In Allen v. U.S. (1896) 164 US 492, 501-02 [17 SCt 154; 41 LEd 528] the district court gave some lengthy supplemental instructions which were paraphrased in the Supreme Court opinion and have been used as the basis for the "Allen" supplemental instruction given to the jury either prior to the commencement of deliberations or as a supplemental instruction when the jury is deadlocked. In Allen, the Supreme Court noted that these instructions were "taken literally" from instructions approved by the Massachusetts Supreme Court in Commonwealth v. Tuey (MA 1851) 62 Mass 1, 2-3. The Tuey instructions included the following additional concepts, not noted by the Supreme Court in its Allen opinion: that the burden of proof is on the government to prove every element of the charge beyond a reasonable doubt and if the jurors are left in doubt as to any element, the defendant is entitled to the benefit of that doubt and must be acquitted. (See 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 8.04 [Duty To Deliberate] commentary (1991).) Due to the crucial importance of these additional concepts, and the potentially coercive atmosphere of jury deadlock instructions, a deadlock supplemental instruction should include these additional provisions. (See U.S. v. Webb (8th Cir. 1987) 816 F2d 1263, 1267 [Allen instruction is incomplete if it omits "a statement advising the jury that the Government must prove guilt beyond a reasonable doubt and suggesting that both minority and majority should reexamine their position"]; see also Potter v. U.S. (8th Cir. 1982) 691 F2d 1275, 1280.)

    See also NCJIC 286.2.8 [Deadlock: Supplemental Charge Should Remind Jurors Of Burden Of Proof].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 10.2].

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].

    I remind you that the burden is on the prosecution to prove every element of the charge beyond a reasonable doubt. If you have a reasonable doubt as to any element, the defendant is entitled to the benefit of that doubt and must be acquitted.

[Source: NCJIC.]

    Listen carefully to what the other jurors have to say, and then decide for yourself if the government has proved the defendant guilty beyond a reasonable doubt.

[6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 8.04 [Duty to Deliberate] ¶ 4 (1991).]

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RATIONALE: A deadlock instruction should remind the jury of the prosecution's burden of proof to avoid improper coercion.

POINTS AND AUTHORITIES: "A strong argument can be made that a supplemental charge should explicitly remind the jurors that the government bears the burden of proof in a criminal case, and that if the government has failed to prove guilt beyond a reasonable doubt, then the defendant is entitled to a not guilty verdict. These concepts were included in the seminal version of the Allen charge. [Citations.]" (6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 9.04 [Deadlocked Jury] commentary (1991); see also U.S. v. Lewis (6th Cir. 1981) 651 F2d 1163, 1165 [given the weakness of the evidence against the defendant and the jury’s difficulty in weighing the evidence, it was improper not to reinstruct on the government’s burden of proving guilt beyond a reasonable doubt].)

    See also NCJIC 286.2.7 [Deadlock: Supplemental Instruction Should Inform Jurors That Doubt As To Any Element Should Be Resolved In Favor Of Defendant].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 10.2].

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].

    I remind you that the burden is on the prosecution to prove every element of the charge beyond a reasonable doubt.

[Source: NCJIC.]

    Remember at all times that no juror is expected to yield a conscientious conviction he or she may have as to the weight or effect of the evidence. But remember also that, after full deliberation and consideration of the evidence in the case, it is your duty to agree upon a verdict if you can do so without surrendering your conscientious conviction. You must also remember that if the evidence in the case fails to establish guilt beyond a reasonable doubt, the accused should have your unanimous verdict of Not Guilty.

[5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.45 [Modified "Allen" Charge] ¶ 5 (2001).]

    You must also remember that if the evidence in the case fails to establish guilt beyond a reasonable doubt the defendant should have your unanimous verdict of not guilty.

[11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL TI 7  [Modified "Allen" Charge] (1997); cf. O’Malley Grenig, & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS § 20.08 [Supplemental Instructions - When Jurors Fail To Agree Seasonably] ¶¶ 10, 11, 12 (West, 5th ed. 2000).]

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RATIONALE: It is improperly coercive for the instructions and/or statements from the court to imply that the jury must reach a verdict. Hence, the jury should be affirmatively instructed that it will not be forced or required to reach a verdict.

POINTS AND AUTHORITIES: A trial judge should avoid instructions which exert a coercive influence on the jurors to reach a certain verdict or any verdict. (See ABA Standards Relating to the Administration of Criminal Justice, Trial by Jury, § 5.4; Function of the Trial Judge, § 5.12). "An attempt to drive the members of a jury into an agreement is beyond the power of the court, and an obvious effort to effect such a result demands a new trial." (People v. Sheldon (NY 1898) 50 NE 840, 845; see also Goodwin v. State (FL 1998) 717 So2d 561, 562 [failure to inform jurors that it was legally permissible for them to disagree, after they had indicated to court that they were deadlocked, was reversible error]; People v. Faber (NY 1910) 92 NE 674, 675-676.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 10.2].

RESEARCH NOTES:

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].

    You are not required to agree on a verdict.  Thus, you will not be forced to deliberate until you do agree.

[See WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 520 [Supplemental Instruction On Agreement] ¶ 2 (University of Wisconsin Law School, 2000).]

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PRACTICE NOTE: The ABA standards (Section 15-4.4) provide as follows:

"(a)  Before the jury retires for deliberation, the court may give an instruction which informs the jury:

(i)  that in order to return a verdict, each juror must agree thereto;

(ii)  that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;

(iii)  that each juror must decide the case for himself or herself but only after an impartial consideration of the evidence with the other jurors;

(iv)  that in the course of deliberations, a juror should not hesitate to reexamine his or her own views and change an opinion if the juror is convinced it is erroneous; and

(v)  that no juror should surrender his or her honest conviction as to the weight or effect of the evidence solely because of the opinion of the other jurors, or for the mere purpose of returning a verdict.

(b)  If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in paragraph (a). The court shall not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.

(c)  The jury may be discharged without having agreed upon a verdict if it appears that there is no reasonable probability of agreement."

    Additionally, it has been recognized that the appropriate elements of a proper "Allen" charge in response to juror deadlock include the following:

    1.     Members of both the majority and minority should re-examine their positions;

    2.     The jury has a right to not agree;

    3.     The prosecution has burden of proving defendant guilty beyond a reasonable doubt. (U.S. v. Manning (1st Cir. 1996) 79 F3d 212, 222.)

    In Potter v. United States (8th Cir.1982) 691 F2d 1275, 1278, the court indicated that an "Allen"-type instruction should contain language reflecting the following five propositions:

    1.      a recognition that a majority of jurors may favor acquittal,

    2.      that the government has the burden of proof beyond a reasonable doubt, that both the majority and minority should re-examine their views,

    3.      that the jurors should not abandon conscientiously held views,

    4.      and that the jury was free to deliberate as long as necessary.

(See also U.S. v. Robinson (8th Cir. 1992) 953 F2d 433, 436; United States v. Webb (8th Cir. 1987) 816 F2d 1263, 1267.)

RESEARCH NOTES:

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].