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286.3 Deadlock: Improper Language

    286.3.1 Deadlock: Improper To Instruct Jury That The Case Must Be Decided Or Disposed Of At Some Time By Some Jury
    286.3.2 Deadlock: Instruction Should Not Stress The Expense and Difficulties Involved In Retrial
    286.3.3 Deadlock: Improper To State That The Case Must Be Decided At Some Time By Some Jury
    286.3.4 Improper To Inform Jury That Juror Deadlock Will Delay The Trial Of Other Cases And Add To The Court's Backlog
    286.3.5 Deadlock Instruction Should Not Inform Jury That It Is Their Duty To "Seek The Truth"
    286.3.6 Deadlock: Improper To Inform Jury That There Is No Reason To Believe A Better Jury Or Clearer Evidence Would Occur At A New Trial
    286.3.7 Deadlock: Improper To Refer To Minority Jurors As "Holdouts"

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PRACTICE NOTE: It is "coercive" and "misleading" to inform a deadlocked jury that the case must be decided at some time by some jury. (See e.g., U.S. v. Harris (6th Cir. 1968) 391 F2d 348, 355.) Such language has been strongly condemned on the ground that it is coercive and misleading because it precludes the right of a defendant to rely on the possibility of continuing juror disagreement. (See Harris, 391 F2d at 355; see also 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 9.04 [Deadlocked Jury] commentary (1991).)

    It has been suggested that language stating a case must be "disposed" of is not coercive because it "merely restates the obvious proposition that all cases must come to an end at some point, whether by verdict or otherwise." (U.S. v. LaRiche (6th Cir. 1977) 549 F2d 1088, 1092.) However, such a distinction is not likely to be understood by the jurors. "While this distinction may be clear to lawyers, lay jurors are unlikely to grasp or understand it without further explanation. For this reason, such language should be omitted from any instruction on the subject of juror deliberations." (See 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 9.04 [Deadlocked Jury] commentary (1991).)

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: Statements regarding the expense, burden and difficulties of conducting a trial are coercive and should not be included in any supplemental instructions given at deadlock. (See e.g., U.S. v. Harris (6th Cir. 1968) 391 F2d 348, 354; see also People v. Johnson (NY 1993) 598 NYS2d 39, 40.)

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 286.3.1 [Deadlock: Improper To Instruct Jury That The Case Must Be Decided Or Disposed Of At Some Time By Some 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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PRACTICE NOTE: It is "impermissibly coercive to inform a deadlocked jury that juror intransigence will delay the trial of other cases and add to the court's backlog." (See e.g., U.S. v. Scott (6th Cir. 1977) 547 F2d 334, 337; see also 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 8.04 [Duty To Deliberate] commentary (1991).)

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: Instructing the jury that it is their duty to "seek the truth" "incorrectly assumes that the ‘truth’ is somewhere in the evidence presented, overlooks the possibility that the proofs do not satisfactorily establish the truth one way or the other, and thereby shifts attention away from the government’s obligation to convince the jury beyond a reasonable doubt." (6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 8.04 [Duty To Deliberate] commentary (1991); but see U.S. v. LaRiche (6th Cir. 1977) 549 F2d 1088, 1093 [rejecting defendant’s argument that such language distorts the jury’s function and dilutes the government’s burden of proof].) "[T]he question in a criminal case is not whether the defendant committed the acts of which he is accused. The question is whether the Government has carried its burden to prove its allegations while respecting the defendant's individual rights." (Mitchell v. U.S. (1999) 526 US 314, 330 [119 SCt 1307; 143 LEd2d 424].)

    Accordingly, language telling the jury that their duty is to "seek the truth" should not be included in either the predeliberation instructions given to the jury or any instruction given to the jury in response to juror deadlock.

    See also NCJIC 278.4 [Jury's Duty Is To Decide If The Prosecution Has Met Its Burden, Not To Find Or Seek "The Truth"].

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: See U.S. v. Berroa (DC Cir. 1995) 46 F3d 1195, 1196.

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: Referring to minority jurors as "holdouts" improperly implies that the majority view is the correct one. Thus, such terminology is improperly coercive.

    See NCJIC 286.1.7 [Judge's Post-Deadlock Comment On The Evidence May Coerce Verdict].

    See NCJIC 286.1.12 [Inquiry Into Numerical Division Of Jury May Coerce Verdict].

    See NCJIC 286.2.1 [Deadlock: Jurors Must Be Reminded Not To Surrender Conscientiously Held Beliefs].

    See NCJIC 286.2.2 [Deadlock: Both Minority And Majority Must Be Encouraged To Consider The Other's View].

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].