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A hung jury can be one of the most frustrating experiences in the practice of criminal law. For prosecutors, it usually means that victims will be subjected to a retrial. For defendants, their fates remain in the air as prosecutors get a second bite at the apple. And, for the court, there is the added time and expense of retrying the case. Given these frustrations, it is understandable why courts are inclined to give jurors at least a gentle push to verdict whenever possible. This push usually comes in the form of an “ Allen charge.” ‘Allen’ is the dynamite that breaks deadlocks An Allen charge is the popular name for a jury instruction that, in effect, encourages a jury to reach a unanimous verdict so as to avoid a mistrial. Its name is derived from Allen v. United States, 164 U.S. 492 (1896), the first case in which the Supreme Court approved of a supplemental instruction to a deadlocked jury encouraging it to reach a verdict. In substance, that instruction warned that it is often impossible to decide a case with absolute certainty. Thus, while the verdict must be the verdict of each individual juror, jurors should critically examine their opinions and give due deference to the opinions of each other. The court warned that it was the jurors’ duty to decide the case if they could conscientiously do so and that they should listen, with a disposition of being convinced, to the arguments of each other. Finally, the court stated that, if a much larger number were for conviction, dissenting jurors should be willing to reconsider whether their doubts are reasonable, or, if the majority are for acquittal, minority jurors ought to ask themselves whether they unreasonably doubt the correctness of the majority’s judgment. Allen, 164 U.S. at 501. These days, the Allen charge is commonly referred to as a “dynamite” charge. See also Untied States v. Bailey, 468 F.2d 652, 666 (5th Cir. 1972) (also referring to the charge as the “third-degree,” “shotgun” or “nitroglycerin” instruction). Oftentimes, upon hearing the instruction, a jury breaks through its deadlock and reaches a verdict. However, there are dangers with the Allen charge. It has a potentially coercive element that may push a juror toward conviction because that juror feels the pressure of the court to reach a verdict. Such a push would violate a defendant’s due process rights and the right to an impartial jury trial and unanimous verdict. See generally United States v. McElhiney, 275 F.3d 928, 936-938 (10th Cir. 2001). Because of this danger, courts have been re-examining how and when the Allen instruction should be given. In fact, some state courts have even been willing to ban the instruction altogether. See People v. Gainer, 19 Cal. 3d 835, 844, 847 n. 8, 139 Cal. Rptr. 861, 566 P.2d 997 (1977). Most courts, however, continue to permit an Allen charge but are cautious in its application. They look to four key factors to determine if the charge was proper: (1) when the instruction was given; (2) the wording of the instruction; (3) the length of deliberations before the instruction was given; and (4) the complexity of the case. See, e.g., Papantinas v. Delaware, 820 A.2d 372 (Del. 2003). Assuming the instruction is properly worded, and the court doesn’t jump the gun in giving the instruction or coercing an immediate verdict, use of an Allen charge is permitted. For example, in the recent case of United States v. Wills, 2003 U.S. App. Lexis 20420 (4th Cir. 2003), the court examined whether it was proper to give an Allen charge when jurors indicated that they had reached an impasse on a count of the indictment. The appellate court upheld the Allen charge given because it embodied key protections against undue coercion of the jury. First, the instruction cautioned both the minority to reconsider the majority’s views and the majority to reconsider the minority’s views. Second, it emphasized that jurors should not change their opinions solely to reach a unanimous decision. Many jurisdictions have developed model jury instructions to be followed when the court faces the prospect of a deadlocked jury. While these model instructions are preferred, their precise language is not absolutely required. For example, in United States v. Clinton, 338 F.3d 483 (6th Cir. 2003), the defendant complained of a modified Allen charge used in his bank robbery retrial. In his first trial, the court had used the 6th Circuit’s pattern jury Allen instruction and the jury was unable to reach a verdict. However, in the second trial, the court delivered a “modified” Allen charge. Less than an hour later, the jury returned guilty verdicts as to all counts against the defendant. The appellate court rejected Clinton’s challenge to the modified Allen charge. Although most of the instruction had been modeled after the circuit’s pattern jury instruction, the trial court had modified it to respond directly to a question raised by a juror. The modified instruction informed the jurors that each count of the indictment must receive a separate verdict and that an inability to reach judgment on a particular count does not affect the jury’s obligation to attempt to reach a unanimous verdict on all of the other counts. The instruction also referred to the expenses of a trial, suggesting that a retrial would be a costly endeavor. The appellate court held that while the district court’s failure to use the pattern instruction was “risky,” it did not amount to reversible error. Courts are allowed some latitude and discretion in their wording of Allen charges. Moreover, not every response to a jury’s inquiry, even when jurors indicate they are having trouble reaching a verdict, constitutes an Allen instruction. In United States v. Figueroa-Encarnacion, 343 F.3d 23 (1st Cir. 2003), the trial lasted 12 days. After only four hours of deliberations, the jury sent a note to the court at 8:05 p.m. on a Friday night advising the judge that “up to this moment, [it had] not been able to reach an agreement.” Furthermore, they stated “[w]e understand that even if we stay deliberating for more time we will not be able to reach a verdict.” The judge felt it was too early to give an Allen charge. Instead, the court instructed the jury that it was premature to reach the conclusion that there was a deadlocked jury. It told the jurors that they should go home and relax, and return the next day to continue their deliberations. The appellate court found that such an instruction does not constitute an Allen charge. It was not coercive; it was merely an effort to keep deliberations on track. Just how much data should be shared with the jury? One of the more difficult issues that arises when courts consider giving an Allen charge is the question of how much information regarding the jury’s deliberations should be shared with the parties. This issue arose recently in United States v. Henry, 325 F.3d 93 (2d Cir. 2003). In that case, after two days of deliberations, jurors sent a note to the judge stating that they had not been able to reach a unanimous verdict on one of the counts. The note contained no requests for additional explanation of any issues. However, in its note, the jury revealed the numerical division among the jurors regarding the count. It asked, “Does 3 undecided, 9 guilty indicate an automatic not guilty?” The jurors asked whether they should continue to deliberate. When the court met with the parties to discuss how it should respond to the note, it read an edited version that did not refer to the numerical division. The court did not tell the parties it had redacted the note. It also did not give the parties an opportunity to object to the proposed wording for the court’s instruction. After the jury was instructed, the defense counsel objected. A few hours later, the jury convicted the defendant. The general rule is that the parties should be informed of any message from the jury and be given an opportunity to be heard before the judge responds to it. Fed. R. Crim. P. 43. This rule ensures that the parties can provide meaningful input as to how the court responds to jurors’ notes. For example, if the defense learns that a jury is split heavily in favor of the prosecution, it is likely to argue against the Allen charge. However, it is for this precise reason that courts are reluctant to share the split on a jury. They want the decision about how to respond to jurors’ inquiries to be based on an impartial deliberative process, not an effort to use supplemental instructions to coerce the jury. Accordingly, courts tend to hold that unless the defendant can show how he was prejudiced by the court’s failure to share the full content of a juror’s note with the parties, the court’s decision is not reversible error. High court hands off when it comes to ‘Allen’ Though Allen charges are risky business, the Supreme Court has recently signaled that it is going to take a hands-off approach. In Early v. Packer, 537 U.S. 3 (2002), the court reversed the 9th Circuit after it granted a petition for writ of habeas corpus to a defendant who claimed that the state court had coerced a conviction with its supplemental instructions. The Supreme Court urged federal courts to give due deference to state court’s review of challenges to Allen charges. Thus, the dynamite charge appears to be alive and well in the courts. There are limits on its wording and use. For example, a successive Allen charge should be given only as an extraordinary measure. See United States v. Keene, 287 F.3d 229, 235 (1st Cir. 2002). There is also no guarantee that it will work. Sometimes jurors, like those in the recent trial of Frank Quattrone, formerly of Credit Suisse First Boston, become so entrenched in their views that an Allen charge has little or no effect. Nonetheless, courts are likely to continue to use it, especially if they think that a little push can avoid a retrial. Laurie L. Levenson is a professor of law and a William M. Rains Fellow, and director for the Center for Ethical Advocacy, at Loyola Law School, Los Angeles.

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