Jury Instructions - Allen Charge

United States v. Haynes, 729 F.3d 178 (2d Cir. 2013)

The Allen charge in this case encouraged the jurors to exchange views with one another, consider each other's views, and work diligently to reach a verdict, but did not contain the admonition not to give up conscientiously held beliefs. The charge did more than simply advise jurors to continue their deliberations. The charge did not suggest that failing to reach a unanimous verdict was permissible. To the contrary, the Court stated that it “believe[d]” that the jury would “arrive at a just verdict” on Monday. The charge was improper and, along with other errors, required setting aside the verdict. A reasonable juror could view this instruction as lending the Court’s authority to the incorrect and coercive proposition that the only just result was a verdict. However, a verdict is just only it if represents the conscientiously held beliefs of all jurors.

United States v. Blitch, 622 F.3d 658 (7th Cir. 2010)

The jury requested that they be excused at 3:30 which the judge agreed to do. At about 3:15, the jury announced that it had reached a verdict, but when the jury was polled, one juror said that the verdict was not her verdict. Without any inquiry about the need to be excused at 3:30, the judge instructed the jury to return and continue deliberating. In the context of these developments, this instruction as improperly coercive, because there was no indication from the judge that the jury would be able to adjourn at 3:30, which might have resulted in a verdict that was coerced by the concern that the jury would not be excused anytime in the near future.

Hooks v. Workman, 606 F.3d 715 (10th Cir. 2010)

When the jury informed the court that its penalty phase deliberations were deadlocked, the court declined the defendant’s request to instruct the jury that if they could not reach a unanimous verdict, a sentence of life without parole would be imposed. Instead, the judge repeatedly told the jury to continue deliberating and then advised the jury that they would spend a night in the hotel and continue deliberations the next day. The court also gave the jury an Allen charge that was generally applicable to the guilt-innocence phase of a trial. In this context, the Allen charge was improperly coercive.

Smith v. Curry, 580 F.3d 1071 (9th Cir. 2009)

After receiving a note that the jury was deadlocked, the judge read a model Allen charge. That instruction didn’t accomplish a unanimous verdict, so the judge provided his “comment” on the evidence that suggested that the jury should focus on the consistencies and inconsistencies in the evidence relating to a particular issue (which of the conspirators committed the sexual assault on the victim). That comment (which strongly favored the prosecution) was unmistakably directed at the hold-out juror. Using the Allen charge jurisprudence as as guide, the Ninth Circuit held that this amounted to an impermissibly coercive instruction that tainted the verdict. Though the Constitution does not prohibit judges from commenting on the evidence, in this case, the comment amounted to a denial of the right to a fair an impartial jury deciding the case.

United States v. Williams, 547 F.3d 1187 (9th Cir. 2008)

The trial court’s Allen instruction was improper, because the judge was made aware that one juror, a holdout, was feeling pressured by the other jurors to convict the defendants. The coercive feature of the instruction is not so much the content of the instruction, but the fact that the judge knows there is one holdout for acquittal and the juror knows that the judge knows that she is the one holdout for acquittal. Thus, the juror would reasonably believe that the instruction encouraging a unanimous verdict would be directed primarily at her and would encourage her to relent.

United States v. Jones, 504 F.3d 1218 (11th Cir. 2007)

Shortly after deliberations began, the jury sent in a note that they were deadlocked and the judge sent them home for the evening and directed them to return in the morning. When they returned, one of the jurors was absent and an alternate was installed. The judge announced, “There is no need of sending the court any notes that the jury cannot agree, because you are going to stay here for a long time.” Shortly thereafter the jury returned a guilty verdict. The trial court’s instruction was improper and a new trial was required. At no time did the court emphasize that in reaching a verdict, no juror should abandon an honestly held belief.

United States v. Zabriskie, 415 F.3d 1139 (10th Cir. 2005)

An Allen charge should not be issued to a single juror. Though an individual juror may be questioned in certain circumstances about an irregularity, it is not proper to encourage an individual juror to reach a verdict. In this case, the jury sent out a note complaining about a single hold-out juror who was frustrating the attempt to reach a verdict. Questioning that juror alone was improper.

United States v. Yarborough, 400 F.3d 17 (D.C. Cir. 2005)

The trial court’s Allen charge that invited questions to the court to help understand the evidence or the jury instructions was improper.

United States v. Clinton, 338 F.3d 483 (6th Cir. 2003)

The suggestion in the Allen charge that if “many” people are in favor of acquittal, the others should re-examine their views (thus being overly coercive if there was only one person in favor of acquittal) was discouraged, but not cause for reversal of the conviction. The court also questioned the wisdom of referring to the cost of a retrial and recommended that it be deleted from future instructions.

United States v. McElhiney, 275 F.3d 928 (10th Cir. 2001)

In a lengthy decision that reviews the history of Allen charges and the various proper and improper components of Allen charges, the Tenth Circuit condemned the instruction that was given in this case. First, the court noted that one way to avoid the coercive impact of an Allen charge is to instruct the jury on the duty to deliberate during the initial instruction, rather than when a deadlock is envisioned. Second, the court criticized the lower court for omitting the required cautionary language (no juror should surrender an honestly held view; burden of proof remains with the government to prove guilt beyond a reasonable doubt). Third, the court erred in its extemporaneous embellishments on the instruction, including a reminder to the jury about the cost of the security – to deal with danger – that was used during the trial, and the cost in time and expense of the trial itself. The court devotes seventeen pages of its decision to this lengthy analysis of the Allen jurisprudence.

United States v. Paniagua-Ramos, 135 F.3d 193 (1st Cir. 1998)

The trial court's Allen charge was defective and required a new trial. The trial court failed to explain to the jury that they had the right to disagree.

Tucker v. Catoe, 221 F.3d 600 (4th Cir. 2000)

In evaluating an Allen charge for coerciveness, the appellate court considers the charge in its entirety and in context; suggestions or threats that the jury would be kept until unanimity is reached; suggestions or commands that the jury must agree; indications that the trial court knew the numerical division of the jury; indications that the charge was directed at the minority; the length of deliberations following the charge; the total length of deliberations; whether the jury requested additional instruction; and other indications of coerciveness. In this death penalty case, the trial court was informed that the jury was deadlocked 11 – 1 for death. The instruction, as a whole, moreover, applauded the collective reasoning of the jury and did not stress the importance of the individual determination. Though the judge did advise the jury that no juror is expected to give up an opinion, the charge was too coercive. The Fourth Circuit also pointed out that in the death penalty context, because a re-trial was not going to occur, there was no concern with the cost of not reaching a verdict (i.e., a life sentence would be imposed if the jury could not unanimously agree on the death penalty).

United States v. Manning, 79 F.3d 212 (1st Cir. 1996)

The jury sent a note to the judge explaining that they were deadlocked and that it was apparent that they would not change their minds on one count. The note asked whether it was necessary to continue deliberating until a verdict was reached. The judge responded simply, “Would reading any portion of the testimony assist you in reaching a decision?” This response contained none of the appropriate Allen charge ingredients: (1) members of both the majority and the minority should reexamine their positions; (2) a jury has the right to fail to agree; and (3) the burden of proving guilt beyond a reasonable doubt remains with the government. The conviction on this count was reversed.

United States v. Burgos, 55 F.3d 933 (4th Cir. 1995)

When coaxing a jury with an Allen instruction, the court should encourage the minority to consider the views of the majority, but should also encourage the majority to consider the minority’s position. This is mandatory and the failure to do so is reversible error.

United States v. Robinson, 953 F.2d 433 (8th Cir. 1992)

The trial court’s Allen charge suggested that it was unpatriotic to “hang” and repeatedly implied that the minority should re-evaluate its view. This was reversible error.

United States v. Webb, 816 F.2d 1263 (8th Cir. 1987)

The giving of an incomplete Allen charge after having determined the numerical division of the jury, was error. Furthermore, the Allen charge did not advise the jury once again that the government had the burden to prove guilt beyond a reasonable doubt and the charge also failed to instruct both the minority and majority to re-examine their position.

Jiminez v. Myers, 40 F.3d 976 (9th Cir. 1993)

Over the course of several days of deliberations, the trial court repeatedly asked what the division was (without asking which side was winning) and probed whether there had been any “movement.” The judge stated that “movement” was what was important to him. This amounted to a de facto Allen charge, urging the jury to work towards unanimity, without cautioning the holdout juror not to give up a strongly held belief. This was reversible error.

United States v. Strothers, 77 F.3d 1389 (D.C.Cir. 1996)

In the D.C. Circuit, when giving an Allen charge to the jury, it is reversible error to fail to instruct the jury that no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict.

United States v. Berroa, 46 F.3d 1195 (D.C.Cir. 1995)

The district court’s Allen charge did not comply with the requirements set forth by the D.C. Circuit 25 years ago in United States v. Thomas, 449 F.2d 1177 (D.C.Cir. 1971). Specifically, the charge informed the jury that there was no reason to believe that a better jury, or clearer evidence would be presented in a new trial. These comments have been disapproved by the D.C. Circuit.