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Monday, June 13, 2005

All Clear! The Allen Charge May Be On the Way

Let's assume the Jackson jury doesn't reach a verdict in the next few days.  (The NYT speculates they are having trouble with the instructions; I think the case is just plain hard.)  If they eventually hang, there will be tremendous pressure on the Judge to issue an Allen (or "Dynamite") charge to the jury.  In most jurisdictions (I can't find the model in California), the charge will go something like this:

"This is an important case. The trial has been expensive in time, effort, money and emotional strain to both the defense and the prosecution. If you should fail to agree upon a verdict, the case will be left open and may have to be tried again. Obviously, another trial would only serve to increase the cost to both sides, and there is no reason to believe that the case can be tried again by either side any better or more exhaustively than it has been tried before you.

Any future jury must be selected in the same manner and from the same source as you were chosen, and there is no reason to believe that the case could ever be submitted to twelve men and women more conscientious, more impartial, or more competent to decide it, or that more or clearer evidence could be produced.

If a substantial majority of your number are in favor of a conviction, those of you who disagree should reconsider whether your doubt is a reasonable one since it appears to make no effective impression upon the minds of the others. On the other hand, if a majority or even a lesser number of you are in favor of an acquittal, the rest of you should ask yourselves again, and most thoughtfully, whether you should accept the weight and sufficiency of evidence which fails to convince your fellow jurors beyond a reasonable doubt.

Remember at all times that no juror is expected to give up an honest belief he or she may have as to the weight or effect of the evidence; but, 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.


You may be as leisurely in your deliberations as the occasion may require and should take all the time which you may feel is necessary."

This instruction has hoary roots (Allen v. United States, 164 U. S. 492 (1896), but it still constitutional, although increasingly disapproved.  (See 74 N.C. L. Rev. 2036 for an interesting note).  Why?  Because of its incredible coercive power.  The instruction uses shame/guilt (don't waste taxpayer money)  pride (you folks are our last, best hope!); social pressure (listen to your fellows); and honor (you owe your country a verdict) in equal measure.  My sense of the caselaw is that a judge will be reversed for giving the charge more than once, and that it almost always produces a good issue on appeal. Not that it would do Jackson any good were this to happen and he (hypothetically) convicted.

It would be interesting to do a study on  whether Allen charges: (a) break hung juries more than doing nothing; and (b) whether defendants lose at higher rates than they do in non-hung cases.  (A study here suggests that Allen-charges are in retreat in California.)  Regardless of the outcome of that study, I wonder: assuming that hung juries are rare, and usually focus on evidentiary issues, what is so wrong about them?  Aren't they a signal that the jury took its job (which is the search for truth, not the merely production of verdict-events, notwithstanding what Charley Nesson had to say about it) seriously?  Obviously, if all we wanted out of a trial was a verdict, there are much easier ways to go about it.  Hung juries cover those that produce outcomes with glory and legitimacy.

I started thinking about this topic, incidentally, because the City of Philadelphia has finally caught up to my changing registration, and has called me to show up for criminal jury duty tomorrow.  Chances of me getting picked?  Zero.  But I can dream.

Posted by Dave Hoffman on June 13, 2005 at 10:12 AM in Criminal Law | Permalink


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» Why did the judge declare a mistrial so quickly? II from PointOfLaw Forum
I'm not as inclined as Michael to find fault with Judge Fallon's decision to declare a mistrial. The jury had deliberated for eighteen hours over three different days, and Fallon had issued an Allen charge to the jury (over the... [Read More]

Tracked on Dec 13, 2005 8:58:20 AM


Note: the Jackson jury has announced it has a verdict, so I guess we'll have to develop a constitutional challenge to Allen at a later date.

On the jury selection front, I was pulled into a 60 person pool for a murder trial. I waited six hours (no lunch break for the public spirited); the judge asked me a handful of questions, and I was dismissed. I'm not sure what it was -- I didn't even tell them I've written about jury nullification!

Posted by: Dave Hoffman | Jun 13, 2005 4:02:00 PM

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