As some may know,the judge, pursuant to Allen v. United States, 164 U.S. 492 (1896), may nudge a divided or deadlocked jury along by giving it the so-called Allen Charge, which reads as follows:
"Members of the Jury:
I'm going to ask that you continue your deliberations in an effort to reach agreement upon a verdict and dispose of this case; and I would like for you to consider as you do so.
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 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.
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.
I will ask now that you retire once again and continue your deliberations with these additional comments in mind to be applied, of course, in conjunction with all of the other instructions I have previously given to you."
The goal of the Allen charge is get jurors to re-consider their opinions and attempt to reach a consensus view. However, whenever the judge goes beyond the approved script she runs the risk of being accused of attempting to interfere with jury deliberations or influence the jurors. The two recent Court of Appeals cases listed below demonstrate the right and wrong way to give an Allen Charge.
U.S. 8th Circuit Court of Appeals, September 08, 2009 US v. Ybarra, No. 08-3137 Court of Appeals finds that the trial judge's Allen charge was not coercive. Defendant's conviction for a conspiracy to distribute drugs is affirmed. Read more...
U.S. 9th Circuit Court of Appeals, September 08, 2009 Smith v. Curry, No. 07-16875 Court of Appeals finds that the trial judge crossed the boundary from appropriate encouragement to deliberate in order to reach a unanimous verdict and went into the forbidden territory of coercing a particular verdict on the basis of the judge's selective view of the evidence. Defendant's petition granted. Read more...