Earlier this year, the 9th Circuit Court of Appeals in U.S. v. Evanston examined the issues that arise when attorneys are allowed to re-argue their case to resolve a jury deadlock. In Evanston, the defendant was charged with assaulting his live-in girlfriend. Since the assault occurred on a Indian reservation, it was brought in federal court.
After five hours of deliberation over two days, the jury advised that it could not reach a verdict. The district court then gave the Ninth Circuit Model Jury Instruction 7.7--commonly referred to as an Allen charge, deadlock instruction, or "dynamite charge" and asked the jury to continue to deliberate.
After further deliberations, the jury was still deadlocked so the trial judge suggested that the jurors be called in to determine what issues they are stuck on and allow counsel 10 additional minutes of argument. Despite objections by the defense, the trial judge went forward and determined that the jury was stuck on two issues: (1) witness credibility; and (2) the cause of the victim's injuries. The judge then allowed each side time to address both concerns. At the end of the supplemental arguments, the jurors returned to deliberations and after two hours found the defendant guilty.
In overturning the conviction, the three judge panel of the 9th Circuit determined that [t]he supplemental arguments here intruded upon the jury's fact-finding role in two ways and through two conduits: (1) the judge's questionning as to the reasons for the deadlock required that the jury divulge the state of its unfinished deliberations, there violating the jury's deliberative secrecy ... and (2) the parties supplemental arguments, coupled with the judge's insistence on continuing after a second deadlock injected the court and the attorneys into the jury's deliberative process, thereby raising the specter of juror coercion.
The panel went on to state that they did not foreclose the possibility that supplemental argument treating factual matters could ever be used. In this case, however, the panel determined that allowing supplemental arguments was indeed an abuse of the trial court's discretion because the practice has not been adopted by the federal court (to date only AZ, CA, and ND have adopted the practice) and the trial judge had alternatives to using supplemental arguments such as rereading the jury instructions or reading back witness testimony.
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