EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, November 27, 2014

The Allen Charge or: Why You Don't Want Your Trial to End Just Before the Holidays

An Allen charge, derived from the Supreme Court's opinion in Allen v. United States, 164 U.S. 492 (1896), is an instruction given by a court to a deadlocked jury to encourage it to continue deliberating until it reachesa verdict. Also referred to as a dynamite charge, a nitroglycerine charge, a shotgun charge, and a third-degree instruction, an Allen charge has been banned by some states, which consider the charge to be unduly coercive. Should the Allen charge also be banned when a major holiday is fast approaching? Should the charge be banned the day before a major holiday?

This was from a post I did on Christmas day two years ago, and it dealt with a case in which previously deadlocked jurors reached a verdict just after an Allen charge and just before that holiday. Today's post deals with a similar verdict just after three Allen charges and just before Thanksgiving...and a nasty storm.

In Slack v. County of Suffolk, 2014 WL 4700214 (E.D.N.Y. 2014), an arrestee brought a Section 1983 action against a county and a county police officer in his official capacity asserting federal claims of false arrest, malicious prosecution and abuse of process. On Monday, November 25, 2013, the jury began its deliberations. The next day, Tuesday, November 26th, the jury sent a note to the judge at 12:15 P.M. stating, "We are deadlocked 8 to one on number 1 (False Arrest Charge). Juror says he will never budge. Please advise." At this point, without objection, the judge gave the jurors an Allen charge, which stated, inter alia,

In the course of your deliberations, you should not hesitate to reexamine your own views with candor and frankness and change your own opinion if convinced that it's erroneous. I can't emphasize too strongly that each of you should give attention to the views of the others, respect them, and listen to each other's arguments with a disposition to keep your own views under your continuing review. Further consideration may indicate that a change in original attitude is fully justified upon the law and facts....

Later, at 2:15 P.M., the jury sent out a note stating "juror number 7...dismiss number 7." The judge met with Juror #7 and asked why he wanted to dismiss; the jurors responded that this would be revealing jury deliberations. The judge sent Juror #7 back to the jury and “suggest[ed] [he] do the best that [he] [could].” Thereafter, at about 3:20 P.M., the jury sent out a note advising the Court as follows: "Jury is still hung 8–1 on charges 1 and 2. Juror will not budge." As a result, the judge

presented the parties with the following three options: (1) that the Court declare a mistrial and discharge the jury; (2) that the jury be instructed to cease their deliberating for the day and return the following morning to resume deliberations; or (3) that the jury continue deliberations for the remainder of the day.

The defense asked for a mistrial, but the judge opted to give the jurors a second Allen charge, dismiss them for the day, and ask them to reconvene the next morning despite an inclement weather forecast.

The next morning, the jurors deliberated for another hour before sending a note to the judge, saying "Jury is deadlocked. All nine members feel this will not change." The defense again asked for a mistrial while the plaintiff asked for a third Allen charge. The judge agreed with the plaintiff, said he would allow deliberations to continue until lunchtime, and gave a third Allen charge:

The note says jury is deadlocked. All nine members feel this will not change. What I'm going to [do] is give you one more opportunity to reach an agreement. The trial has been a fairly long one. As I told you if we have to try the case over again, there will be another jury similar to you. They will hear probably the same evidence, a lot of effort has been put into it, but of course, you keep your conscientious thoughts. That doesn't mean that you don't have to keep your conscientious findings and decisions. But since we've already ordered lunch, we're going to give you lunch and then we'll see what happens.

At 12:30, jurors got lunch, and the defense again moved for a mistrial because a verdict had not been reached. The judge denied the motion. At 1:15 P.M., the jurors returned a verdict finding the defendants liable for false arrest.

The defendants later appealed, claiming, inter alia, that "the verdict reached was the result of undue pressure and resulted in a miscarriage of justice[.]" Specifically, they 

base[d] this contention on the following factors: (1) the jury sent out a series of notes indicating it was deadlocked; (2) a specific, identified juror asked to be excused; (3) the Court was advised on several occasions that the jury was divided eight to one; (4) the Court gave not only an Allen charge but subsequent paraphrased Allen charges; (5) the unfavorable weather conditions on November 27, 2013; and (6) the fact that November 27, 2013 was the day before the Thanksgiving holiday.

The Eastern District of New York disagreed, concluding "that the Allen charge and subsequent paraphrased Allen charges were neither coercive nor placed improper pressure on any juror." Indeed, the Allen charges "were 'helpful' since they 'only expresse[d] encouragement to the jurors to reach a verdict, if possible, to avoid the expense and delay of a new trial' and always advised the jurors not to abandon their conscientious convictions." The court then concluded by noting that

As a final matter, the Defendants speculate that the verdict was reached under pressure because the final day of deliberations, November 27, 2013, was the day before Thanksgiving and that the forecast for that date predicted inclement weather. However, the Defendants offer no evidence to support their conjecture in this regard.

So, here's my question: Does Occam's razor count as evidence?



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