EvidenceProf Blog

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

Friday, December 9, 2016

The Allen Charge Project: Arizona

According to Wikipedia, Arizona is one of the jurisdictions that has rejected the Allen Charge in whole or in part. The cited case is State v. Thomas, 342 P.2d 197 (Ariz. 1959).

In Thomas, Albert Thomas was charged with first-degree murder. After a six day trial, the case was submitted to the jury at 3:20 P.M. When the jury hadn't reached a unanimous verdict by midnight, the judge gave the following Voeckell Instruction (based on a prior case named Voeckell):

All right, members of the jury, I am going to give you further instructions in this case. You are further instructed, members of the jury, that although the verdict to which each juror agrees must, of course, be his own verdict and the result of his own convictions and not a mere acquiescence in the conclusion of his fellows, yet in order to bring twelve minds to a unanimous result you must examine the question submitted to you with candor and with proper regard and deference to the opinions of each other.

‘There is no reason to suppose that this case will ever be submitted to twelve more intelligent, more impartial or more competent jurors to decide it, or that more or clearer evidence will be produced on one side or the other. With this in view it is your duty to decide this case if you can without yielding your conscientious convictions. In conferring together you ought to pay proper attention to each other's opinion and listen with a disposition to be convinced by other's arguments, and on the other hand if a larger number of your panel are for conviction, a dissenting juror should consider whether a doubt in his own mind in a reasonable one which makes no impression on the minds of so many jurors equally honest, equally intelligent with himself who have heard the same evidence, with the same oath; and if on the other hand the majority are for the defendant, the minority should ask themselves whether they may not and ought to reasonably doubt seriously the correctness of a judgment which is not concurred in by most of those with whom they are associated and distrust the weight and sufficiency of that evidence which fails to carry conviction to the minds of their fellow jurors.’ (emphasis added)

At 2:30 A.M., the jury returned a guilty verdict. On appeal, the Supreme Court of Arizona reversed Thomas's conviction, concluding with regard to the Voeckell Instruction that

It now appears that its continued use will result in an endless chain of decisions, each link thereof tempered and forged with varying facts and circumstances and welded with ever-changing personalities of the appellate court. This is not in keeping with sound justice and the preservation of human liberties and security. We are convinced that the evils far outweigh the benefits, and decree that its use shall no longer be tolerated and approved by this court.

Later, in State v. Smith, 493 P.2d 904 (Ariz. 1972), the judge gave the same Voeckell Instruction as the one given in the Thomas case, minus the bolded language. In finding this instruction erroneous, the court concluded that

The challenged instruction is disapproved for future use. While less objectionable than the full Voeckell instruction, nevertheless it contains potentially objectionable material which under the proper circumstances could result in reversible error. We reaffirm our disapproval of the use of this type of instruction.



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