EvidenceProf Blog

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

Tuesday, December 13, 2016

The Allen Charge Project: California

California has clearly rejected the Allen Charge. The key case in the Golden State is People v. Gainer, 566 P.2d 997 (Cal. 1977).

In Gainer, Robert Gainer, Jr. was charged with murder. On the third day of jury deliberations, the jury indicated that it was having difficulty reaching a verdict.  The judge then inquired as to their numerical count, and the foreman replied, "Eleven to one." The judge responded by giving the following instruction:

‘Ladies and Gentlemen of the Jury:

‘In a large proportion of cases and perhaps strictly speaking, in all cases, absolute certainty cannot be attained or expected. Although the verdict to which a juror agrees must, of course, be his own verdict, the result of his own convictions and not a mere acquiescence in the conclusion of his or her fellows, yet in order to bring twelve minds to a unanimous result, you must examine the questions submitted to you with candor and with a proper regard and deference to the opinions of each other. You should consider that the case must at some time be decided, that you are selected in the same manner and from the same source from which any future jury must be selected, and there is no reason to suppose the case will ever be submitted to twelve men or women more intelligent, more impartial or more competent to decide it, or that more or clearer evidence will be produced on the one side or the other. And, with this view, it is your duty to decide the case, if you can conscientiously do so.

‘In order to make a decision more practicable, the law imposes the burden of proof on one party or the other in all cases. In the present case, the burden of proof is on the People of the State of California to establish every part of it beyond a reasonable doubt. And, if in any part of it you are left in doubt, the defendant is entitled to the benefit of the doubt and must be acquitted. But in conferring together, you ought to pay proper respect to each other's opinions and listen with a disposition to be convinced to each other's arguments.

‘And, on the other hand, if much the larger of your panel are for a conviction, a dissenting juror should consider whether a doubt in his or her own mind is a reasonable one, which makes no impression upon the minds of so many men or women equally honest, equally intelligent with himself or herself, and (who) have heard the same evidence with the same attention and with an equal desire to arrive at the truth and under the sanction of the same oath.

‘And, on the other hand, if a majority are for acquittal, the minority ought seriously to ask themselves whether they may not reasonably and ought not to doubt the correctness of a judgment, which is not concurred in by most of those with whom they are associated, and distrust the weight or sufficiency of that evidence which fails to carry conviction to the minds of their fellows.

‘That is given to you as a suggestion of the theory and rationale behind jurors coming to a decision one way or the other.

‘So, Ladies and Gentlemen of the Jury, I'm going to ask you—after lunch—to retire and continue with your deliberations and see if it is at all possible to resolve the matter.

‘I understand that, of course, on occasions it is impossible to do so, but—based upon the instruction I have just given to you—I would appreciate that after lunch—if you would go back and resume your deliberations and see if you can arrive at a verdict and that the deadlock can be broken.’

In finding that this Allen Charge was improper, the Supreme Court of California concluded that

Our jury system aspires to produce fair and accurate factual determinations in each case. An improper instruction should not be tolerated simply because statistically it may help defendants as much as prosecutors. Whichever adversary it favors, in urging minority jurors to reconsider their votes the Allen charge places excessive and illegitimate pressures on the deliberating jury. For this reason the giving of the charge is error.



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Having just been a juror in a California murder trial in downtown Los Angeles (and having also been the 1 when we were initially 11-1 and told the judge that we wouldn't be able to reach a verdict)...I can tell you my personal experience is that even if the revised jury instruction doesn't mention the minority reconsidering the majority's perspective (which our instruction did not) -- by just being told to go back in there and try and consider new approaches to reach a verdict...I feel it still has the same effect if you are the lone holdout. I found our jury instructions to be very complicated and getting any type of clarification from the judge was time consuming and not very helpful. The other jurors who had a very simple view of the case and the instructions couldn't even understand why I had questions about the instructions. They even tried to get me kicked off the jury. It was extremely stressful. I don't know if my situation is typical or not, but I really question the assumption that anyone who is a US citizen is capable of being a juror.

Posted by: Jodi | Dec 13, 2016 10:08:51 PM

Jodi-thank you for being conscientious and intellectual. You were the type of juror that should be seated in trials. And Amen on the comment that simply being a US citizen actually qualifies someone to sit on the jury -- The fact that a demagogue just got elected in this country is stark proof that it isn't

Posted by: Paul | Dec 14, 2016 4:04:36 PM

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