EvidenceProf Blog

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

Friday, December 16, 2016

The Allen Charge Project: Delaware

The key Delaware case on the Allen Charge is Collins v. State, 56 A.3d 1012 (Del. 2012). 

In Collins, Solomon Collins was charged with first-degree murder and related crimes. At the end of the trial,

After eleven hours of deliberation, the jury foreman sent the second of two notes to the trial judge. The second note read, "The jury believes that further discussions will not change the present vote of a hung jury."

The trial judge asked the foreman if he believed "further deliberations would help in this matter at all?" The trial transcript indicates only that the foreman answered, "No." However, the trial judge, defense counsel, and prosecutor all commented on the record that the foreman's response was a very "interesting" no. The prosecuting attorney clarified for the record that the "foreman's answer was kind of a long drawn out no." The trial judge explained: "That answer threw out some questions in my mind, so because of that I'm going to read the Allen charge. I don't think it will hurt in this case."

Over defense counsel's general objection, the judge gave an Allen Charge that included the following language:

If a much greater number of you are for one side, each dissenting juror ought to consider whether his or her position is a reasonable one, since it makes no effective impression on the minds of so many equally honest, intelligent, fellow jurors, who bear the same responsibility, serve under the same sanction of the same—excuse me, serve under the sanction of the same oath and have heard the same evidence with, we may assume, the same attention and an equal desire to arrive at the truth.

In a like manner, the jurors who constitute a greater number should consider the reasons of those who take a different position to see whether there may be persuasive merit in that position. You are not partisans, you are judges, judges of the facts.

This Allen Charge was read at 10:58 A.M., and the jury later returned a guilty verdict at 1:04 P.M. that same day. On appeal, Collins claimed that the Allen Charge was impermissible for several reasons, including the wording of the instruction concerning jurors in "the majority" or "the minority."

With regard to this wording, the Supreme Court of Delaware found that Collins's general objection was no sufficient to preserve the issue for appellate review and therefore only considered the issue of whether the wording was plain error. According to the court,

An Allen charge that instructs the majority and the minority to re-examine their views has been approved in the First, Fourth, Sixth and Eighth Circuits. The Allen charges approved by these circuits differed in their wording, but each drew a distinction between majority and minority jurors and in some fashion asked both groups to reconsider their views. Importantly, each of those circuits found repeated warnings—as was done here—that jurors not give up their individual convictions, diminished the risk that the majority/minority distinction might be coercive. The Seventh and the District of Columbia Circuits agree with the Third Circuit that any majority/minority distinction is coercive.

Although these approaches suggest that any instruction using the majority/minority distinction is best avoided, the divergent federal precedent persuades us that it was not plain error for the trial judge to make the distinction in his Allen charge in this case. The error in wording—if there was one—was neither plain nor obvious.

So, in other words, Delaware allows for the use of Allen charges, but it is unclear whether they can include the majority/minority language.



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