EvidenceProf Blog

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

Wednesday, December 28, 2016

The Allen Charge Project: Idaho

The key Idaho case on the Allen Charge is State v. Flint, 761 P.2d 1158 (Idaho 1988).

In Flint, Ronald Flint was charged with lewd conduct with a child under 16 years of age. At the end of Flint's trial, the jury retired to deliberate at 5:15 P.M. and was excused for the night at 12:30 A.M. The jury then resumed deliberations at 9:00 A.M. the next day and later advised the court at 10:20 A.M. that it was unable to reach a verdict.

The judge then asked both sides whether he should give an Allen Charge. The prosecutor responded, "It is worth a try," but defense counsel objected, stating, "I certainly don't want an instruction that might cause any juror to change its vote just to get it over with." Over defense counsel's objection, the judge gave the following Allen Charge:

The court wishes to suggest a few thoughts which you may desire to consider in your deliberations along with all the instructions previously given. In your further effort to reach a verdict in this case I would suggest that in your deliberations you examine the issues submitted with the proper regard and consideration for the opinions of each other.

Each of you should fairly and freely discuss with your fellow jurors the evidence and the decisions to be drawn therefrom and you should listen to each other's arguments with an open mind. If, after doing so, any of you should be satisfied that a conclusion first reached by you was wrong and you should unhesitantly abandon that original opinion and render your verdict according to a final decision.

You should not hesitate to recede from a previously announced opinion or conclusion because of a sense of pride. Remember that you are not partisans or advocates but are judges. However you should not change the conclusion you have reached merely because one or more of your fellow jurors may have come to a different conclusion or merely to bring about a unanimous verdict.

Have in mind in your further deliberations that you will be making a definite contribution to efficient judicial administration if you arrive at a just and proper verdict in this case. To this end you should make every reasonable effort to reach a verdict.

I'm going to allow you to retire and continue your deliberations and advise me what you think then. But I would like you to try at least a little bit longer to see if you can reach a decision without disturbing your individual conscience in light of the fact that I know that you have all struggled for quite awhile and I know you have all been making a good faith effort to do so.

If you can, try. If you can't then please advise me....

Ninety minutes later, the jury returned with a guilty verdict.

After he was convicted, Flint appealed, claiming that the giving of this Allen Charge was erroneous. The Supreme Court of Idaho agreed, concluding that

Our review of applicable case law, sound policy considerations, and personal experiences from the perspective of both bench and bar, convinces us that the future use of dynamite instructions is not consistent with the orderly administration of criminal justice. Accordingly, we overrule State v. Bailey, and its progeny. Today's holding is consistent with the views of the Arizona Supreme Court:

When and wherever [a dynamite instruction's] use is called into question it must stand or fall upon the facts and circumstances of each particular case.... No rule of thumb can circumscribe definite bounds of when and where, or under what circumstances it should be given or refused.... 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.



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