EvidenceProf Blog

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

Monday, December 19, 2016

The Allen Charge Project: D.C.

They key D.C. case on the Allen Charge is Winters v. United States, 317 A.2d 530 (D.C. 1974).

In Winters

As a result of a cutting incident outside a neighborhood bar, [Frank Winters] was charged with assault with a dangerous weapon, and with carrying a dangerous weapon....The victim testified that although there had been some past differences between them, [Winters], without provocation, cut him on the side of the face as they left the bar. The victim saw no knife but the cut was extensive.

After deliberating for a while, the jury sent the judge a note stating that they

had reached a verdict on count 2 (carrying a dangerous weapon), but ‘Can't reach decision on charge #1 (ADW)...Shall we continue or adjourn?’ The court took the verdict, an acquittal on count 2, and then gave the standard Allen charge over appellant's objection. The jury resumed its deliberations and, within 25 minutes, returned a verdict of guilty on the remaining count.

Although it affirmed Winters's conviction on appeal, a majority of the D.C. Court of Appeals concluded that there should be some modifications to the standard Allen Charge. According to the majority, judges should give the following version of the Allen Charge:

In a large proportion of cases, absolute certainty cannot be attained or expected. Although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of your fellows, yet you should examine the questions submitted to you with candor and with proper regard and deference to the opinions of each other. [It is your duty to decide the case if you can conscientiously do so.] You should consider that it is desirable that the case be decided; that you are selected in the same manner, and from the same source, from which any future jury must be; and there is no reason to suppose that the case will ever be submitted to twelve persons 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. You should listen to each other's arguments with a disposition to be convinced. [If much the larger number of jurors are for conviction, a dissenting juror[Thus, where there is disagreement, jurors for acquittal should consider whether [his] their doubt is a reasonable one which makes no impression upon the minds of [so many jurors,] others, equally honest, equally intelligent with [himself] themselves, and who have heard the same evidence, with the same attention, with an equal desire to arrive at the truth, and under the sanction of the same oath[If, upon]And on the other hand, [the majority are for acquittal, the minority] jurors for conviction ought seriously to ask themselves whether they might not reasonably doubt the correctness of a judgment which is not concurred in by [the majority] others with whom they are associated; and distrust distrust the weight or sufficiency of that evidence which fails to carry conviction in the minds of their fellows.

Additionally, Judge Gallagher wrote a concurring opinion. Judge Gallagher proposed the following language:

The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous.

You should consider that it is desirable that the case he decided if you can conscientiously do so; that you are selected in the same manner, and from the same source, from which any future jury must be; and there is no reason to suppose that the case will ever be submitted to twelve persons more intelligent, more impartial, or more competent to decide it, or that more or clearer evidence will be produced on one side or the other.

It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without sacrificing your individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views, and the reasons for your views, and change your opinion if convinced it is wrong.

But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or only for the purpose of returning a verdict. You are not advocates for either side. You are judges-judges of the facts. Your sole interest is to find the truth from the evidence in the case.

So, now, judges in D.C. don't give the standard Allen Charge, but they sometimes give either of these modified versions. See, e.g., Green v. United States, 740 A.2d 21 (D.C. 1999).

-CM 

https://lawprofessors.typepad.com/evidenceprof/2016/12/they-key-dc-case-on-theallencharge-is-winters-v-united-states317-a2d-530-dc-1974.html

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