EvidenceProf Blog

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

Tuesday, December 27, 2016

The Allen Charge Project: Hawai'i

They key Hawai'i case on the Allen Charge is State v. Farjado, 699 P.2d 20 (Hawai'i 1985).

In Farjado

On April 30, 1983, [Eliseo Fuentes Fajardo] and Tavares got into a verbal altercation at the Atlantis discotheque in the Pacific Beach Hotel in Waikiki. They decided to settle the matter outside and walked out to the hallway by the entrance of the discotheque. A fight ensued. [Farjado] pulled out a knife and stabbed Tavares to death.

Farjado was subsequently charged with manslaughter. At the close of the evidence, the jury began deliberations on the afternoon of December 21, 1983. When the jury could not reach a veridct by 3:55 P.M. on Friday, December 23rd, Farjado moved for a mistrial, but "[t]he trial court denied the motion and released the jury for the long Christmas weekend." 

The jury then resumed deliberations  at 8:30 A.M. on Tuesday, December 27, 1983. Subsequently, at 10:23 A.M., the jury sent the following message to the judge:

Your Honor:

After a period of deliberation, self examination, contemplation and meditation, we the jury have arrived at decisions which are not unanimous. Each juror became more convinced in the decision they had reached on 12/21/83.

Our deliberations serve no purpose at this time and instruction is requested.

As a result, the defense again moved for a mistrial, but the judge denied the motion and gave the following instruction to the jury:

Ladies and gentlemen, I am going to at this time give you another instruction. I am going to ask that you continue your deliberations in an effort to agree upon a verdict, and I have additional comments I would like you to consider as you do so.

If you cannot reach a verdict, this case must be tried again. Any future jury must be selected in a same manner and from the same source from which you were chosen. There is no reason to believe that this case could ever be submitted to twelve men and women more conscientious, more impartial, or more competent to decide it.

During your deliberations, you, as jurors, have a duty to consult with one another and to deliberate with the view to reaching an agreement if you can do so without violating your individual judgment. Although each juror must decide the case for himself, this should be done only after consideration of the evidence with his fellow jurors.

In the course of your deliberations, a juror should not hesitate to re-examine his own views and change his opinion if convinced it is erroneous. Each juror who finds himself to be in the minority should reconsider his views in the light of the opinion of the jurors of the majority. Conversely, each juror finding himself in the majority should give equal consideration to the views of the minority.

No juror should surrender his belief as to the weight or effect of the evidence for the mere purpose of returning a verdict.

Applying these additional comments together with all the instructions which I have previously given you, I wil now ask that you retire once again and continue  your deliberations and exercise your very best effort to reach a verdict.

Thereafter, court was recessed at 1:40 P.M., and the jury communicated to the court at 2:40 P.M. that it had reached a verdict. The verdict was a guilty verdict, and the judge's Allen Charge was the basis for Fajardo's ensuing appeal. That appeal was successful, with the Supreme Court of Hawai'i concluding that,

today we choose to adopt the position taken by states that have abandoned the Allen instruction. As the Arizona Supreme Court stated, the continued use of the Allen instruction "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 [the use of the Allen instruction] shall no longer be tolerated and approved by this court."



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