Wednesday, January 4, 2017
The key Indiana case regarding the Allen Charge is Lewis v. State, 424 N.E.2d 107 (Ind. 1981).
In Lewis, Tony Lewis was charged with burglary and theft. The Lewis opinion is sparse on details regarding exactly when an Allen Charge was given during deliberations, and it doesn't even lay out the first paragraph of that Charge. But it does note the second paragraph of that Charge:
There is no reason to believe that the case can be tried again any better or more exhaustively than it has been. There is no reason to believe that more evidence or clearer evidence would be produced on behalf of either side.
According to the Supreme Court of Indiana,
We agree with the Court of Appeals that even though the second paragraph of the instruction is of a general nature, it still dangerously approaches commenting on the evidence and the conduct of the trial. A trial judge, of necessity, must have some flexibility in his discretionary authority and responsibility to preside over the trial. However, that discretion must be exercised in such a manner that he does not step over the bounds that limit him in the proper conduct of a trial. He must refrain from imposing himself and his opinions on the jury.
So, where did it leave the court? According to the justices, the
solution is the employment of the accepted procedure which has been used effectively to respond to any type of problem occasioned by a jury during its deliberations. The proper procedure is for the court to call the jury back into open court in the presence of all of the parties and their counsel, if they desire to be there, and to reread all instructions given to them prior to their deliberations, without emphasis on any of them and without further comment. This procedure will give the jury the aid necessary for them to continue their deliberations without compounding potential problems as the giving of an Allen-type instruction has done.
Therefore, even though the Supreme Court of Indiana didn't say it in so many words, judges in Indiana cannot given a typical Allen Charge.