Tuesday, January 10, 2017
The key Kansas case on the Allen Charge is State v. Salts, 200 P.3d 464 (Kan. 2009).
In Salts, Alan Salts was charged with indecent liberties with a child. Before jury deliberations, the judge gave the jury the following instructions:
“Instruction 11“Your only concern in this case is determining if the defendant is guilty or not guilty. The disposition of the case thereafter is a matter for determination by the Court.”“Instruction 12“Like all cases, this is an important case. If you fail to reach a decision on some or all of the charges, that charge or charges are left undecided for the time being. It is then up to the state to decide whether to resubmit the undecided charge(s) to a different jury at a later time. Another trial would be a burden on both sides.
“This does not mean that those favoring any particular position should surrender their honest convictions as to the weight or effect of any evidence solely because of the opinion of other jurors or because of the importance of arriving at a decision.
“This does mean that you should give respectful consideration to each other's views and talk over any differences of opinion in a spirit of fairness and candor. If at all possible, you should resolve any differences and come to a common conclusion.
“You may be as leisurely in your deliberations as the occasion may require and take all the time you feel necessary.”
After he was convicted, Salts appealed, claiming that the sentence "Another trial would be a burden on both sides" was "misleading and inaccurate because another trial is not a burden to either party; rather it is the State's obligation and Salts' right."
The Supreme Court of Kansas agreed, concluding that
Salts' argument that the challenged language is misleading and inaccurate has merit. Contrary to this language, a second trial may be burdensome to some but not all on either side of a criminal case. Moreover, the language is confusing. It sends conflicting signals when read alongside Instruction 11 or a similar instruction that tells jurors not to concern themselves with what happens after they arrive at a verdict.
Therefore, the court held that this "burden" language should be struck but otherwise approved of the Allen Charge given in the case.