EvidenceProf Blog

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

Tuesday, July 26, 2022

Eleventh Circuit Finds No Issue With Allen Instruction to Jury That Deadlocked Three Times

In federal court (and in about half of state courts), when a jury is initially deadlocked, the judge can give them an Allen charge instructing the jury to keep deliberating. That said, a judge cannot give jurors an Allen charge that coerces a juror to give up an honest belief. So, was the Allen charge in Ruinstein v. Yehuda, 38 F.4th 982 (11th Cir. 2022), unduly coercive?

In Yehuda, jurors initially sent two notes stating they were deadlocked. Then, during the third day of deliberations, the jury sent a note stating, “[W]e cannot come to a unanimous decision after deliberating for two days." In response, the judge gave the following Allen charge:

Members of the jury: I am going to ask that you continue your deliberations to reach a verdict, and I want you to consider the following comments. This is an important case, and the trial has been expensive in terms of time, effort, money, and emotional strain to both the plaintiffs and the defendants. If you fail to agree on a verdict, the case remains open and may have to be tried again. A second trial would be costly to both sides, and there's no reason to believe either side can try it again better or more exhaustively than they have tried it before you. Any future jury is going to be selected in the same manner and from the same source as you. There is no reason to believe that the case could ever be submitted to a jury of people more conscientious, more impartial, or more competent to decide it, or that either side could produce more or clearer evidence. It's your duty to consult with one another and to deliberate with a view to reaching an agreement if you can do it without violating your individual judgment. Again, you must not give up your honest beliefs about the evidence[’s] weight or [ ] effect solely because of other jurors’ opinions or just to reach a verdict. You must decide the case for yourself, but only after you consider the evidence with your fellow jurors.

So you shouldn't hesitate to reexamine your own views and change your opinion if you become convinced it's wrong. To bring your minds to a unanimous result[,] you must openly and frankly examine the questions submitted to you with proper regard for the opinions of others with a willingness to reexamine your own views. If a substantial majority of you are for a verdict for one party[,] each of you who holds a different position ought to consider whether your position is reasonable. It might not be reasonable since it makes so little impression on the minds of your fellow jurors who bear the same responsibility, serve under the same oath[,] and have heard the same evidence. Now you may conduct your deliberations as you choose. But I suggest that you now carefully reexamine and reconsider all the evidence in light of the further instructions to you on the law. Again, considering all of the instructions as a whole, and you may take all the time you need. Again, I remind you, you must consider all of the instructions as a whole. You shouldn't single out any part of any instruction, including this one, and ignore others. And I now ask you to return to the jury room and continue your deliberations.

The next day, the jury found against the Yehudas. In response to the Yehudas' claim that this Allen charge was unduly coercive, the Eleventh Circuit noted that it considers five non-exhaustive factors:

(1) the total length of deliberations; (2) the number of times the jury reported being deadlocked and was instructed to resume deliberations; (3) whether the judge knew of the jury's numerical split when he instructed the jury to continue deliberating; (4) whether any of the instructions implied that the jurors were violating their oaths or acting improperly by failing to reach a verdict; and (5) the time between the final supplemental instruction and the jury's verdict.

Then, according to the court,

Starting with the first two relevant circumstances, the Yehudas emphasize that deliberations lasted four days and that the jury reported being deadlocked three times. We disagree that those circumstances weigh in the Yehudas’ favor. While four days of deliberation is a relatively long time, it is not alarmingly so in the context of a complex, two-week trial. Neither is the number of times the jury deadlocked especially high. In Brewster, where the jury reported being deadlocked five times, we observed that “[o]ne or two, or even three, instructions requiring a deadlocked jury to keep on deliberating might not be a problem, depending on the surrounding circumstances.” Id. at 1054.

And here, the other surrounding circumstances weigh toward the instruction being proper. Particularly significant is that the judge did not know of the jury's numerical split when instructing the jury to keep deliberating....The Allen charge in Brewster was particularly problematic because it was no secret that there was one holdout juror. As a result, each time the judge told the jury to keep an open mind and consider the views of fellow jurors, he was, in effect, speaking directly to one juror and pressuring her to fall in line....In contrast here, the judge never knew the split. For all the judge knew, the split might have been 6-6, or might have favored either party. Because the Allen charge did not target a single juror, the risk of coercion was diminished.

The last two circumstances point in the same direction. The district court never implied that the jurors would violate their oaths by failing to reach a verdict....And finally, the time the jury spent deliberating after the Allen charge—about three hours—is not necessarily indicative of coercion under our precedents. See United States v. Chigbo, 38 F.3d 543, 545–46 (11th Cir. 1994) (per curiam) (finding that fifteen minutes of deliberation between the Allen charge and the verdict did not indicate coercion); United States v. Norton, 867 F.2d 1354, 1366 (11th Cir. 1989) (finding that four hours of deliberation between the Allen charge and the verdict was “not suggestive of a coercive or pressure-filled atmosphere”); United States v. Scruggs, 583 F.2d 238, 239–41 (5th Cir. 1978) (finding no coercion when the jury deliberated for 48 minutes between the Allen charge and the verdict).

I disagree pretty strongly with this ruling. Sure, I agree on factors three and four weighing against a new trial. But, under factors one, two, and five, there were three deadlocked jury notes, followed by an Allen charge, followed by a verdict after just three hours of deliberation. Those seem like the exact circumstances where we can imply coerciveness from an Allen charge. I'm not quite sure how Eleventh Circuit precedent developed such that a jury saying it's deadlocked three times isn't concerning or that, based on prior caselaw, even a previously deadlocked jury reaching a verdict just 15 minutes after an Allen charge isn't evidence of coerciveness.



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I’m confused by what the factor of time spent between Allen charge and deadlock resolution is supposed to be? All three examples they give, varying from 15 minutes to 4 hours, apparently all indicate a non-coercive atmosphere? What would an example of this factor suggesting the opposite be then? And if all times short or long indicate no coercion, is this really a “factor” to be considered at all?

Posted by: Paul | Jan 3, 2023 3:49:00 PM

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