The government has all sorts of advantages in a criminal case: FBI agents flash a badge and witnesses talk willingly; prosecutors freely use grand jury subpoenas to obtain documents; discovery rules do not require them to turn over all information in their files. I could go on and on (and on and on).
You would think that a jury trial is the great equalizer. Once in front of a jury, both sides get to put on witnesses and offer documents into evidence. Then the judge gives jury instructions, and the jury deliberates to reach a verdict.
But, as with everything else in the criminal justice system, even the deliberation phase is tilted towards the government.
To convict someone, the jury must be unanimous. Also, to acquit someone, the jury must be unanimous.
It is not uncommon for the jury to be unable to reach a unanimous verdict. When a jury cannot reach a unanimous verdict (either for guilt or for acquittal), it is a hung jury. In that situation, the judge declares a mistrial. The trial is over, and the government can decide to try the person again in a later trial.
When the jury first sends a note that it cannot reach a unanimous verdict, that’s a good moment at the defense table. The euphoria is short lived. In federal court, the judge will generally give a relatively tame instruction about how important it is to reach a unanimous verdict and a reminder to keep an open mind during deliberations.
If the jury comes back a second time to say that it cannot reach a unanimous verdict, there’s again a few seconds of hope at the defense table—and then dread.
What comes next is likely an “Allen charge.” It’s sometimes called a “dynamite charge” or an “anti-deadlock charge,” because it nearly always dislodges the one or two holdout jurors to give up the fight and go along with the crowd.
What Does a Dynamite Charge Say?
Here’s a sample Allen charge from the Fifth Circuit:
Members of the Jury:
I am going to ask that you continue your deliberations in an effort to agree upon a verdict and dispose of this case; and I have a few additional comments I would like for you to consider as you do so.
This is an important case. If you should fail to agree on a verdict, the case is left open and may be tried again.
Any future jury must be selected in the same manner and from the same source as you were chosen, and there is no reason to believe that the case could ever be submitted to twelve men and women more conscientious, more impartial, or more competent to decide it, or that more or clearer evidence could be produced.
Those of you who believe that the government has proved the defendant guilty beyond a reasonable doubt should stop and ask yourselves if the evidence is really convincing enough, given that other members of the jury are not convinced. And those of you who believe that the government has not proved the defendant guilty beyond a reasonable doubt should stop and ask yourselves if the doubt you have is a reasonable one, given that other members of the jury do not share your doubt.
Remember at all times that no juror is expected to yield a conscientious opinion he or she may have as to the weight or effect of the evidence. But remember also that, after full deliberation and consideration of the evidence in the case, it is your duty to agree upon a verdict if you can do so without surrendering your conscientious opinion. You must also remember that if the evidence in the case fails to establish guilt beyond a reasonable doubt, the accused should have your unanimous verdict of Not Guilty.
You may be as leisurely in your deliberations as the occasion may require and should take all the time which you may feel is necessary.
I will ask now that you retire once again and continue your deliberations with these additional comments in mind to be applied, of course, in conjunction with all of the instructions I have previously given to you.
Can a Judge Go Too Far with an Allen Charge?
The Supreme Court upheld these types of instructions in, you guessed it, Allen v. United States, 164 U.S. 492 (1896).
Some courts, like the D.C. Circuit, have told district court judges that they can give the pattern instruction, and that’s it. For example, in United States v. Yarborough, 400 F.3d 17, 22 (D.C. Cir. 2005), the court of appeals cautioned that “[a]ny substantial departure from the language approved in Thomas [the anti-deadlock case] is presumptively coercive.”
My friend Brian Stolarz represented the defendant in a recent case where this was an issue. In United States v. Driscoll, 984 F.3d 103 (D.C. Cir. 2021), the court of appeals vacated the guilty verdict because the district court judge ad libbed coercive additions to the anti-deadlock charge (called the “Thomas charge” in the District of Columbia).
In Driscoll, the jury returned a note indicating that there was one holdout juror. The district court judge gave a standard dynamite charge but then added language emphasizing the importance of a unanimous verdict “to the parties and to the community, to the country.” The D.C. Circuit concluded that this addition alone was not error.
But the judge did not stop there. When the juror returned a second note saying that there was one juror was still holding out, the judge (probably frustrated) said:
I hope, and I hope time will show, that whichever juror this is, that he or she will embrace the spirit and the language that I read yesterday and will come around to keeping an open mind ….
This was a bridge too far for the court of appeals, because the judge eliminated the Thomas charge’s “most significant” element, which was the admonition that a juror should “not surrender honest conviction … for the mere purpose of returning a verdict.”
What’s the Big Deal?
The problem with these charges is that it is nearly always a holdout juror for acquittal, meaning that the pressure from the instruction coerces the jury to reach a guilty verdict. Anti-deadlock charges nearly always lead to a verdict for the government.
Imagine yourself as the holdout juror. Eleven other people are already pressing you to join them in their verdict. You are stuck in a small room with them for hours. Then, out in the courtroom, the judge reads in a stern voice an instruction that strongly suggests that a holdout juror should keep an open mind to changing his vote. You sit uncomfortably, knowing that he’s talking to you.
It’s a lot of pressure. And it’s a lot of pressure to find the defendant guilty.
There is a practical reason for an anti-deadlock charge, I suppose. It takes a lot of time and resources to prepare a case for trial—maybe months of time. So, to allow one juror to stand firm for a not-guilty verdict would wipe out all that work.
In my view, though, there is no reason for this kind of strong, coercive language. A judge should simply remind the jurors that they should not surrender their honest opinions but should keep an open mind. That’s it. Those are the two key parts of an anti-deadlock charge anyway. The language that if this jury doesn’t reach a verdict, then another jury will need to hear the case may be untrue: The government may decide not to try the person a second time if there is a hung jury or may offer a much better plea deal to the defendant.
Unfortunately, it would take legislation to change this state of play, and that’s unlikely to happen. So, for now, I can only encourage jurors to refuse to surrender their honest view that the government did not prove guilt beyond a reasonable doubt.
Stay strong, people, stay strong.