F 17.55

F 17.55 n1 Deadlock Instructions: Instruction Delivered By Someone Other Than The Judge.

The courts have not hesitated to apply an Allen charge (Allen v. United States (1896) 164 US 492 [41 LEd2d 528; 17 SCt 154]) analysis where the instruction is delivered by someone other than the judge (see, e.g., U.S. ex rel. Tobe v. Bensinger (7th Cir. 1974) 492 F2d 232, 238 [bailiff]; see also Weaver v. Thompson (9th Cir. 1999) 197 F3d 359, 365-67).

F 17.55 n2 Deadlock Instructions: Subjective Impressions Of Jurors Regarding Whether They Felt Coerced Should Be Given Reduced Weight.

(See Weaver v. Thompson (9th Cir. 1999) 197 F3d 359, 366 fn 8.)

F 17.55 n3 Deadlock Instructions: Improper To Foreclose Partial Verdict.

The instructions should make it clear to the jury that their task is to conscientiously reach and abide by their own decision even if it results in a hung jury as to some counts. (See generally, Weaver v. Thompson (9th Cir. 1999) 197 F3d 359, 366; People v. Kurzman (88) 46 C3d 322 [250 CR 244]; FORECITE F 17.40 n1.) Hence, it is improper and highly coercive to inform the jury that it must reach a verdict as to all counts. (Weaver, 197 F3d at 366.) Such an instruction effectively tells the minority jurors that they [have] two choices: give into the majority position, or manage the same coup pulled off by juror number eight in Twelve Angry Men. [Footnote omitted.]” (Ibid.) Such an instruction is an improper de facto Allen charge which violates the defendant’s due process rights. (Ibid.)

F 17.55 n4 Deadlock Instructions: Factors To Consider.

“The general test of whether a supplemental jury instruction is in error is to consider all the circumstances to determine if the instructions were coercive.” (Jiminez v. Myers (9th Cir. 1993) 40 F3d 976, 980.) After reviewing the record, the reviewing court must make a de novo determination of the constitutional weight to be given the facts. (Weaver v. Thompson (9th Cir. 1999) 197 F3d 359, 366.) Four factors should be considered in making the inquiry: “(1) the form of the jury charge, (2) the amount of time of deliberation following the charge, (3) the total time of deliberation, and (4) other indicia of coerciveness or pressure.” (Ibid; see also U.S. v. Wills (9th Cir. 1996) 88 F3d 704, 717.)

As to the first factor, an important consideration is whether the instruction included an offsetting cautionary instruction informing the jurors that they need not give up their conscientiously held views. (See U.S. v. Plunk (9th Cir. 1998) 153 F3d 1011, 1027; see also Weaver v. Thompson (9th Cir. 1999) 197 F3d 359, 366; FORECITE F 17.55a.)

Under the fourth “catch all” factor matters such as the jury’s lengthy day, the lateness of the hour and the fact that the jury votes appear to remain in flux until the very end may all be considered. (See Weaver v. Thompson (9th Cir. 1999) 197 F3d 359, 367.)

F 17.55 n5 Juror Deadlock: Virga Firecracker Instruction.

See FORECITE F 3550 Note 2.

F 17.55a

Jury Deadlock: Jurors Not To Surrender Honest Belief

For Purpose Of Returning Verdict (17.55)*

Do not hesitate to reexamine your own views and to change your opinion if you are convinced you are wrong. However, you must not surrender your honest belief as to the weight and effect of evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict.

Points and Authorities

In fashioning an instruction to a deadlocked jury the trial court must be careful to assure that the jury’s independent judgment is not displaced “in favor of considerations of compromise and expediency.” (People v. Miller (90) 50 C3d 954, 994 [269 CR 492] [citations omitted].)

The judge must sufficiently remind “each of the jurors of his obligation to give ultimate controlling weight to his own conscientiously held opinion.” (Sullivan v. United States (9th Cir. 1969) 414 F2d 714, 718.) U.S. v. Kenner (2nd Cir. 1965) 354 F2d 780, 784 (cert. denied, (66) 383 US 958 [16 LEd2d 301; 86 SCt 1223]) held the instruction must tell the minority not to abandon their conscientiously held views merely to secure a verdict. (See also U.S. v. Beattie (9th Cir. 1980) 613 F2d 762, 764.) Rodriguez v. Marshall (9th Cir. 1997) 125 F3d 739 upheld the judicial inquiry during deadlocked deliberations where the court on four separate occasions reminded the jurors not to surrender their sincerely held beliefs under pressure from the majority. (Id. at p. 751.) A trial court’s failure to give such a cautionary instruction weighs heavily in favor of the conclusion that the defendant’s right to a fair trial and impartial jury has been violated. (See Jiminez v. Meyers (9th Cir. 1993) 40 F3d 976; see also U.S. v. Bonam (9th Cir. 1985) 772 F2d 1449, 1450; U.S. v. Mason (9th Cir. 1981) 658 F2d 1263 at 1268.)

The above instruction was adapted from the one given in Lowenfield v. Phelps (88) 484 US 231, 235 [98 LEd2d 568; 108 SCt 546].)

[See Brief Bank B-812 for additional briefing on this issue.]

PRACTICE NOTE: An instruction such as the above may be especially critical. Steven Penrod (JD, Ph.D., Professor of Law at the University of Minnesota), who has been researching jury decision-making for about 20 years, and others, have found that while out-and-out persuasion has minimal effect, jurors tend to capitulate if they feel outnumbered by the rest of the jury. (See Tori DeAngelis, American Psychological Association Monitor, June 1995.)

* NOTE: This is a FORECITE designated number. CALJIC does not include instructions on juror deadlock.