The Allen Charge Project: Alaska

The key Alaska case regarding the Allen Charge is Fields v. State, 487 P.2d 831 (Alaska 1971). In Fields, Eugene Field and Joseph Bassett appealed from their convictions for assault with a dangerous weapon, attempted robbery, robbery, and grand larceny. When the jury had been deadlocked in the case, the judge gave the following instruction:

Although the verdict to which a juror agrees must, of course, be his own verdict-the result of his own convictions and not a mere acquiescence in the conclusion of his fellows, yet, in order to bring twelve minds to a unanimous result, you must examine the questions submitted to you with candor, and with a proper regard and deference to the opinions of each other. You should consider that the case must at some time be decided; that you are selected in the same manner, and from the same source, from which any future jury must come; and there is no reason to suppose that the case will ever be submitted to twelve persons, twelve men and women more intelligent, more impartial, or more competent to decide it, nor that more or clearer evidence will be produced on one side or the other. With this in view, it is your duty to decide the case if you can conscientiously do so. In order to make a decision more practicable, the law imposes the burden of proof on one party or the other, in all cases. In the present case, the burden of proof-the burden is upon the State to establish the guilt of the defendants beyond a reasonable doubt, and if you are left in doubt as to the guilt of the defendants, or either of them, such defendant or defendants is entitled to the benefit of that doubt and must be acquitted. But, in conferring together you ought to pay proper respect to each other’s opinions and reasons, with the disposition to be convinced with each other’s arguments. And, on the one hand, if much the larger number of you are for a conviction, the dissenting jurors should consider whether the doubt in their own minds is a reasonable one which makes no impression upon the minds of so many men and women equally honest, and equally intelligent, and who have heard the same evidence, with the same attention, with an equal desire to arrive at the truth, and under the sanction of the same oath. And, on the other hand, if the majority of you are for acquittal, the minority should equally ask themselves whether they may not reasonably and ought to doubt the correctness of the judgment which is not concurred in by a number of those with whom they are associated and distrust the weight of sufficiency of that evidence which fails to carry conviction in the minds of their fellows. With that admonition you are directed to continue your deliberations until you arrive at a unanimous verdict. You will again retire to your jury room and continue your deliberations.

The Supreme Court of Alaska found that this instruction necessitated a new trial because

The import of the instruction is that a criminal trial must end with either a verdict of guilty or not guilty. Yet, this is not the law for there is no requirement that a jury agree. A hung jury is a legitimate end of a criminal trial, and is the occasionally inevitable result of requiring a unanimous verdict beyond a reasonable doubt.

Specifically, the court concluded that

Much of what was generally accepted in 1896, when Allen…was decided is not good law today. Contemporary criticisms of the Allen charge indicate that it is less an object of commendation than toleration. Recent court opinions and scholarly commentary reveal a growing concern with the potentially coercive effects of the Allen charge upon the minority jurors. Two state appellate courts have used their supervisory power to abolish the practice of instructing potentially hung juries on their responsibility to reach a verdict. The Fifth Circuit has indicated dissatisfaction with the charge on a number of recent occasions, and two judges on that court have argued that it is unconstitutional. The Seventh Circuit and the District of Columbia Circuit have both proscribed its future use, while the Third Circuit has severely limited if not completely prohibited the giving of the Allen charge. Agreeing with these judicial criticisms, the commentators have recommended that it be modified, infrequently invoked, or abolished.

The court then replaced the Allen Charge with the standards from the American Bar Association Project on Minimum Standards of Criminal Justice, which recommend that:

(a) Before the jury retires for deliberation, the court may give an instruction which informs the jury:

(i) that in order to return a verdict, each juror must agree thereto;

(ii) that jurors have a duty to consult with one another and to deliberate with a veiw to reaching an agreement, if it can be done without violence to individual judgment;

(iii) that each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors;

(iv) that in the course of deliberations, a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous; and

(v) that no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict.

(b) If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in subsection (a). The court shall not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.

(c) The jury may be discharged without having agreed upon a verdict if it appears that there is no reasonable probability of agreement.

http://law.justia.com/cases/alaska/supreme-court/1971/1137-0.html