Court of Appeals of Virginia Finds No Issue With Allen Charge Given After Juror Indicated In Open Court That She Disagreed With The Jury’s Verdict

With an Allen charge, a judge tells jurors to continue deliberating after they’re deadlocked. This charge are typically given under a specific circumstance: The jury sends the judge a note indicating that they’re deadlocked, prompting the judge to give a neutral instruction asking the jurors to carefully consider the opinions of jurors of opposite opinions and see if they can reach consensus.

But in Bennett v. Commonwealth, 2025 WL 1373340 (Va. App. 2025), the Court of Appeals of Virginia was presented with a very different scenario, and I’m not at all sure it reached the right result.

In Bennett, Evan Patrick Bennett was charged with malicious wounding and strangulation.

After deliberating for about ninety minutes, the jury informed the trial court that it had reached a verdict. Immediately after the clerk read the verdicts—finding Bennett guilty of malicious wounding and strangulation—Juror 25 spontaneously remarked, “[T]hat is not what I voted for.” The trial court then polled the jury, asking each juror if “this [is] your verdict.” Juror 25 answered, “No.” After the poll, the jury returned to the jury room at the trial court’s direction.

Outside the jury’s presence, the Commonwealth argued that, in light of Juror 25’s comments, the jury should be directed to deliberate further. Bennett contended that giving the jury an Allen charge would not cure the problem and the court should grant a mistrial instead, arguing that Juror 25 would be pressured by the others if they were forced to continue deliberating. The court concluded that it was appropriate to direct the jury to deliberate further and it had the authority to do so. In keeping with that ruling, the court brought the jury back into the courtroom and gave them an Allen charge. It instructed the jurors that it was their duty to reach a unanimous verdict if they could “possibly…do so” without “giv[ing] up [their] honest opinion[s] as to the evidence.” A short time later, the jury returned verdicts finding Bennett guilty of the two offenses.7 This time, all the jurors, when polled individually, confirmed that the verdicts were unanimous.

On appeal, Bennett claimed that an Allen charge was inappropriate under these circumstances. The Court of Appeals addressed the issue as follows:

Bennett contends that the trial court’s decision to give an Allen instruction was error for two reasons—because the procedural posture of the case did not involve a “deadlocked” jury in the traditional sense and because the identity of the nonunanimous juror was known outside the jury room. On these facts, he suggests that the Allen charge inappropriately “subject[ed Juror 25] to pressure” and “singled [her] out to conform.”

Bennett posits that a true jury deadlock prevents the return of any verdicts, while the jury in his case returned verdicts. He points out that “a juror clearly opposed [the] verdicts” sua sponte and when polled. In this context, Bennett believes the law regarding a deadlocked jury is inapplicable.

We conclude that these factual distinctions are not legally significant. A deadlocked jury is one that “cannot reach a verdict by the required voting margin.”…Although the jury verdicts bore the foreman’s signature, they did not constitute valid verdicts because a single juror made clear that the verdicts were not unanimous. Juror 25 plainly said, “[T]hat is not what I voted for,” and replied, “No,” when asked if she joined the verdicts. But neither Juror 25’s comment nor her response in open court reflected an inability of the jury as a whole to benefit from the opportunity to deliberate further after receiving an Allen instruction….

The only difference between the typical deadlocked jury and the situation here is that the identity of the juror responsible for the nonunanimous verdicts was known outside the jury room. And Rule 3A:17 specifically permits the trial court to direct the jury to deliberate further in an effort to reach a verdict in precisely these circumstances—when the identity of the dissenting juror is known due to the poll. The decision in Carver v. Commonwealth, 17 Va. App. 7, 434 S.E.2d 916 (1993), upon which Bennett relies exclusively, does not require a different result. In Carver, this Court held “that when a juror, who fully understands the import of the question presented by the court in the polling of the jury, answers that his or her belief is contrary to the verdict rendered, the verdict is not unanimous and cannot be accepted.”…But, quoting Rule 3A:17(d), the Court explained that “the trial judge erred in accepting the verdict as rendered” in that case “without further deliberation of the jury.”…

Unlike the trial court in Carver, the trial court here properly recognized that the nonunanimous verdicts could not be accepted without further deliberations. The court exercised its discretion in a way expressly permitted under Rule 3A:17(d) by directing the jury to resume deliberations. That rule specifically contemplates a nonunanimous jury verdict in which at least one juror, in open court, has not joined the verdict, and it expressly grants the court discretion in those circumstances to direct the jury to deliberate further. As the instant trial court emphasized, all jurors are subject to experiencing some degree of pressure during the process of deliberating, and nothing in this record suggests that Juror 25 was subjected to undue pressure….To the contrary, Juror 25 readily spoke up in open court and expressed her disagreement with the first set of verdicts without even waiting for the jury poll, proving she was not afraid to voice her opinion. She also said “No” when asked during the first poll whether the verdicts were hers. Later, when polled regarding her vote after the Allen instruction and the second round of deliberations, Juror 25 did not equivocate….Instead, she agreed without comment that those were her verdicts.

Finally, nothing in the specific text of the Allen instruction renders it inapplicable on these facts, and Bennett provides no controlling law or persuasive argument suggesting otherwise. The language in the Allen charge fit the situation at hand. We hold that the relevant law and Rules of Court expressly permitted the actions taken by the court under these circumstances. The trial court did not abuse its discretion.

I’m not at all sure that I agree with this opinion, which I’m sure the Supreme Court of Virginia will hear on appeal. A jury indicating they’re deadlocked seems very different from a juror announcing in open court that she disagrees with the jury’s “guilty” verdict. When that happened here, it’s clear that both she and the other jurors knew what the judge was saying with his Allen charge: that the dissenting juror should change her vote to “guilty,” which is exactly what she did five minutes later.

The Court of Appeals of Virginia might be right that there’s no legal difference between the two circumstances. But, given that about half of states ban Allen charges altogether, I think there’s an opportunity here for the Supreme Court of Virginia to find that this is not the type of case where such a charge should be given.

-CM