Court of Appeals of Colorado Recognizes the Risk of a “Getting Close to 5” Jury Instruction, But Doesn’t Reverse Convictions

When jurors are deadlocked, many jurisdictions allow the judge to give an Allen instruction, asking them to continue deliberating and see if they can reach a unanimous verdict. But a Colorado case is the first time I’ve ever heard of a “getting close to 5” instruction, in which the judge take the temperature of a deliberating jury as 5 P.M. approaches on Friday. So, how did the court rule?

In People v. Claycomb, 2025 WL 995805 (Colo. App. 2025), Hunter Claycomb was charged with careless driving resulting in death and speeding. The case was submitted to the jury on a Friday, and

Approximately one and a half hours into deliberations, the jury simultaneously asked two questions relating to how long it had to deliberate. In a written response, the trial court instructed the jury to continue deliberating.

Thereafter,

At approximately 4:45 p.m., the trial court gave the jury what it called a “getting close to 5 instruction,” asking the jury to indicate whether it (1) wanted to break for the day and resume deliberations on Monday; (2) was close to reaching a verdict and wanted to continue deliberating until 5:30 p.m.; or (3) had reached a verdict. Upon receipt of the court’s inquiry, the jury asked the court: “Do we have to come back on Monday even if we make a decision by 5:30?” The court responded: “No. If you reach a verdict by 5:30, you will not have to come back on Monday.” The jury chose to continue deliberating and reached a verdict just before 5:30 p.m.

The jury found Claycomb guilty of careless driving resulting in death and speeding at least twenty-five miles per hour over the limit.

Claycomb later appealed, claiming that this instruction was improper. The Court of Appeals of Colorado addressed the issue as follows:

Claycomb also argues that the coercive impact of the trial court’s instruction to continue deliberating was compounded by the court’s “getting close to 5” instruction. Because we conclude that the court’s instruction to continue deliberating did not coerce the jury, we likewise conclude that there was no coercion to be compounded. We do, however, encourage trial courts to exercise caution in giving instructions like the court’s “getting close to 5 instruction.” While acknowledging a court’s desires to manage juries, its docket, and courtroom logistics, and to move a case toward completion, we also note that such instructions run the risk of encouraging the jury to rush to reach a verdict to avoid returning the next day. This hazard is demonstrated by the jury’s follow-up question asking if it would have to return on Monday if it reached a verdict by 5:30 p.m., its selection of that option, and its return of a verdict right before that time. Nonetheless, because neither this response nor the prior instructions were coercive, given the specific facts and circumstances of this case, and the jury’s deliberations, we perceive no reversible error.

It seems to me like the court recognized exactly what happened here, but simply did not want to reverse. As the court itself noted, the very hazard Claycomb identified in the “getting close to 5” instruction was laid bare by the jury’s subsequent question and verdict just before the weekend. As a result, I hope the Supreme Court of Colorado takes the case and deems such an instruction improper.

-CM