The Allen Charge Project: Alabama

Following up on my (still to be completed) series of posts about the different approaches that states take with regard to prior inconsistent statements, I wanted to do a series of posts about the different approaches that states take with regard to Allen charges. As we reminded recently with the Michael Slager trial, an Allen charge is an instruction that the judge gives to the jury to continue deliberating after the jury has indicated that it is deadlocked. According to Wikipedia,

Allen charges have been rejected, in whole or in part, by at least twenty-three states. Twenty-two states have rejected the charge by judicial decision: Alaska,^[5] Arizona,^[6] California,^[7] Colorado,^[8] Hawaii,^[9] Idaho,^[10] Louisiana,^[11] Maine,^[12] Michigan,^[13] Minnesota,^[14]Montana,^[15] Nebraska,^[16] Nevada,^[17] New Hampshire,^[18] New Mexico,^[19] North Dakota,^[20] Ohio,^[21] Oregon,^[22] Pennsylvania,^[23] Rhode Island,^[24] Tennessee,^[25] Wisconsin,^[26] and Wyoming.^[27] Additionally, Kentucky has eliminated the Allen charge through its rules of criminal procedure.^[28]

So, is that correct, and what have other states done with regard to the Allen charge?

Alabama: Allows for Allen charges.

As the Court of Criminal Appeals of Alabama noted in Maxwell v. State, 828 So.2d 347, 365 (Ct.Crim.App.Ala. 2000):

“‘The general rule in Alabama has been that it is not improper for the trial court to urge upon the jury the duty of attempting to reach an agreement or verdict as long as the judge does not suggest which way the verdict should be returned.'”…An Allen…charge, also known as a ‘dynamite charge,’ is permissible if the language of the charge is not coercive or threatening….

Further, “[w]hether an ‘Allen charge’ is coercive must be evaluated in the ‘whole context’ of the case.” 

-CM