Thursday, August 11, 2005


This week it was reported that two of the Michael Jackson jurors have written books about their service. They claim that they were convinced beyond a reasonable doubt that Jackson was guilty, but they finally gave in to the majority and voted “Not Guilty.”

In Allen v. United States (1896), the Supreme Court of the United States approved a trial Judge’s instruction to the jury which was designed to prevent a mistrial by jury disagreement. The “Allen” charge, also referred to as a “dynamite charge,” and as a "shotgun" charge,has been used in some form in the federal and state courts in criminal cases as a last resort to try to avoid a “hung jury.”

The instruction tells the jury members of their right to hold out if they are not convinced, but the instruction reminds the jurors of their duty to listen to and consider the opinions of the other jurors. Paraphrased, the instruction is:

"In a large proportion of cases absolute certainty cannot be expected. Although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusions of his fellows, yet you should examine the question submitted with candor, and with a proper regard and deference to the opinions of each other.

"It is your duty to decide the case if you can conscientiously do so. You should listen, with a disposition to be convinced, to each other’s arguments. If much the larger number are for conviction, a dissenting juror should consider whether his doubt is a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself.

"If, upon the other hand, the majority is for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority."
Volume 164, United States Reports, page 492.

This type of instruction is truly dynamite when it is given to a criminal case jury which has deliberated for a long period and is divided, say, 10 to two, or 11 to one. The Supreme Court of New Mexico does not allow this instruction to be given, nor any type of “dynamite” charge to be given, during jury deliberations. Our Court requires a modified version of the instruction to be given in every case, but at the beginning of the arguments, following the evidence. Of course a written copy of the instructions goes with the jury for use during deliberations. The New Mexico instruction is as follows:

"Your verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agrees. Your verdict must be unanimous.

"It is your duty to consult with one another and try to reach an agreement. However, you are not required to give up your individual judgment. Each of you must decide the case for yourself, but you must do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to re-examine your own view and change your opinion if you are convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the purpose of reaching a verdict.

"You are judges - judges of the facts. Your sole interest is to ascertain the truth from the evidence in the case." Uniform Jury Instructions - Criminal, Section 14-6008.

In its Use Note, the Court directs: “This instruction must be given in every case. After the jury has retired for deliberation neither this instruction nor any 'shotgun' instruction shall be given." The commentary of the State Bar committee which proposes instructions, points out that the federal rule and the standards of the American Bar Association are in accord with this approach by our Supreme Court.

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