July 01, 2014

Jury Trials: Judicial Tyranny and the Allen Charge

Joe Saint-Veltri

Recently, I tried a federal criminal case in Colorado in which jurors reported that they were deadlocked. The young associate trying the case with me heard for the first time the prime example of judicial tyranny: the so-called Allen charge.

The charge derives from Allen v. United States, 164 U.S. 492 (1896), in which the United States Supreme Court approved an instruction directing the dissenting jurors to reconsider their positions favoring the defendant, reevaluate whether their doubt was a reasonable one, and consider the problems and expense of retrying the case. Also called the “dynamite charge,” it has been approved in modified form by every federal circuit. It typically begins with this not-so-subtle language: “Members of the jury, I am going to ask that you return to the jury room and deliberate further. I realize that you are having some difficulty reaching a unanimous agreement, but that is not unusual. Sometimes, after further discussion, jurors are able to work out their differences and agree.”

Most experienced criminal lawyers (and most judges) know that the Allen charge generally produces convictions, not acquittals. They also know that mistrials resulting from a deadlocked jury favor criminal defendants. The Allen instruction is laden with deception and is usually meant to browbeat the jury into submission.

Premium Content For:
  • Litigation Section
Join - Now