The Florida Bar
The Florida Bar Journal
May, 2000 Volume LXXIV, No. 5
The Danger of Deadlock: Coercion in the Courtroom

by Joseph J. Ward

Page 10

As the preceding quote alludes, juries do not have easy tasks in delivering justice, particularly in criminal trials in which an accused’s life and liberty commonly lie at risk.2 Not surprisingly, the differing backgrounds of jurors and their correspondingly different views of the evidence presented during trial often result in an inability, at least initially, to reach a unanimous verdict. When a jury “cannot reach a verdict by the required voting margin,” a hung, or deadlocked, jury results.3

Deadlocked juries present a discouraging dilemma to trial judges and counsel hoping to avert costly retrials and avoid bogging down in a quagmire of drawn-out deliberations. The primary danger jury deadlock poses for the unwary trial judge is the possibility of reversal on appeal due to the perception of court coercion. The lurking danger of preservation failure looms with equal foreboding for inattentive trial counsel.

Generally, trial courts have wide discretion in matters involving jury and trial management.4 However, trial judges may not stray far from a predetermined path when a deadlocked jury erects a barrier to case resolution. When orchestrating jury deliberations, “a trial court should not couch an instruction to a jury or otherwise act in any way that would appear to coerce any juror to reach a hasty decision or to abandon a conscientious belief in order to achieve a unanimous position.”5 A trial judge must avoid any appearance of an attempt “to lead the jury to believe that they [are] required to reach a verdict.”6
In 1983, Judge Glickstein of the Fourth District Court of Appeal summarized the considerations encompassing a trial court’s handling of a jury deadlocked during its deliberations:
It is the genius of our jury system that twelve impartial persons, individually, applying a subjective standard, come to a common conclusion of defendant’s guilt beyond a reasonable doubt. This fundamental principle becomes subverted if a jury member is pressured to defer to the opinion of his peers, for unanimity is made a sham thereby. An objective standard is in effect substituted for the subjective, by virtue of the implication that the majority opinion is reasonable, and the minority, unreasonable. Here the trial court may have led one or more jurors to capitulate, against his or her conscientious judgment, because the court made it appear that unless a verdict was reached great waste would occur and the court’s confidence in the jury’s common sense would somehow have been betrayed.7

In an effort to prevent jury coercion by trial judges, the Florida Supreme Court crafted a jury instruction commonly referred to as an Allen charge that “allows a jury to continue deliberations, even after it has announced its inability to do so, where there is a reasonable basis to believe a verdict is possible, while cautioning jurors that they should not abandon their views just to get a verdict or to accommodate the majority.”8 The deadlock instruction is also referred to as a “dynamite charge” for its “ability to blow apart deadlock.”9

Florida Standard Jury Instruction (Crim.) 3.06 on jury deadlock evolved from the concerns about trial court interference with jury deliberations first voiced by the U.S. Supreme Court in Allen v. United States, 164 U.S. 492 (1896). In Allen, the Court held that a jury instruction asking the members of the jury to reconsider their initial conclusions was not unduly coercive such that a mistrial was required, stating:

While, undoubtedly, the verdict of the jury should represent the opinion of each individual juror, it by no means follows that opinions may not be changed by conference in the jury room. The very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves . . . . It cannot be that each juror should go to the jury room with a blind determination that the verdict shall represent his opinion of the case at that moment, or that he should close his ears to the arguments of men who are equally honest and intelligent as himself.10

Since Allen, almost every state has applied some version of a deadlock instruction. These Allen charge instructions promote judicial economy by decreasing the chance that an initially hung jury will require a mistrial.11 The Allen charge embodied in Florida Standard Jury Instruction 3.06 provides:

I know that all of you have worked hard to try to find a verdict in this case. It apparently has been impossible for you so far. Sometimes an early vote before discussion can make it hard to reach an agreement about the case later. The vote, not the discussion, might make it hard to see all sides of the case.

We are all aware that it is legally permissible for a jury to disagree. There are two things a jury can lawfully do: agree on a verdict or disagree on what the facts of the case may truly be.

There is nothing to disagree about on the law. The law is as I told you. If you have any disagreements about the law, I should clear them for you now. That should be my problem, not yours.

If you disagree over what you believe the evidence showed, then only you can resolve that conflict, if it is to be resolved.

I have only one request of you. By law, I cannot demand this of you, but I want you to go back into the jury room. Then, taking turns, tell each of the other jurors about any weakness of your own position. You should not interrupt each other or comment on each other’s views until each of you had a chance to talk. After you have done that, if you simply cannot reach a verdict, then return to the courtroom and I will declare this case mistried, and will discharge you with my sincere appreciation of your services.

You may now retire to continue with your deliberations.12

This deadlock instruction was first approved by the Florida Supreme Court in State v. Bryan, 290 So. 2d 482 (Fla. 1974). In Bryan, after learning that the jury was not close to reaching a verdict despite five and a half hours of deliberation, the trial court gave the jury a “balanced” Allen charge, “urging the minority jurors to carefully reconsider their position to see if they could conscientiously agree with that of the majority of the jury.”13 The Bryan court found the instruction given did not differ materially from the approved Standard Jury Instruction 2.19, the predecessor of the current 3.06 Allen charge.14

Under Florida’s current deadlock instruction framework, once a jury informs the court that it is deadlocked, in order to avoid “infect[ing] the very integrity of the fact-finding process,”15 the trial judge should either declare a mistrial or read the Allen charge of Standard Jury Instruction 3.06.16 However, the deadlock or “dynamite” instruction should not be preemptively given before the jury has indicated deadlock.17

Florida appellate courts have found reversible error when the trial court either explicitly stated that it desired a verdict in the case or so indicated indirectly.18 Even a note from the trial judge to the jury requesting that the jury “please continue with your deliberations” has been reversed based on “the very real possibility that the jurors believed that they were required to reach a verdict even if that meant compromising their positions.”19 Harmful error is frequently found by appellate courts when a trial judge does not read the Allen charge verbatim,20 although such deviation has not always resulted in a finding of reversible error.21 Whether coercion by the trial judge improperly influenced a jury’s verdict is reviewed on appeal under a totality of the circumstances.22 Relevant considerations include the content of the deadlock instruction given, the length of deliberation after the instruction, the total length of deliberation, and any indicia in the record of coercion or pressure on the jury.23

The Florida Supreme Court’s recent decision in Thomas v. State, 24 Fla. L. Weekly S461 (Fla. Sept. 30, 1999), provides an excellent, if somewhat extreme, example of the circumstances 3.06 was fashioned to avoid. In Thomas, the jury began its deliberations at approximately 7 p.m. on a Saturday night and did not recess until after 4:30 a.m. the next morning. In response to a request by the jury during deliberations, the trial judge allowed the testimony of one witness to be reread, after which the foreman informed the judge that the jury was deadlocked 11-1. Despite defense counsel’s request for the Allen charge, the judge instructed the jury to “go back to the jury room and try one more time . . . . I would ask that you try to reach a verdict in this case. I can’t make you reach a verdict, but I would ask that you just go back and try one more time to come to a unanimous verdict in this case.”24 He subsequently informed the jury, “I must do everything that I can to have the matter resolved so that we would not have to start from the beginning on the case.”25

Jury indicating that it was still deadlocked.26 The judge denied defense counsel’s motion for mistrial, called the jury back into the courtroom, and instructed the jury to report back later that day at 1 p.m. The foreman interrupted the judge at this point, stating “[t]he discussions have broken down to open hostility. It’s an unpleasant environment. Quite frankly, I don’t think we’ll ever reach a decision.”27 Several jurors were also crying. Despite these indicators, the trial judge had the jury return later that day. The judge declined the state’s request for an Allen instruction, stating that “[t]he Allen charge simply tells them to do what they have done for the last eight to ten hours.”28 Ultimately, the jury reached a guilty verdict. On review, the Supreme Court found reversible error, holding “because we cannot conclude that the extreme circumstances prevailing here did not improperly influence the jury’s verdict, we reverse Thomas’ convictions and remand for a new trial.”29

As the preceding discussion makes clear, when jury deadlock occurs during deliberations, avoiding the appearance of coercion is the primary consideration for the trial judge. The case law indicates that when faced with a deadlocked jury, a trial judge wishing to avoid reversal on appeal has three options: 1) declare a mistrial; 2) read 3.06 verbatim; or 3) be absolutely certain that any modified Allen charge includes the specific statement that no juror should abandon his or her “conscientious convictions”30 and that “it [is] acceptable for them to disagree and not reach a verdict.”31 In sum, it would behoove a trial court to forbear any action that might give rise to a perception of coercion.

Although a trial court’s excessive pressuring of the jury to conclude the case and reach a verdict is error, a proper objection by counsel is vital for appellate review of any alleged coercion. Where the judge gives a deadlock instruction in response to jury deadlock more than once, fundamental error has been found.32 However, failure to object to a modified Allen charge generally waives appellate review absent fundamental error.33 Timely objection is necessary in order to put the judge on notice that error may have occurred in the instruction given and to give the judge an opportunity to correct the error.34 Objection is also crucial from the state’s perspective because once a trial court enters a judgment of acquittal after a jury deadlock, the judgment is no longer appealable since there has been no verdict.35

Preservation by proper objection from counsel is crucial if the trial court’s alleged coercion is to be presented for appellate review. Counsel should make timely objection when the specter of coercion enshrouds a deadlocked jury if the error is to be exorcised on appeal. q

1 Potter Stewart, Time, Oct. 20, 1958.
2 See Thomas v. State, 24 Fla. L. Weekly S461 (Fla. Sept. 30, 1999) (“A coerced verdict in a criminal case deprives the accused of a fair and impartial trial and is contrary to the mandate of the Declaration of Rights of the Constitution of the State of Florida.”).
3 Hung jury. A jury that cannot reach a verdict by the required voting margin. Also termed deadlocked jury. Black’s Law Dictionary 860 (7th ed. 1999).
4 See Milton v. State, 334 So. 2d 85 (Fla. 3d D.C.A. 1976) (holding that the trial court did not abuse its discretion by requiring jury to resume deliberations after a dinner recess where the jury reported difficulty in reaching a decision, but did not indicate that a verdict could not be reached).
5 Thomas, 24 Fla. L. Weekly S461.
6 Nelson v. State, 438 So. 2d 1060, 1062 (Fla. 4th D.C.A. 1983); see State v. Roberts, 616 So. 2d 79, 81 (Fla. 2d D.C.A. 1993) (finding no error where the trial court’s deadlock instructions could not be “construed to have improperly coerced the jury to render its verdict.”).
7 Nelson, 438 So. 2d at 1062–63.
8 Thomas, 24 Fla. L. Weekly S461.
9 Adam H. Fleischer, Poisoning the Deliberations: Jury Issues That Open After the Closing, 86 Ill. B.J. 544, 548 (Oct. 1998).
10 Allen, 164 U.S. at 501–02.
11 The Allen charge attempts to avoid “the expense and delay of a new trial.” United States v. Melendez, 60 F.3d 41, 51 (2d Cir. 1995), vacated on other grounds sub nom., Colon v. United States, 516 U.S. 1105 (1996).
12 Fla. Std. Jury Instr. (Crim.) 3.06 JURY DEADLOCK.
13 Bryan, 290 So. 2d at 483.
14 See id.
15 Warren, 498 So. 2d at 477.
16 See Goodwin v. State, 717 So. 2d 561 (Fla. 2d D.C.A. 1998).
17 See Moore v. State, 635 So. 2d 998, 999 (Fla. 4th D.C.A. 1994) (holding that the trial court erred in giving a deadlock charge to the jury “at a time when there was no indication that the jury was deadlocked” because “[t]he parties are entitled to a reasonable opportunity for the deliberative process to work before the court places any added pressure on the jury to decide a case.”).
18 See Nelson, 438 So. 2d 1060; Kozakoff v. State, 323 So. 2d 28 (Fla. 4th D.C.A. 1975).
19 Goodwin, 717 So. 2d at 562.
20 See Young v. State, 711 So. 2d 1379 (Fla. 2d D.C.A. 1998); Rodriguez v. State, 559 So. 2d 678 (Fla. 3d D.C.A. 1990); Webb v. State, 519 So. 2d 748 (Fla. 4th D.C.A. 1988).
21 See State v. Bryan, 290 So. 2d 482 (Fla. 1974); State v. Roberts, 616 So. 2d 79 (Fla. 2d D.C.A. 1993); Tejeda-Bermudez v. State, 427 So. 2d 1096 (Fla. 3d D.C.A. 1983).
22 See id. (citing United States v. Brokemond, 959 F.2d 206, 208 (11th Cir. 1992)).
23 Bettina B. Plevan, Jury Trial Issues, 601 PLI/Lit 391, 448 (Apr. 1999).
24 Thomas, 24 Fla. L. Weekly S461.
25 Id.
26 Deadlock is typically signified by a note from the jury to the judge indicating that the jury cannot reach a unanimous verdict. See Plevan, supra note 23, at 442.
27 Thomas, 24 Fla. L. Weekly S461.
28 Id.
29 Id.
30 Bryan, 290 So. 2d at 484.
31 Holmes, 710 So. 2d at 190.
32 See Tomlinson v. State, 584 So. 2d 43 (Fla. 4th D.C.A. 1991).
33 See Scoggins v. State, 726 So. 2d 762 (Fla. 1999) (affirming where counsel failed to object to instruction given); Holmes, 710 So. 2d at 190 (“It is well-settled that absent fundamental error, an objection is required to preserve any challenge to the propriety or coerciveness of a modified deadlock charge.”); Tejeda-Bermudez, 427 So. 2d at 1098 (“[D]efendant’s failure to object to the modified ‘Allen charge’ constitutes a waiver for purposes of appeal.”); cf. Warren v. State, 498 So. 2d 472, 477 (Fla. 3d D.C.A. 1986).
34 See Holmes, 710 So. 2d at 190 (affirming where counsel failed to object to instruction given because “[t]he judge could have added some instruction to the effect that the jury was not required to return a verdict, which would have blunted any perception of improper coercion.”).
35 See State v. Fudge, 645 So. 2d 23 (Fla. 2d D.C.A. 1994).

Joseph Ward is a judicial clerk for Judge Robert M. Gross at the Fourth District Court of Appeal in West Palm Beach. He graduated from the Florida State University College of Law (J cum laude, 1998) and was an editor on the Florida State University Law Review, the Journal of Land Use and Environmental Law, and the Journal of Transnational Law & Policy.

[Revised: 02-10-2012]