NOTES
Preserving the Value of Unanimous Criminal Jury
Verdicts in Anti-Deadlock Instructions
EMIL J. BOVE III*
This Note probes the tension between requiring criminal juries to agree
unanimously on a verdict and trying to avoid improperly coercing jurors’ votes
during deliberations. In doing so, it adds precision to the debate about methods
for dealing with deadlocked jurors by advancing a clear definition of the type of
juror coercion to be avoided and parsing out the true values we derive from the
unanimity preference.
First, this Note argues that the criminal justice system functions best when a
jury’s verdict is its own and free from undue influence. Thus, the type of juror
coercion to be avoided in this context results from a judge impermissibly
influencing the jury’s deliberations, whether intentionally or not. Second, the
biggest benefits of requiring unanimous criminal verdicts are that unanimous
verdicts reinforce the symbolic legitimacy that attaches to the jury’s pronouncement of guilt and enhance jury deliberations in ways that are consistent with
our ideal view of local participatory democracy. In order to preserve these
benefits to our system, it is vital to prevent judges from coercing jurors’ votes or
improperly influencing the deliberation room. After defining these parameters,
the Note uses examples from state and federal courts to illustrate why the
reform debate should prioritize avoiding this specific type of coercion and
preserving the true value of the unanimity requirement.
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
252
I. VAGUE PARAMETERS: JUROR COERCION AND THE “PROBLEM” OF THE
HUNG JURY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
254
A.
COERCING JURORS
.................................
255
* Georgetown University Law Center, J.D. 2008; State University of New York at Albany, B.A.
2003. © 2008, Emil J. Bove III. This Note was developed in Professor James Oldham’s Trial by Jury
seminar, and I thank him and all of the students in the seminar for their comments and encouragement.
Thanks also to Georgetown Professors Nicholas Quinn Rosenkranz and Sasha Volokh; David McCaffrey of the State University of New York at Albany; and Amie Ely, Josh Hsu, and Jennifer Marcovitz,
all of whom provided valuable insights during the revision process. I would also like to thank the
editors and staff of The Georgetown Law Journal, and in particular Marisa Armanino and Joanne Chan,
for their thoughtful edits and assistance.
251
252
THE GEORGETOWN LAW JOURNAL
B.
[Vol. 97:251
........................
258
II. WHY UNANIMITY? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
259
A.
B.
HUNG JURIES AND THEIR COSTS
HISTORY OF THE UNANIMITY REQUIREMENT
................
260
ALTERNATIVE RULES OF DECISION: FOCUSING ON THE
.............................
263
1.
Rules of Decision and Verdict Accuracy . . . . . . . . . . . .
263
2.
The Effect of Unanimity on Jury Deliberations . . . . . . . .
266
.....
267
III. PRESERVING THE RIGHT VALUES: ASSESSING METHODS FOR DEALING
WITH DIVIDED JURIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
275
DELIBERATIVE PROCESS
C.
SYMBOLIC LEGITIMACY AND THE UNANIMITY REQUIREMENT
A.
ALLEN AND ITS RELATIVES
............................
275
B.
ARIZONA’S IMPASSE INSTRUCTION
.......................
280
C.
CALIFORNIA’S APPROACH: THE PHIL SPECTOR TRIAL
...........
284
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
286
INTRODUCTION
In most jurisdictions, only a small percentage of criminal trials results in a
mistrial because of an irreparably divided jury.1 Despite the infrequency of
mistrials, many believe that hung juries are a real problem.2 Approaches to
handling divided juries vary greatly, and several different methods have been
proposed for avoiding hung juries without inappropriately coercing jurors or
verdicts. However, this reform debate has been muddled for several reasons.
First, the definition of coercion is rarely laid out explicitly. Second, neither the
costs of hung juries nor actual instances of juror coercion are easily identifiable,
which adds to the difficulty in balancing the costs and benefits of alternatives
for handling the coercion problem. Finally, little effort has been made to define
the specific qualities of the unanimous-verdict system that should be preserved
when considering potentially coercive instructions.
The tension between the widespread requirement that criminal jury verdicts
be unanimous and the preference that these cases not end in mistrials comes to a
head in the courtroom when a jury first announces that it is divided. This Note
examines the interaction between divided juries, the potential for juror coercion,
1. William S. Neilson & Harold Winter, The Elimination of Hung Juries: Retrials and Nonunanimous Verdicts, 25 INT’L REV. L. & ECON. 1, 2 (2005).
2. See, e.g., B. Michael Dann, “Learning Lessons” and “Speaking Rights”: Creating Educated and
Democratic Juries, 68 IND. L.J. 1229, 1270 (1993).
2008]
UNANIMOUS CRIMINAL JURY VERDICTS
253
and the preference that criminal verdicts be unanimous. Examining these related
considerations together leads to the conclusion that anti-deadlock instructions
should be assessed in terms of their likely impact on the benefits we derive from
the unanimity requirement and the instructions’ potential damage to the virtues
we associate with criminal jury trials. Maintaining an environment that facilitates the deliberative process in the jury room is one of the most important
considerations in handling a deadlocked jury.
Framed in those terms, the key issue is avoiding judicial interference that
impacts the jury’s deliberations and coerces jurors to change their votes in order
to achieve unanimity. If the sincere vote of each juror is presently expected or
normatively desirable in the criminal justice system, then courts ought to be
extremely sensitive to juror coercion originating from the bench. On the other
hand, if the unanimity preference is an outdated artifact, then the danger of
coercing jurors’ votes to reach unanimity may not be as much of a concern, and
judges might consider more aggressive anti-deadlock instructions. For most, the
latter proposition is intuitively troubling, and rightly so. Thus, it is clear that a
broad category of juror coercion should be avoided, and courts should be
sensitive to this consideration. Threats or compulsion are not the only problem;
any type of inappropriate influence from the judge on the deliberations creates
the potential that the ultimate verdict will be tainted by third parties who should
not be participating in the deliberations. This type of coercion can threaten the
legitimacy of the criminal justice process, detract from defendants’ right to be
judged by their peers, and limit the extent to which society accepts the outcome
of the trial.
The unanimity requirement is an important part of this process, and there are
persuasive reasons for retaining it. Although the historical rationale behind the
requirement is murky and empirical evidence suggests that requiring unanimity
does not increase the accuracy of the trial process, the requirement still serves
important purposes. First, it empowers each juror’s vote with individual meaning in a way that enhances deliberations: each juror has a voice, the discussions
are often more vigorous and in-depth, and the result usually represents the voice
of each person in the room. These qualities are all consistent with the exercise
of deliberative democracy in local communities. Second, requiring unanimity
reinforces the symbolic legitimacy that attaches to a jury of the defendant’s
peers.
Part I briefly sets out preliminary parameters for the discussion by defining
the phrase “juror coercion” in more definite terms and examining the “costs”
that are sometimes associated with hung-jury mistrials. Part II scrutinizes the
unanimity requirement in order to uncover the values that should be protected
when crafting and administering anti-deadlock instructions.
Part III discusses some of the present alternatives for handling deadlocked
juries in connection with this discussion. First, the now-disfavored Allen charge
used to instruct jurors that “if much the larger number [of jurors] were for
conviction, a dissenting juror should consider whether his doubt was a reason-
254
THE GEORGETOWN LAW JOURNAL
[Vol. 97:251
able one which made no impression upon the minds of so many men, equally
honest, equally intelligent with himself.”3 Similar versions of this instruction
were used in federal and state courts for many years, but its fatal flaw is that it
fails to preserve the integrity of the jury’s deliberative function and encourages
those in the minority faction to change their vote. Alternative anti-deadlock
instructions that abandon comments to dissenting jurors are preferable because
they do not directly interfere with the province of the jury and its deliberations.
Another approach, exemplified by Arizona’s “impasse” instruction, provides the
court and parties with wide flexibility to “assist” divided juries. Although
judges’ options for assisting the jury risk interfering with our traditional beliefs
about the trial process and jury deliberations, most judges in Arizona’s system
operate in a way that preserves the symbolic value of the jury trial and the
unanimous verdict. On the other hand, Phil Spector’s murder trial in California—a state with an anti-deadlock approach similar to Arizona’s—presents an
example of the potential for a judge to interfere with the jury’s task and ruin the
legitimacy associated with the process.
I. VAGUE PARAMETERS: JUROR COERCION AND THE “PROBLEM” OF THE HUNG JURY
The first known mistrial in the United States resulting from a jury’s inability
to agree on a verdict occurred in 1807.4 Since at least 1824, “the law has
invested Courts of justice with the authority to discharge a jury from giving any
verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice
would otherwise be defeated.”5 One well-recognized situation presenting “manifest necessity” to declare a mistrial is the “deadlocked” or “hung”6 jury.7 Yet, a
jury may be divided at some point during deliberations without being “hopeless[ly] deadlock[ed].”8 Given the sliding scale between early-deliberation division and irreconcilable divide,9 the appropriate means by which a court may
facilitate continued deliberation toward a verdict is a much-debated topic.10
3. Allen v. United States, 164 U.S. 492, 501 (1896).
4. George C. Thomas III & Mark Greenbaum, Justice Story Cuts the Gordian Knot of Hung Jury
Instructions, 15 WM. & MARY BILL RTS. J. 893, 897 (2007) (citing United States v. Workman, 28 F. Cas.
771, 773 (D. La. 1807) (No. 16,764)).
5. United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824).
6. See BLACK’S LAW DICTIONARY 860 (7th ed. 1999) (defining “hung jury” as “[a] jury that cannot
reach a verdict by the required voting margin,” with a cross reference to “deadlocked jury”).
7. See United States v. Castellanos, 478 F.2d 749, 751 (2d Cir. 1973) (“[T]he classic example of
manifest necessity is the discharge of a genuinely deadlocked jury.” (internal quotation marks omitted)).
8. United States v. U.S. Gypsum Co., 438 U.S. 422, 462 (1978); see, e.g., Fry v. Piller, 127 S. Ct.
2321, 2328 (2007) (Stevens, J., concurring in part and dissenting in part).
9. See United States v. Razmilovic, 507 F.3d 130, 137 (2d Cir. 2007) (“The term ‘genuinely
deadlocked’ suggests more than an impasse . . . .”); United States v. Byrski, 854 F.2d 955, 962 (7th Cir.
1988) (“[B]ecause the state of jury deliberations is ever-changing, prior evidence of deadlock is not
always dispositive of a jury’s present inability to reach a unanimous verdict.”).
10. See Thomas & Greenbaum, supra note 4, at 898.
2008]
UNANIMOUS CRIMINAL JURY VERDICTS
255
The debate begins with the well-settled principle that a judge may not
“coerce” jurors to arrive at a verdict.11 As the Supreme Court has stated:
[I]f [the trial judge] fails to discharge a jury which is unable to reach a verdict
after protracted and exhausting deliberations, there exists a significant risk
that a verdict may result from pressures inherent in the situation rather than
the considered judgment of all the jurors. If retrial of the defendant were
barred whenever an appellate court views the ‘necessity’ for a mistrial differently from the trial judge, there would be a danger that the latter, cognizant of
the serious societal consequences of an erroneous ruling, would employ
coercive means to break the apparent deadlock.12
The prohibition is specific, but the definition of “coercion” is neither clear nor
well-settled.13 This Part sets the scene for the overall discussion by examining
the two bookends of this debate: juror coercion and costs relating to hung juries.
A. COERCING JURORS
The dictionary definition of “coerce” is “[t]o force to act or think in a certain
way by use of pressure, threats, or intimidation; compel.”14 Although today we
believe that juror coercion should be avoided, that has not always been the
case.15 Dissenting jurors in medieval times were thought to have committed
perjury, and the law threatened severe punishment:
[Convicted jurors shall be] committed to the King’s prison, their goods shall
be confiscated, their possessions seized into the King’s hands, their habitations and houses shall be pulled down, their woodland shall be felled, their
meadows shall be plowed up and they themselves forever thenceforward be
esteemed in the eye of the law infamous.16
11. See Jenkins v. United States, 380 U.S. 445, 446 (1965); see also Note, Due Process, Judicial
Economy, and the Hung Jury: A Reexamination of the Allen Charge, 53 VA. L. REV. 123, 137 n.65
(1967) [hereinafter A Reexamination of the Allen Charge] (reasoning that “compelling a jury to reach a
verdict against its will would clearly be a denial of due process,” and “any charge which ‘coerced’ a
jury to decide would necessarily involve a deprivation of due process”) (citing Mills v. Tinsley, 314
F.2d 311 (10th Cir. 1963)).
12. Arizona v. Washington, 434 U.S. 497, 509–10 (1978); see also Brasfield v. United States, 272
U.S. 448, 449–50 (1926) (judicial inquiry to jury regarding “extent of its numerical division” is usually
coercive).
13. United States v. Fioravanti, 412 F.2d 407, 416 n.20 (3d Cir. 1969) (“That a judge may not
‘coerce’ the jury into reaching a verdict has long been recognized, the only disagreement being as to
what constitutes ‘coercion.’”).
14. THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 367 (3d ed. 1992).
15. Thomas & Greenbaum, supra note 4, at 898–900 (discussing “Seventeenth Century Judicial
Coercion”).
16. THEODORE F.T. PLUCKNETT, A CONCISE HISTORY OF THE COMMON LAW 131 (Little, Brown and Co.,
5th ed. 1956) (citation omitted); see also WILLIAM FORSYTH, HISTORY OF TRIAL BY JURY 149–50 (The
Lawbook Exchange, Ltd., 1994) (1852) (discussing attaints and new trials); id. at 199 (“[I]n old times a
verdict was sometimes taken from eleven, if they agreed, and in that case the refractory juror was
committed to prison.”).
256
THE GEORGETOWN LAW JOURNAL
[Vol. 97:251
Additionally, even while deliberating, the jury was “prohibited from having
meat, drink, or fire, candle-light only excepted.”17 And that threat was considered moderate. The prior “maxim and . . . old custom” was to enforce the
prohibition on food and drink throughout the trial as well.18
Although these threats of punishment illustrate a different view about acceptable levels of potential juror coercion, they were rarely administered.19 These
practices were abandoned as juries relied more on lawyers and witnesses to
present evidence and “it became obvious that a ‘wrong’ decision was probably
due to an honest error in judging the facts, not dishonesty on the part of the
jurors.”20 That is, both courts and society came to understand that evidence at
trial rarely yielded a clear-cut answer. Reasonable jurors might differ in their
interpretations or make mistakes in their assessments. Thus, while there was
initially little concern with pushing the jury toward arriving at a verdict, these
coercive practices were curtailed as the realities of the adversarial process were
acknowledged. However, the idea that starving jurors or threatening imprisonment might lead to coerced votes does not appear to have been prevalent.
Today, a judge may not instruct a jury in a way that suggests that it is
required to reach a verdict;21 “where a judge’s interaction with a jury somehow
suggests the judge is informing jurors to heed the majority at all costs before
they have rendered a final verdict, such judicial coercion will trigger a reversal.”22 That type of instruction puts the judge’s thumb on the scale in favor of
the majority faction in the split jury; it is a message from the judge that the need
for a verdict is more important than the arguments of the minority.23 Such a
communication is likely to be particularly coercive to jurors in light of its
source:
[The trial judge’s] privilege of comment in order to give appropriate assistance to the jury is too important to be left without safeguards against abuses.
The influence of the trial judge on the jury is necessarily and properly of great
17. FORSYTH, supra note 16, at 201 (internal quotation marks omitted).
18. Id. Interestingly enough, Forsyth asserted that this was not intended as a means of pressuring the
jury; the practice was intended to combat “the propensity of our ancient ancestors to indulge in excess
at their meals” and the concern that if jurors “had access when impaneled to food and drink, [they
would] become incapacitated from a due discharge of their duty.” Id. at 201–02.
19. See JAMES OLDHAM, TRIAL BY JURY: THE SEVENTH AMENDMENT AND ANGLO-AMERICAN SPECIAL
JURIES 63 (2006) (“The punishment was so severe that the procedure was almost never successfully
invoked.”).
20. VALERIE P. HANS & NEIL VIDMAR, JUDGING THE JURY 28 (1986); see also OLDHAM, supra note 19, at
63 (noting that jurors could not be fined for verdicts against the evidence after 1670).
21. See Jenkins v. United States, 380 U.S. 445, 446 (1965).
22. John F. Decker, Post-Instruction Issues: Jury Deliberations and Verdict, 34 LOY. U. CHI. L.J.
569, 589 (2003).
23. See People v. Santiago, 439 N.E.2d 984, 997–98 (Ill. App. Ct. 1982) (“Such a verdict cannot be
said to have been reached without improper prodding from the trial court and should not be allowed to
stand.”).
2008]
UNANIMOUS CRIMINAL JURY VERDICTS
257
weight and his lightest word or intimation is received with deference, and
may prove controlling.24
Sometimes impermissible coercion is easy to spot: “we will do this [deliberation] until you reach a verdict”;25 “[y]ou have got to reach a decision in this
case”;26 “there [i]s no need of sending [the court] any notes that [the jury] can’t
agree, because you are going to stay here for a long time.”27 Yet, coercion is not
always verbal. One twentieth-century trial judge required the jury to deliberate
while the heat was off in the building.28 Another required the jury to deliberate
all night.29
While aggressive and robust discussion in the jury room is a desirable feature
of the process,30 coercion from the judge should be avoided, and a jury’s verdict
should be free of outside influence:31
It is not hard for anyone to understand that in cases of deliberative group
decisions a coercive force naturally exists when those in disagreement must
deal face-to-face with those of opposite persuasion. It is not whether the
charge supplies coercion, for that element is already present from a desire for
a decision and disagreement as to it. The issue in all these cases is whether the
instruction would objectively appear to force a juror to abandon his honest
conviction as a pure accommodation to the majority of jurors or the court.32
Arizona employs a workable standard to address these coercion concerns: “The
test of coerciveness is whether the trial court’s actions or remarks, viewed in the
totality of circumstances, displaced the independent judgment of the jurors.”33
The Arizona test places appropriate emphasis on avoiding judicial interference
with deliberations that risks tainting the jury’s verdict. In order to achieve this
result, the proper approach for analyzing proposals to deal with hung juries is to
24. Quercia v. United States, 289 U.S. 466, 470 (1933) (internal quotation marks omitted).
25. United States v. Jones, 504 F.3d 1218, 1219 (11th Cir. 2007) (per curiam).
26. Jenkins, 380 U.S. at 446.
27. Jones, 504 F.3d at 1219.
28. Mead v. City of Rickland Ctr., 297 N.W. 419, 421 (Wis. 1941).
29. Commonwealth v. Moore, 157 A.2d 65, 70 (Pa. 1959) (no inappropriate coercion despite
requiring deliberations from 7:08 p.m. to 6:10 a.m.); see also SAUL M. KASSIN & LAWRENCE S.
WRIGHTSMAN, THE AMERICAN JURY ON TRIAL: PSYCHOLOGICAL PERSPECTIVES 192 (1988).
30. See Jason D. Reichelt, Standing Alone: Conformity, Coercion, and the Protection of the Holdout
Juror, 40 U. MICH. J.L. REFORM 569, 615 (2007) (“The jury deliberation process will never—and should
never—be a place free from heated discussion, spirited debate, and the use of myriad techniques to
persuade.”).
31. See, e.g., Allen v. United States, 164 U.S. 492, 501 (1896) (“The very object of the jury system is
to secure unanimity by a comparison of views, and by arguments among the jurors themselves.”); State
v. McCrimmon, 927 P.2d 1298, 1303 (Ariz. 1996) (“Under the circumstances of this case, the private
meeting between judge and juror was antithetical to a juror’s responsibility to make independent
decisions.”).
32. Winters v. United States, 317 A.2d 530, 532 (D.C. 1974).
33. State v. McCutcheon, 723 P.2d 666, 669 (Ariz. 1986).
258
THE GEORGETOWN LAW JOURNAL
[Vol. 97:251
define coercion in terms of our view of the deliberations process.
B. HUNG JURIES AND THEIR COSTS
Declaring a mistrial when the jury cannot agree unanimously comes at a price
if the prosecutor decides to retry the case. Difficulty in quantifying the frequency and costs of both mistrials and retrials, however, has hindered the
reform discussion for dealing with divided juries. Administrative expenses
should not trump fairness considerations in the criminal justice system, but the
costs of the system are a consideration when trying to determine the extent to
which the unanimity requirement remains beneficial to the process. Yet, in part
because of the measurement difficulty, the costs of hung juries have failed to
drive expansive reform of either the unanimity requirement or anti-deadlock
instructions.
Kalven and Zeisel found that approximately five percent of state criminal
juries failed to reach unanimous verdicts.34 More recently, Jason Reichelt cited
studies finding hung juries in approximately three percent of federal criminal
cases between 1980 and 1997.35 The modern rate in state courts is about six
percent.36 The statistics also suggest that hung juries occur more frequently in
urban areas, and, interestingly enough, that some individual states experience
much higher rates than the national average.37 These numbers nonetheless
suggest that the vast number of criminal trials end in verdicts.
Even in the face of fairly consistent evidence that hung-jury mistrials are
infrequent, proponents of aggressive anti-deadlock reforms frequently emphasize the costs of an individual mistrial.38 As one Arizona trial court judge put it,
even if, contrary to this writer’s experience and those of many fellow trial
judges, the rate of mistrial due to a deadlocked jury is relatively low, the
substantial direct and indirect economic, human, and social costs involved in
one trial, let alone two or more in the same case, should be avoided.39
This strategy for posing the argument is common. Despite the fact that mistrials
are not that frequent, the magnitude of the costs in each individual case is
34. HARRY KALVEN, JR. & HANS ZEISEL, THE AMERICAN JURY 461 (1966).
35. See Reichelt, supra note 30, at 582 (citing Neilson & Winter, supra note 1, at 2).
36. See id.
37. See id. at 582 nn.74–75; Thomas L. Grisham & Stephen F. Lawless, Note, Jurors Judge Justice:
A Survey of Criminal Jurors, 3 N.M. L. REV. 352 (1973) (finding nearly one quarter of New Mexico
juries deadlocked).
38. See, e.g., Michael H. Glasser, Letting the Supermajority Rule: Nonunanimous Jury Verdicts in
Criminal Trials, 24 FLA. ST. U. L. REV. 659, 675 (1997); Robert F. Holland, Improving Criminal Jury
Verdicts: Learning from the Court-Martial, 97 J. CRIM. L. & CRIMINOLOGY 101, 139 (2006); Ethan J.
Leib, Supermajoritarianism and the American Criminal Jury, 33 HASTINGS CONST. L.Q. 141, 170
(2006); Jere W. Morehead, A “Modest” Proposal for Jury Reform: The Elimination of Required
Unanimous Jury Verdicts, 46 U. KAN. L. REV. 933, 935 (1998) (“When a jury is unable to reach such a
verdict, a mistrial wastes both time and resources . . . .”).
39. Dann, supra note 2, at 1270.
2008]
UNANIMOUS CRIMINAL JURY VERDICTS
259
magnified and emphasized.
In fairness, these costs accrue to all parties involved, especially where the
government opts to retry the case. The defendant faces the uncertainty of
pending criminal proceedings, and the financial costs of maintaining counsel
must be borne by the defendant or the government. If incarcerated, the defendant bears all the burdens concomitant with that deprivation of liberty as well.
Both the court and the prosecutors face the costs of a new trial, including their
time, court reporters, witness travel, and costs of impaneling another jury.
Judges and attorneys also face the opportunity costs of not dealing with other
matters that they might have otherwise scheduled. Society bears some of these
burdens as well through tax bills, the increased number of trials at which
citizens will be called to serve as jurors, and any detrimental effects of these
burdens on the administration of justice for public protection.
Many of these costs, while intuitive, are broad and difficult to quantify.40
Discussing them in the abstract is unlikely to persuade people who disagree.
And, for many people, the fundamentals of criminal justice are too important to
be trumped by cost considerations.41 Even if money might be saved at the trial
level if there were fewer hung juries, additional costly appellate review would
be necessary to ferret out the actual coercion that takes place from instructing
juries more aggressively to reach verdicts.42 Therefore, while cost concerns are
readily invoked in favor of more aggressive methods for resolving deadlock,
they have thus far failed to carry the day.
II. WHY UNANIMITY?
Unanimous jury verdicts are required in federal felony trials,43 and most
states follow the same rule.44 This preference for unanimity exists in tension
with the need to avoid coercing jurors to acquiesce to a verdict with which they
do not agree. If the jury cannot agree, then the trial ends without a verdict; if the
judge pushes the jurors too hard toward agreement, any resulting verdict must
be reversed. While the unanimity requirement and the anti-coercion doctrine
impose (somewhat vague) costs resulting from hung-jury mistrials, these costs
seem to be outweighed by the value we derive from the unanimous-verdict
system. This Part examines the unanimity requirement in order to determine the
actual benefits that should be emphasized.
40. See, e.g., id.; Edward P. Schwartz & Warren F. Schwartz, And So Say Some of Us . . . What To
Do When Jurors Disagree, 9 S. CAL. INTERDISC. L.J. 429, 437 (2000) (referring to the “particularly
compelling” “costs associated with a second trial” without describing or quantifying them, and stating
that “[t]he budgetary constraints under which prosecutors operate and the terrible cost of litigation for
criminal defendants both support a policy of trying to limit the costs of the criminal justice system”).
41. See, e.g., Reichelt, supra note 30.
42. See, e.g., AMERICAN BAR ASSOCIATION PROJECT ON MINIMUM STANDARDS FOR CRIMINAL JUSTICE,
STANDARDS RELATING TO TRIAL BY JURY § 5.4, at 155 (May 1968 draft) [hereinafter ABA JURY DEADLOCK
INSTRUCTIONS].
43. See FED. R. CRIM. P. 31(a).
44. See Reichelt, supra note 30, at 575.
260
THE GEORGETOWN LAW JOURNAL
[Vol. 97:251
“It is very difficult to know exactly what is meant by the claim that
the . . . unanimity rule is essential for public acceptance of the legitimacy of
jury verdicts.”45 The precise origin of the rule is unclear, and traditional
historical rationales do not provide forceful reasons for requiring unanimous
verdicts.46 Additionally, unanimity does not improve trials’ truth-seeking function all that much.47 Similar results could be achieved by requiring verdicts by
supermajority, which would reduce the costs of mistrials caused by the “holdout
juror.” Nonetheless, the unanimity requirement adds value to the criminal
justice system:
A rule which insists on unanimity furthers the deliberative process by requiring the minority view to be examined and, if possible, accepted or rejected by
the entire jury. The requirement of jury unanimity thus has a precise effect on
the fact-finding process, one which gives particular significance and conclusiveness to the jury’s verdict.48
The requirement structures deliberations in ways that are consistent with our
democratic ideals and enhances the sense of legitimacy that attaches to criminal
verdicts.
A. HISTORY OF THE UNANIMITY REQUIREMENT
The earliest record of a unanimous jury verdict dates back to 1367.49 There
was a widespread preference for unanimous verdicts by the late fourteenth
century,50 and it was “an accepted feature of the common-law jury by the 18th
century.”51 In Apodaca v. Oregon, the Supreme Court proffered four potential
historical explanations for the unanimity requirement. First, unanimity may
have been necessary because of the lack of other procedural safeguards in place
at the time.52 Second, during a trial by compurgnation,53 compurgators were
45. Schwartz & Schwartz, supra note 40, at 451.
46. See id. (“Our modest conclusion then, is that to view the current two-way unanimity rule as
having passed the test of time, such that it should be retained, is to ignore the current realities that cast
so much doubt upon its present viability.”).
47. See Glasser, supra note 38, at 671–76.
48. United States v. Lopez, 581 F.2d 1338, 1341 (9th Cir. 1978).
49. Jeremy Osher, Note, Jury Unanimity in California: Should It Stay or Should It Go?, 29 LOY.
L.A. L. REV. 1319, 1326 (1996).
50. Id. at 1326–27; see also James B. Thayer, The Jury and Its Development, 5 HARV. L. REV. 295,
296 (1892) (“The rule of unanimity in giving a verdict was by no means universal at first.”).
51. Apodaca v. Oregon, 406 U.S. 404, 408 (1972).
52. See id. at 407 n.2. Although that reasoning might help explain the intuitive appeal of unanimity,
it also highlights the circular nature of the preference—unanimity only adds an additional safeguard if,
in fact, it leads to more accurate verdicts.
53. The practice of trial by compurgnation is a historical antecedent to the contemporary jury trial.
The number of compurgators varied by the crime charged: an accused would first profess innocence and
then seek to bring a sufficient number of compurgators before the court to vouch for his or her
trustworthiness. See HANS & VIDMAR, supra note 20, at 24; Morris B. Hoffman, The Case for Jury
Sentencing, 52 DUKE L.J. 951, 960 n.30 (2003).
2008]
UNANIMOUS CRIMINAL JURY VERDICTS
261
added to the initial twelve jurors until one party had twelve people supporting
his position.54 A verdict with twelve supporters was required, but unanimity was
not. Although trial by compurgnation was abandoned, some have argued that
the unanimity requirement later developed in connection with the preference
that twelve votes support any verdict.55
The third potential explanation for the unanimity preference is that “the
medieval mind assumed there could be only one correct view of the facts,”
which meant that the only correct verdict was a unanimous one.56 Finally, some
believed that a unanimous decision by a legislature was required in order to
bind the community and the same rule of decision was necessary to render
judgment against an individual.57 However, if the Apodaca Court’s discussion
made anything clear, it was that the precise origin of the unanimity rule may be
unattainable.58 The Court admitted as much: “The origins of the unanimity rule
are shrouded in obscurity.”59
More importantly, none of these potential origins of the unanimity requirement is particularly compelling today. Gone are compurgators and the assumption that there is only one correct view of the evidence at a trial. Although
safeguarding defendants’ rights is an important function of the system, both the
Constitution and statutes dating back to the nation’s birth created a criminal
procedure system that, while certainly improvable, greatly exceeds medieval
standards.60 Moreover, there is also reason to doubt that the unanimity requirement adds much to the truth-seeking function of criminal trials in the first
place.61 Finally, in most other public contexts, we have distanced ourselves
from the overall view that unanimity is required to bind members of the
community.62 The general preference for majority-driven decisions is evident in
54. See Apodaca, 406 U.S. at 407 n.2. Although not cited by the Court, William Forsyth expressed a
similar opinion in 1852. He opined that the origin of the unanimity rule came from the procedural
requirement in the assize court that, in order to determine whether property was wrongfully possessed,
“it was necessary that twelve jurors . . . agree.” See FORSYTH, supra note 16, at 197. As Forsyth pointed
out, however, this only meant that additional jurors were added to the panel until at least twelve of them
agreed. See id.
55. See Apodaca, 406 U.S. at 407 n.2. The historical basis for the preference that juries be composed
of twelve is similarly murky. See Williams v. Florida, 399 U.S. 78, 88–90 (1970) (“In short, while
sometime in the 14th century the size of the jury at common law came to be fixed generally at 12, that
particular feature of the jury system appears to have been a historical accident, unrelated to the great
purposes which gave rise to the jury in the first place.”).
56. See Apodaca, 406 U.S. at 407 n.2.
57. See id.
58. See Schwartz & Schwartz, supra note 40, at 444 (“The consensus among historians is that the
choice of a unanimity rule was a ‘historical accident.’”).
59. Apodaca, 406 U.S. at 407 n.2.
60. See generally AKHIL REED AMAR, THE CONSTITUTION AND PROCEDURE: FIRST PRINCIPLES xii–vx
(1997); PETER CHARLES HOFFER, LAW AND PEOPLE IN COLONIAL AMERICA (1992).
61. See Glasser, supra note 38, at 671–76 (discussing why behavioral differences between unanimous and nonunanimous juries “fail to indicate the unanimity rule’s superiority over the majority
rule”).
62. See Akhil Reed Amar, Reinventing Juries: Ten Suggested Reforms, 28 U.C. DAVIS L. REV. 1169,
1189 (1995).
262
THE GEORGETOWN LAW JOURNAL
[Vol. 97:251
the Constitution itself.63
Nonetheless, the Framers—who were somewhat closer in time to the origins
of unanimity—debated putting the requirement directly into the Constitution.
James Madison included it in the draft of the Sixth Amendment that he
proposed to the House of Representatives, which would have “the requisite of
unanimity for conviction.”64 That phrase was ultimately removed after a congressional conference was convened. After reviewing the legislative history of the
Amendment, the Supreme Court found the “more plausible” inference to be that
the deletion was “intended to have some substantive effect.”65 Yet, even though
it was ultimately omitted from the Constitution, unanimity quickly acquired
general acceptance “as Americans became more familiar with the details of
English common law and adopted those details in their own colonial legal
systems.”66
Widespread usage notwithstanding, the Due Process Clauses does not require
unanimous jury verdicts.67 Although few states—either then or now—have
departed from the rule, in 1972 the Supreme Court affirmed guilty verdicts in
state criminal trials based on votes in favor of conviction of ten to two, eleven
to one,68 and nine to three.69 The Court rejected due process and Equal
Protection claims, as well as the argument that the presence of dissenting jurors
indicated that there must have been reasonable doubt:
Of course, the State’s proof could perhaps be regarded as more certain if it
had convinced all 12 jurors instead of only nine; it would have been even
more compelling if it had been required to convince and had, in fact,
convinced 24 or 36 jurors. But the fact remains that nine jurors—a substantial
majority of the jury—were convinced by the evidence. In our view disagreement of three jurors does not alone establish reasonable doubt, particularly
when such a heavy majority of the jury, after having considered the dissenters’ views, remains convinced of guilt. That rational men disagree is not in
itself equivalent to a failure of proof by the State, nor does it indicate
infidelity to the reasonable-doubt standard.70
63. See John O. McGinnis & Michael B. Rappaport, Our Supermajoritarian Constitution, 80 TEX. L.
REV. 703, 710–11 (2002); see also Brett W. King, The Use of Supermajority Provisions in the
Constitution: The Framers, The Federalist Papers and the Reinforcement of a Fundamental Principle,
8 SETON HALL CONST. L.J. 363, 369–87 (1998).
64. Apodaca, 406 U.S. at 409 (quoting 1 ANNALS OF CONG. 435 (1789)).
65. Id. at 410 (discussing prior Sixth Amendment interpretation in Williams v. Florida, 399 U.S. 78
(1970)).
66. Id. at 408 n.3. Late eighteenth-century constitutions in North Carolina, Pennsylvania, Vermont,
and Virginia expressly required unanimity. Id. Nine other states set up trials “according to the course of
common law.” See id. The Court noted, however, that “unanimity had not been the invariable practice
in 17th-century America, where majority verdicts were permitted in the Carolinas, Connecticut, and
Pennsylvania.” Id.
67. See, e.g., Johnson v. Louisiana, 406 U.S. 356, 359 (1972).
68. Apodaca, 406 U.S. at 414.
69. Johnson, 406 U.S. at 365.
70. Id. at 362.
2008]
UNANIMOUS CRIMINAL JURY VERDICTS
263
The Court’s indifference to less-than-unanimous state criminal verdicts, as well
as its professed inability in Apodaca to point to the historical origin of the
unanimity requirement, suggest that today’s preference for unanimity should be
assessed directly on its merits in terms of any benefits that it currently provides.71
B. ALTERNATIVE RULES OF DECISION: FOCUSING ON THE DELIBERATIVE PROCESS
A common intuition about the criminal justice system is that unanimous
verdicts yield the correct result at trial more often than other rules of decision.72
Simply stated, if all the jurors agree instead of just some of them, the verdict
seems more likely to be correct. If true, juror coercion might result in “fake” or
insincere unanimity where the judge (or majority faction in the jury) avoids a
mistrial only by coercing the minority faction to join the majority in order to
achieve a verdict. Surprisingly to some, however, this intuition about the
unanimity requirement is misguided. There is little empirical evidence that
requiring unanimity for a verdict—as opposed to a majority or supermajority of
the jurors—affects the correctness of the outcome at the trial.
Yet, while arriving at the correct result is obviously a key concern, it is
neither the sole consideration nor the primary benefit derived from the unanimity requirement. One of the real values of unanimity is that it improves the tone
and quality of the deliberation. The link between verdict accuracy and the
unanimity requirement should be further investigated, but alternatives for handling split juries should be assessed in terms of their effect on the deliberative
process.
1. Rules of Decision and Verdict Accuracy
According to one well-known study, “[t]he effect of decision rule on verdict
71. Schwartz and Schwartz also argue that contemporary realities render the historical justifications
for the unanimity requirement largely moot. See Schwartz & Schwartz, supra note 40, at 451. Their
position is that the two-way unanimity rule is in “tension” with the “fair-cross-section ideal,” see infra
notes 125–32 and accompanying text, and functions as a “hinder[ance on] the ability of juries to render
verdicts.” See Schwartz & Schwartz, supra note 40, at 451. However, characterizing the unanimity
requirement as an unnecessary obstacle, without attempting to quantify the costs it may impose, does
little to advance this debate.
Schwartz and Schwartz would likely concede that the magnitude of this obstacle is “relatively minor”
in a localized setting where the population is more homogenous. See id. (noting that “the unanimity
requirement posed a relatively minor obstacle to the functioning of homogenous juries of local elites”).
More importantly, even if unanimity is properly viewed as an “obstacle” in the process of reaching
criminal verdicts, it may well be an appropriate feature in our modern system. Schwartz and Schwartz
present little, if any, evidence that difficulty reaching verdicts has become an overly cumbersome part
of the process, and in most jurisdictions, hung juries occur around five percent of the time. See supra
text accompanying notes 34–37. Schwartz and Schwartz are not necessarily incorrect in their views, but
the structure of their argument illustrates the rather static nature of the discussion on this topic. A more
rigorous attempt to quantify and discuss the costs of hung juries is necessary.
72. See, e.g., Richard A. Primus, When Democracy Is Not Self-Government: Toward a Defense of the
Unanimity Rule for Criminal Juries, 18 CARDOZO L. REV. 1417, 1432 (1997) (“One of the primary
virtues of the unanimity rule is that it minimizes the potential for incorrect verdicts.”)
264
THE GEORGETOWN LAW JOURNAL
[Vol. 97:251
accuracy is not dramatic.”73 As another author put it more recently, “[m]ost
agree that that the outcomes of verdicts do not significantly vary with decision
rule.”74 Trial outcomes are not greatly affected by different rules of decision
because, about ninety percent of the time, the verdict favored by the majority of
the jurors at the outset of deliberations is the final verdict in the case.75 If the
same trial result is likely to be achieved through a lesser vote threshold,
majority or supermajority rules of decision would be cheaper because there
would be fewer hung juries.76
Without question, there are merits to a majoritarian rule of decision for jury
deliberations. Chiefly, the danger that a group of jurors will coerce a “holdout”
to change his vote is decreased when only a majority must agree. In terms of
reaching a verdict, there is simply no need for the majority jurors to try to
convince the dissenters that their position is correct. This type of intra-jury
coercion, while separate from the judge-based coercion that is the subject of this
Note, is a weakness of the unanimity requirement.77 By reducing the size of the
faction required to arrive at a verdict, the majoritarian rule of decision “does not
suppress conflict” and “tolerates dissent with open arms, leading to a more open
society.”78
There is also an arithmetical argument in support of a majority rule of
decision. Under Condorcet’s Jury Theorem,79 a majority is likely to arrive at the
correct result if one assumes that each juror’s vote is independent and that the
probability that each juror will vote for the correct verdict is greater than fifty
73. REID HASTIE, STEVEN D. PENROD & NANCY PENNINGTON, INSIDE THE JURY 228 (1983); see also id.
(“[M]easures of accuracy on facts and the law per se are not affected by decision rule.”). However,
while noting concerns relating to their sampling, the authors cautioned that “an examination of juries
with equivalent starting points supports the conclusion that juries in majority decision rule conditions as
compared to the unanimous rule are more likely to reach improper, first degree murder verdicts [in their
study conditions].” Id.
74. Leib, supra note 38, at 144.
75. Dennis J. Devine et al., Jury Decision Making: 45 Years of Empirical Research in Deliberating
Groups, 7 PSYCHOL. PUB. POL’Y & L. 622, 690 (2001) (“This finding has been observed in several field
studies.”).
76. See, e.g., Neilson & Winter, supra note 1, at 2. The significance of subsequent trial convictions
following hung-jury mistrials provides an interesting nuance to the relationship between verdict
accuracy and the unanimity requirement. Some have suggested that the final disposition of the
case—not the verdict in an individual trial—is the proper frame of reference. Id. From that perspective,
the unanimity requirement may increase the ultimate accuracy of the criminal justice system where
retrials are conducted until verdicts are reached. See id. (“When retrials are taken into account, there
ultimately is no such thing as a hung jury as every case reaches an eventual verdict.”). Schwartz and
Schwartz argue that a conviction at a retrial following a hung-jury mistrial is simply a mechanism
“employed to achieve authoritative outcomes in the absence of unanimity.” Schwartz & Schwartz,
supra note 40, at 434.
77. Leib, supra note 38, at 152.
78. Id. at 154–55.
79. See generally MARQUIS DE CONDORCET, Essay on the Application of Mathematics to the Theory of
Decision-Making (1785), in CONDORCET: SELECTED WRITINGS 33 (Keith Michael Baker ed., 1976).
2008]
UNANIMOUS CRIMINAL JURY VERDICTS
265
percent.80 Condorcet believed that, when these “stringent and somewhat unrealistic assumptions”81 are met, a simple majority was a high enough threshold to
arrive at the correct result. Applying Condorcet’s theorem, a majority rule of
decision might satisfy concerns about the accuracy of the criminal justice
process without the risk of intra-jury coercion described above.
Another alternative to the unanimity rule is requiring a supermajority of the
jury to agree.82 This is the rule in military tribunals, where anything less than
the required supermajority in favor of conviction results in an acquittal.83 In
many ways, this approach is a compromise between majoritarian and unanimous decision rules.84 Defendants are more likely to be acquitted under the
military’s system; a critical mass of dissenting jurors will result in an acquittal
rather than a hung jury. On the other hand, an extremely small minority cannot
prevent a verdict from being entered, which addresses “holdout juror” concerns.85 Convictions by supermajority verdicts would probably be deemed more
binding and legitimate than simple-majority verdicts because of the intuition
that the increased voting threshold is more likely to lead to the correct verdict.
Finally, relative preferences for all of these factors can be expressed in the size
of the supermajority that is ultimately required to arrive at a verdict.86
From this brief discussion, it is clear that the unanimity requirement is not
universally superior to alternative rules of decision for reaching jury verdicts.
Even England, ostensibly the historical origin of the American preference for
unanimity, now requires ten votes from a twelve-person jury for a conviction.87
No tragedies have befallen the societies permitting non-unanimous jury verdicts. If unanimity is not mandated by the Constitution, does it make sense that
almost no jurisdictions have experimented with other rules of decision? Although there are potential benefits from other decision rules, one of the key
80. Nicholas Quinn Rosenkranz, Condorcet and the Constitution: A Response to The Law of Other
States, 59 STAN. L. REV. 1281, 1284 (2007) (responding to Cass R. Sunstein & Eric Posner, The Law of
Other States, 59 STAN. L. REV. 131 (2006)).
81. Cass R. Sunstein, Group Judgments: Statistical Means, Deliberation, and Information Markets,
80 N.Y.U. L. REV. 962, 973 (2005).
82. See Holland, supra note 38, at 141. For a broader discussion of the merits of supermajority rules,
see McGinnis & Rappaport, supra note 63; John O. McGinnis & Michael B. Rappaport, Supermajority
Rules as a Constitutional Solution, 40 WM. & MARY L. REV. 365 (1999); John O. McGinnis & Michael
B. Rappaport, The Constitutionality of Legislative Supermajority Requirements: A Defense, 105 YALE
L.J. 483 (1995).
83. Holland, supra note 38, at 125.
84. Leib, supra note 38, at 158.
85. See, e.g., Reichelt, supra note 30, at 570 (“Whenever a jury of twelve people cannot reach a
unanimous verdict on a vote of 11-1, the immediate assumption is that there must be something wrong
with the holdout or that the dissenter was simply being stubborn.”).
86. For one interesting proposal along these lines, see Glasser, supra note 38, at 676–77 (“The
number of assenting jurors required to render a verdict should vary according to the gravity of the
charge or severity of the punishment.”).
87. See Schwartz & Schwartz, supra note 40, at 445 (noting countries whose legal systems have
British roots but do not require unanimous jury verdicts and arguing that “[i]f one looks beyond the
countries that inherited the British tradition, unanimity is virtually unknown”).
266
THE GEORGETOWN LAW JOURNAL
[Vol. 97:251
factors that make the unanimity requirement worthwhile is its effect on jury
deliberations.
2. The Effect of Unanimity on Jury Deliberations
While departing from the unanimity requirement may decrease the costs of
mistrials without affecting the ability of the jury-trial process to arrive at correct
outcomes, these are not the sole criteria for assessing the unanimity requirement
or the criminal justice process. “[T]he Supreme Court has time and time again
affirmed its commitment to the process, not just the outcome, of deliberation.”88
Even if the unanimity requirement does not markedly improve the correctness
of each trial result, it affects the actual deliberations leading up to the verdict.89
This is one of the most important benefits of the unanimity requirement, and
potential impact on deliberations should be one of the criteria for assessing
anti-deadlock instructions.
Concerns relating to the quality of deliberations are important because of our
interest in maintaining the procedures through which the system is administered.90 Consider this point in connection with ten hypothetical criminal cases
where the defendant is, in reality, guilty as charged. A jury process resulting in
ten convictions for those ten cases would meet criteria relating to arriving at the
correct result, but several other factors bear on our overall satisfaction concerning the process by which the system pronounces this guilt and condemns the
offender.
There can be little doubt that the deliberation process is affected by the
unanimity requirement:
A shift to majority rule appears to alter both the quality of the deliberative
process and the accuracy of the jury’s judgment. In the end, the data indicates
that unanimity assures viewpoint diversity better than majority rule. . . . The
heart of the problem is that nonunanimous decisionmaking constricts the flow
of information. Researchers have discovered that once a vote indicates that
the required majority has formed, deliberations halt in a matter of minutes.91
88. KASSIN & WRIGHTSMAN, supra note 29, at 202; see also Note, Public Disclosures of Jury
Deliberations, 96 HARV. L. REV. 886, 890 (1983) (“The precise value of throwing together in a jury
room a representative cross-section of the community is that a just consensus is reached through a
thoroughgoing exchange of ideas and impressions.”).
89. KASSIN & WRIGHTSMAN, supra note 29, at 201 (citing study results reflecting “substantial”
differences in the “extent to which [unanimous and majority-rule juries] fulfill the ideals of deliberation”).
90. See, e.g., State v. Andriano, 161 P.3d 540, 552 (Ariz. 2007) (“The very object of the jury system
is to secure unanimity by a comparison of views, and by arguments among the jurors themselves.”).
91. Kim Taylor-Thompson, Empty Votes in Jury Deliberations, 113 HARV. L. REV. 1262, 1272–73
(2000); see also Primus, supra note 72, at 1445 (“To the extent that dialogue and deliberation are
independently valuable, unanimity is an excellent decision rule, because requiring unanimity forces
decision makers to continue their discussions past the point where a less stringent decision rule would
permit the process to end.”).
2008]
UNANIMOUS CRIMINAL JURY VERDICTS
267
One of the most comprehensive empirical studies of jury deliberations conducted since Kalven and Zeisel92 found that the rule of decision—unanimity
compared to majoritarianism—affected the nature of jury deliberations in six
ways.93 The authors found that when majority-rule juries are used in criminal
trials: (1) it takes less time to reach a verdict; (2) votes are taken earlier in the
process so that factions and dissenters are identified and potentially singled out
for coercion before much deliberation takes place; (3) smaller factions are less
likely to voice dissent; (4) jurors join larger factions more quickly; (5) holdout
jurors are more likely to remain entrenched; and (6) verdict-driven94 deliberation style is more frequently adopted, and less effort is made to marshal the
evidence before expressing verdict preferences.95
In light of evidence that unanimity does not markedly improve the correctness of verdicts at trial, the rule’s effects on deliberations provide the most
concrete support for maintaining the requirement.96 Other rules of decision fail
to maintain the same incentives for thorough and vigorous deliberations, which
is why changing the jury’s voting requirement is not the best approach to
dealing with the costs and other problems resulting from deadlocked juries. It is
also important that alternatives for handling split juries be assessed in terms of
their likely impact on the deliberation process. Although this seems obvious as a
general matter, the research on differences in deliberation when the rules of
decision are varied helps to highlight the specific attributes of deliberation that
matter most.
C. SYMBOLIC LEGITIMACY AND THE UNANIMITY REQUIREMENT
A unanimous criminal jury verdict affixes a stamp of legitimacy to the
outcome of the criminal process. This symbolic legitimacy is another factor in
the preference for the unanimity requirement,97 and potential impact on that
legitimacy should be considered in determining how to handle deadlocked
juries. One component of this legitimacy is the extent to which the trial process
is perceived as being consistent with democratic ideals and expression of the
92. KALVEN & ZEISEL, supra note 34.
93. See HASTIE ET AL., supra note 73, at 173–74 (citing Kalven and Zeisel).
94. The authors of the study defined two “styles of deliberation” to describe what they observed.
“Verdict-driven” deliberations usually start with a preliminary vote, the discussion focuses on each
juror’s preferred verdict, and polls are frequently taken. See id. at 163. In “evidence-driven” deliberations, public votes are taken later, individuals do not take strong positions regarding the verdict prior to
the votes, and jurors examine the evidence “in an effort to agree upon the single most credible story that
summarizes the events at the time of the alleged crime.” See id.
95. See id. at 173.
96. See Taylor-Thompson, supra note 91, at 1316 (“[T]o the extent that the process is more
representative and enhances genuine deliberation, decisions . . . are good approximations of substantive
justice.”).
97. Newton N. Minow & Fred H. Cate, Who Is an Impartial Juror in an Age of Mass Media?, 40
AM. U. L. REV. 631, 655 (1991) (“The jury function is largely symbolic . . . .”); see also Primus, supra
note 72, at 1439 (recognizing that commentators have viewed unanimity “as the truly legitimate rule”).
268
THE GEORGETOWN LAW JOURNAL
[Vol. 97:251
community’s voice.98 These general perceptions of the process are enhanced by
the unanimity requirement’s impact on deliberations,99 as well as a somewhat
misguided view of the “reasonable cross-section requirement” for juries that is
discussed below. In order to enhance the process-oriented value of the system,
divided juries should be dealt with in a way that maximizes the symbolic virtue
we associate with a unanimous criminal jury verdict.100
Modern juries serve at least two functions that enhance their status within our
civic framework. First, “justice, all things considered, provides the ideal to
which the jury aspires.”101 To solidify the jury’s role as an arbiter of justice, the
Supreme Court has carefully carved out a position for it as a buffer between
criminal defendants and both the “corrupt or overzealous prosecutor” and the
“compliant, biased, or eccentric judge.”102 Nullification is a popularly recognized—but not necessarily legally encouraged—part of the jury’s role. Paul
Butler, for example, challenged black jurors to actively engage in this function.103
Second, beyond the pursuit of justice, juries provide individuals with an
opportunity to engage in participatory democracy to a greater extent than in
other areas of civic life.104
The American jury is the quintessential deliberative democratic body. Courts
and commentators have on numerous occasions affirmed the deliberative ideal
that the jury is supposed to embody—“face-to-face deliberation in which
juries [a]re asked to bracket narrow loyalty to their own group and join with
98. Nancy J. King, The Effects of Race-Conscious Jury Selection on Public Confidence in the
Fairness of Jury Proceedings: An Empirical Puzzle, 31 AM. CRIM. L. REV. 1177, 1183 (1994) (“One of
the central findings of procedural justice researchers is that procedures, independent of verdicts and
sentences, influence the acceptance of criminal proceedings.”); Minow & Cate, supra note 97, at 655
(“[T]rials provide an apparently neutral means for legitimating the state’s power over its citizenry and
‘its claim of a monopoly over physical violence.’” (quoting J. Alexander Tanford, The Limits of a
Scientific Jurisprudence: The Supreme Court and Psychology, 66 IND. L.J. 137, 165 (1990))).
99. The legitimacy associated with criminal jury verdicts is impacted by myriad factors, but this
section focuses on democratic symbolism and public perceptions of the trial process.
100. O.J. Simpson’s criminal trial, which engendered a great deal of public criticism, undercuts the
idea that the jury system carries symbolic virtue. See Diane E. Courselle, Struggling with Deliberative
Secrecy, Jury Independence, and Jury Reform, 75 S.C. L. REV. 203, 204 (2005) (citing the Simpson trial
and other examples that serve as the bases for criticism of the jury system).
101. JAMES GOBERT, JUSTICE, DEMOCRACY, AND THE JURY 14 (2001).
102. See Duncan v. Louisiana, 391 U.S. 145, 156 (1968); see also Taylor v. Louisiana, 419 U.S. 522,
530 (1975) (“The purpose of the jury is to guard against the exercise of arbitrary power . . . .”);
ALFREDO GARCIA, THE SIXTH AMENDMENT IN MODERN AMERICAN JURISPRUDENCE: A CRIMINAL PERSPECTIVE
183 (1992) (“[C]ommunity participation enhances the fairness of a criminal trial by protecting against
prosecutorial or judicial excess.”).
103. See Paul Butler, Racially Based Nullification Power: Black Power in the Criminal Justice
System, 105 YALE L.J. 677, 714 (2005) (“In choosing [to vote against conviction], the juror makes a
decision not to be a passive symbol of support for a system for which she has no respect.”).
104. See GOBERT, supra note 101, at 104–05.
2008]
UNANIMOUS CRIMINAL JURY VERDICTS
269
others in search of norms whose power lies in the ability to persuade across
group lines.”105
Jury service requires people from all walks of life to gather together and decide
the fate of another member of their own community. Unlike the decentralized
legislative process or national electoral campaigns, jurors sit on the front line of
their decision and debate with each other directly.106 “[W]e cannot expect
voting rights to be intelligently exercised without effective participatory opportunities in more immediate spheres of communal life.”107 Jury service provides
just such an opportunity. Despite the fact that jurors vote to bind the rights of
another person—the defendant—rather than themselves, the act of coming
together with other citizens to deliberate provides a valuable lesson in public
service and civic participation.
The unanimity requirement enhances these functions of jury service. A single
dissenting juror can reign in the negative effect of a poor prosecutorial charging
decision or an unfair trial judge by forcing a mistrial.108 Similarly, the unanimity requirement attaches significance to every juror’s vote and prevents any
individual’s voice from being ignored before a verdict is entered against another
citizen.109 Individuals in the deliberation room are not ignored at trial as they
may be during public elections, and, unlike in most legislatures, they actively
participate in the process. These functions of the unanimity requirement foster
other civic virtues:110
[M]aintaining a decision rule that offers diverse representatives on the jury an
opportunity to vote their views and to affect the outcome seems the best hope
for maintaining the jury system’s legitimacy in the eyes of the public. To the
extent that the jury functions as a “school for civic duty” in which jurors learn
about the responsibilities of citizenship, unanimity is better positioned to
convey the message that the jury system demands thoughtful participation of
every citizen.111
All of these features help to form the basis for the stamp of legitimacy that
105. Jenia Iontcheva, Jury Sentencing as Democratic Practice, 89 VA. L. REV. 311, 346 (2003)
(citations omitted).
106. For a thorough discussion of the extent to which the unanimity requirement is consistent with
various components of formal deliberative democratic theory, see generally Primus, supra note 72.
107. AMY GUTMANN, LIBERAL EQUALITY 188 (1980).
108. See Butler, supra note 103, at 714 (noting that a black juror’s decision to vote not guilty will, at
least, result in a mistrial).
109. Taylor-Thompson, supra note 91, at 1263 (“Jury research conducted in the past two decades
reveals that eliminating the obligation to secure each person’s agreement on the verdict can result in
truncating or even eliminating jury deliberations.”).
110. See Glasser v. United States, 315 U.S. 60, 85 (1942) (“Our notions of what a proper jury is have
developed in harmony with our basic concepts of a democratic society and a representative government.”), superseded on other grounds by Bourjaily v. United States, 483 U.S. 171 (1987).
111. Taylor-Thompson, supra note 91, at 1316–17 (internal citation omitted).
270
THE GEORGETOWN LAW JOURNAL
[Vol. 97:251
attaches to verdicts rendered through this process.
Superficially, there is a contradiction in the assertion that requiring unanimous verdicts is consistent with democratic ideals because most decisions in
our political system are traditionally made according to majority or supermajority rules of decision.112 This criticism of the democracy-enhancing effect of the
unanimity requirement is overly focused on the procedural form of the rule.
“Fundamentally, the jury is, in Tocqueville’s phrase, a political institution not a
procedural one.”113 A system requiring seven votes for a conviction might
appear more democratic, but the unanimity requirement leads to a system of
deliberations that functions in a way that is more consistent with an ideal
participatory democracy. “While majority rule may indeed reflect what we
commonly encounter in a political context, its potential silencing of the voice of
difference in a legal context ultimately sets the wrong example and sells justice
short.”114 Moreover, “nonunanimity threatens to eliminate the voices of those
who have only recently secured the right to participate in the democratic
process.”115
In addition to these general democratic virtues, juries also serve a distinctly
local function by expressing the values of the communities in which they
operate.116 By connecting criminal verdicts with community values, the system
enhances public acceptance of the results of the criminal process.117
If all jurors did not agree to a verdict, then a truth was not being declared . . . . “The rule of unanimity may have originated . . . because the test
was the voice of the country and the country could but have one voice. . . . A
unanimous verdict . . . , which was regarded as representative of the country,
an expression of its sense, carried a supernatural weight.”118
Another author noted, with sufficient confidence to omit citations, that unanimous “juries must speak with one voice. The result appears more authoritative
and final. Such authority serves the public good, because the greater the
112. See Schwartz & Schwartz, supra note 40, at 458 (“A unanimity requirement is the most
extreme form of minority rule.”); see also Primus, supra note 72, at 1420 (noting that “placing absolute
veto power in the hands of a minority seems to conflict with the basic democratic principle of majority
rule”).
113. Amar, supra note 62, at 1175.
114. Taylor-Thompson, supra note 91, at 1317.
115. Id. at 1264.
116. AKHIL REED AMAR, THE BILL OF RIGHTS 88–89 (1998) (“The jury was not simply a popular body
but a local one as well. . . . [It] would be composed of citizens from the same community, and its
actions were expected to be informed by community values.”); GOBERT, supra note 101, at 15
(“[F]undamentally the decision which [jurors] are called upon to make is whether the accused shall go
to prison or remain free in the community—their community.”).
117. Laurie L. Levenson, Change of Venue and the Role of the Criminal Jury Trial, 66 S. CAL. L.
REV. 1553, 1558 (1993) (“Choosing jurors with some relation to the community . . . makes it more
likely that the verdict will be accepted by the community that must live with its consequences.”).
118. RANDOLPH N. JONAKAIT, THE AMERICAN JURY SYSTEM 94 (2003) (quoting LEONARD LEVY, THE
PALLADIUM OF JUSTICE: THE ORIGINS OF TRIAL BY JURY 43 (1999)).
2008]
UNANIMOUS CRIMINAL JURY VERDICTS
271
apparent agreement, the more likely it is that the litigants and the public will
accept the jury’s decision.”119
The criminal case against Reverend Sun Myung Moon provides an excellent
example of the importance of the legitimacy that attaches to a unanimous jury
verdict. In United States v. Moon, the Second Circuit found no error in federal
prosecutors’ refusal of consent to the bench trial requested by Reverend Moon.120
Reverend Moon argued, both in court and through the media, that he was being
prosecuted for racial and religious reasons.121 He sought a bench trial because
of negative pretrial publicity and fear of a public backlash against his comments.122 The prosecutor refused to consent to the bench trial because she
believed a jury verdict would be perceived as more legitimate than a verdict
rendered by a single judge who might appear biased:123 “There was an overriding public interest in the appearance as well as the fact of a fair trial, which
could be achieved only by a jury. . . . [T]his normal and preferable mode of
disposing of fact issues in a criminal trial would defuse the public criticism that
had been leveled by Moon.”124 The prosecutor thought that a jury verdict would
lend legitimacy to the whole prosecution and refute any argument that the
charges were improperly motivated by racial or religious considerations.
The prosecutor’s reasoning subtly suggests a final component of the legitimacy behind a jury verdict—the belief that individual juries each embody a
representative sample of the communities for which they speak.125 This belief is
most frequently expressed as a misunderstanding of the Constitution’s “reasonable cross-section” requirement. The Sixth and Fourteenth Amendments require
that juries be drawn from a pool of potential jurors that includes a reasonable
cross-section of the community.126 The jury pool, not the jury that is ultimately
selected, must be a representative sample.127
First of all, the emphasis on this aspect of the Sixth Amendment’s concept of
a jury-trial right is relatively new. It was not until 1940 that the Supreme Court
began to consider the “ideal of the cross-sectional jury” that seems so firmly
119. Id. at 95.
120. See United States v. Moon, 718 F.2d 1210, 1218 (2d Cir. 1983). The operative rule in the case
was Federal Rule of Criminal Procedure 23(a), which provides that a defendant may waive a jury trial
only with consent of the government and court approval.
121. See id. at 1217.
122. See id.
123. See id.
124. Id.
125. “The ‘jury of peers’ notion has an ancient lineage that still reverberates as a supposedly
important part of every American’s heritage.” OLDHAM, supra note 19, at 174.
126. Taylor v. Louisiana, 419 U.S. 522, 528 (1975) (“[T]he selection of a petit jury from a
representative cross section of the community is an essential component of the Sixth Amendment right
to a jury trial.”).
127. Batson v. Kentucky, 476 U.S. 79, 85 (1986) (“[A] defendant has no right to a ‘petit jury
composed in whole or in part of persons of his own race.’” (quoting Strauder v. West Virginia, 100 U.S.
303 (1880))).
272
THE GEORGETOWN LAW JOURNAL
[Vol. 97:251
rooted today.128 Second, there is a widespread public misunderstanding about
the parameters of this requirement. Many believe that each jury is supposed to
be “representative of the community.”129 That misconception forms the basis
for the sentiment that “[w]hen jurors are drawn from different backgrounds, the
jury is less likely to be suspected of group partiality or animosity, and its verdict
is more likely to be accepted.”130 In other words, the verdict appears more
legitimate if one perceives it as the unanimous judgment of a cross-section of
the whole community, as opposed to a homogenous group that may possess the
same bias.131 All of these reasons form the basis for the public perception that
the criminal jury process is fairer than the overall criminal justice system, and
jurors’ individual experiences help reinforce these perceptions.132
Perceptions aside, in reality “[t]he reasonable cross-section requirement . . . is
designed to ensure that members of all significant, or ‘cognizable,’ segments of
128. See JEFFREY B. ABRAMSON, WE, THE JURY: THE JURY SYSTEM AND THE IDEAL OF DEMOCRACY 115
(2000). Adding to contemporary popular confusion on the topic, the Justices seemed to have initially
considered requiring that juries themselves be representative. See, e.g., Thiel v. S. Pac. Co., 328 U.S.
217, 227 (1946) (Frankfurter, J., dissenting) (“[T]he broad representative character of the jury should be
maintained, partly as assurance of a diffused impartiality and partly because sharing in the administration of justice is a phase of civic responsibility.”).
129. See ABRAMSON, supra note 128, at 99 (“In the United States today, it is common to describe the
ideal jury as a ‘body truly representative of the community.’”) (quoting Smith v. Texas, 311 U.S. 128,
130 (1940)); see also OLDHAM, supra note 19, at 175 (describing former congressman Walter R. Tucker
III’s comment that he “was not judged by a jury of [his] peers and . . . did not receive a just verdict”);
Schwartz & Schwartz, supra note 40, at 430 (arguing that “under the current, but still very new,
conception of appropriate jury composition, its members should represent “a fair cross section” of the
population”). A database search for news articles containing the word “jury” in proximity to “not
representative” demonstrates the point. See, e.g., Dan Bickley, Tyson Seen as Fallen Hero, Convicted
Felon, CHI. SUN TIMES, Feb. 12, 1992, at 100; Avern Cohn, Letter to the Editor, Michigan Justices Err
with New Jury Rule, DET. NEWS, Dec. 23, 2005, at 18A; Martin Eisen, Editorial, These Juries Don’t
Belong in D.C., WASH. POST, June 24, 2001, at B8; Austin Fenner, Wendy’s Indict Hit as Flawed, N.Y.
DAILY NEWS, Jan. 18, 2002, at 2; Editorial, Focus: Death Row Inmate, SAN ANTONIO EXPRESS NEWS, Jan.
26, 2001, at 4B; Charlie Goodyear, 5 Indicted in Vallejo Bombing: Grand Jury Is Accused of Racial
Bias by Suspects, S.F. CHRON., Oct. 25, 1997, at A15; Sylvia Holloway, Letter to the Editor, Juries
Don’t Work, CHI. SUN TIMES, Sept. 4, 1995, at 20; Newton N. Minow & Fred H. Cate, Editorial, The
Best Jury Is Not an Ignorant Jury, WASH. POST., Sept. 11, 1994, at C7; Newton Minow & Fred H. Cate,
Is Ignorance Really a Virtue?, ST. LOUIS DISPATCH, Jan. 29, 1990, at 3B; Maeve Reston, Airman’s Wife
Charges Webb Jury with Bias; Jurors ‘Had Their Minds Set’ on Freeing the Former Sheriff’s Deputy,
Mariela Carrion Says, L.A. TIMES, July 3, 2007, at B4; Lisa Teachey, Wooten Vows He Will Clear
Name, HOUS. CHRON., Mar. 7, 2003, at A33.
130. Nancy S. Marder, The Interplay of Race and False Claims of Jury Nullification, 32 U. MICH.
J.L. REFORM 285, 286 (1999).
131. Schwartz & Schwartz, supra note 40, at 450 (“Only if the views of different groups vary
systematically, and these variations manifest themselves when people serve as jurors, is there any point
in democratizing the jury.”); see also Spaziano v. Florida, 468 U.S. 447, 486–87 (Stevens, J.,
dissenting) (“Juries—comprised as they are of a fair cross section of the community—are more
representative institutions than is the judiciary; they reflect more accurately the composition and
experiences of the community as a whole, and inevitably make decisions based on community values
more reliably, than can that segment of the community that is selected for service on the bench.”).
132. See Iontcheva, supra note 105, at 348 & nn.200–01 (collecting surveys).
2008]
UNANIMOUS CRIMINAL JURY VERDICTS
273
the community have the opportunity to be jurors.”133 The belief that individual
juries are supposed to be representative is incorrect. However, considering this
misconception of the reasonable cross-section requirement in connection with
the unanimity requirement adds additional—albeit misplaced—symbolic legitimacy to our criminal justice system.
Schwartz and Schwartz have suggested that the reasonable cross-section
requirement actually militates toward abandoning the unanimity requirement
because the increased diversity makes juries more likely to disagree and increases the costs of deadlock and mistrials.134 In connection with that argument,
they assert that “[i]t is very difficult to know exactly what is meant by the claim
that the . . . unanimity rule is essential for public acceptance of the legitimacy of
jury verdicts.”135 Their claim undervalues the symbolic values that are most
important to this process.
First, Schwartz and Schwartz write that “many cases are disposed of by
dismissal after a jury hangs.”136 Dismissal by the prosecutor hardly detracts
from the legitimacy associated with an actual verdict. It suggests that, even
absent an acquittal, the failure to attain the jury’s legitimizing verdict causes the
government to strongly consider ending its pursuit of the case. The fact that
prosecutors frequently dismiss cases after an inability to affix the stamp of
legitimacy to the action only supports the argument that great weight attaches to
a unanimous jury verdict.
Their other criticisms are similar in that they boil down to assertions that the
present process does not lead to actual unanimity. The authors argue that a
verdict following a hung jury is “not really unanimous” because at least one
juror necessarily disagreed with that outcome in the prior trial, that jurors
sometimes vote insincerely and inconsistently with their actual views of the
evidence, and that the “composition of the jury is gerrymandered to make
unanimity among those who do serve as jurors more likely.”137
While not without intuitive appeal, these arguments misconstrue the parame133. James Oldham, The History of the Special (Struck) Jury in the United States and Its Relation to
Voir Dire Practices, the Reasonable Cross-Section Requirement, and Peremptory Challenges, 6 WM. &
MARY BILL RTS. J. 623, 627 (1998).
134. Schwartz & Schwartz, supra note 40, at 451 (“[T]here is an inescapable tension between the
desire to have all of the diverse views regarding what justice requires influencing the outcome, and the
competing desire to have a jury render a verdict only when all members agree as to what the outcome
should be. The current . . . unanimity rule offers no method to alleviate this tension.”); see also Kenneth
S. Klein & Theodore D. Klastorin, Do Diverse Juries Aid or Impede Justice?, 1999 WISC. L. REV. 553,
556 (“Since 1980, commensurate with the Court’s protection of cross-sectionalism, there has arisen an
increased clamor for eliminating unanimity. The unanimity requirement may increase the likelihood of
a hung jury, but the argument being raised is that cross-sectional juries in particular are doomed to
hang.”).
135. Schwartz & Schwartz, supra note 40, at 451.
136. Id. at 451. They also argue that “if the first jury hangs, there is no assurance that a second jury,
unanimously favoring conviction or acquittal, represents a fair cross section of the population.” Id. This
hardly seems to be a criticism at all: courts do not require assurance that even the first jury represented
a reasonable cross section. See Oldham, supra note 133, at 627.
137. Schwartz & Schwartz, supra note 40, at 451–52.
274
THE GEORGETOWN LAW JOURNAL
[Vol. 97:251
ters of the unanimity requirement. The requirement, where it exists, is that some
number of jurors—usually twelve in a criminal trial—be assembled from a
larger representative pool and agree on the verdict at a criminal trial. It does not
require that every person who pronounces judgment on the case after the time it
is indicted concur in the ultimate result. Nor does the unanimity requirement
presently make any attempt to decipher the “sincere” intent of the voter other
than through polling the jury. The legitimacy outlined above presently attaches
without any such inquiry. More aggressive polling as to juror sincerity would
strike at the very core of the process by invading the sanctity of the jury room
and adversely affecting the deliberation process.
Even if “sincerity” is a concern, a dissenting juror’s vote can be ignored in
jury deliberations with a lesser rule of decision once the verdict threshold is
satisfied. Because voting sincerity becomes largely irrelevant in a majority-rule
jury system, it seems an unfair criticism to lodge against the unanimity requirement. More importantly, once the appropriate-sized faction in a majority-driven
jury system agrees, deliberations will likely cease. That type of stifling effect on
the deliberation process is one of the primary reasons for maintaining unanimity. The public perception that unanimity fosters a robust deliberation process
only enhances the legitimacy of verdicts arrived at through that system.138
Most importantly, the symbolic legitimacy of a unanimous criminal jury
verdict derives from perceptions of the process rather than logistical tallies of
juror votes across retrials. It is entirely possible that less legitimacy attaches to a
conviction achieved after an initial hung jury, but that reality does not suggest
that the symbolic legitimacy is wholly irrational. Society views the unanimity
requirement as adding legitimacy to this process regardless of whether or not
we are correct in the view that actual unanimity is achieved. Some of the basis
for this perception of legitimacy—a mischaracterization of the reasonable-crosssection requirement that even Schwartz and Schwartz appear to make—is
erroneous but nonetheless weighty.
***
The preceding sections defined key criteria to be used when assessing
alternatives for dealing with deadlocked juries. When we talk about juror
“coercion,” the real concern is that judges will improperly influence juries’
deliberations—even through subtle word choices—and that it will affect the
outcomes of trials. Being sensitive to coercion is important because it preserves
the values that we derive from requiring unanimous criminal verdicts.
What are those values? Despite unpersuasive historical justifications and a
lack of evidence that unanimous verdicts lead to more accurate trial outcomes,
there are good reasons for maintaining the unanimity requirement. The greatest
138. See Shari Seidman Diamond et al., Revisiting the Unanimity Requirement: The Behavior of the
Non-Unanimous Civil Jury, 100 NW. U. L. REV. 201, 204 (2006) (“Critics of the non-unanimous
decision rule claim that it weakens the ability of jurors holding plausible minority viewpoints to be
heard, undermines robust debate, and threatens the legitimacy of jury verdicts.”).
2008]
UNANIMOUS CRIMINAL JURY VERDICTS
275
benefits we reap from requiring unanimous jury verdicts are the effect on the
quality of the deliberations and the way in which the requirement appeals to our
other ideals of civic virtue and participatory democracy. Methods for preventing
divided juries from becoming irrevocably deadlocked should not do violence to
these important values.
III. PRESERVING THE RIGHT VALUES: ASSESSING METHODS FOR DEALING WITH
DIVIDED JURIES
There are many ways to handle a divided jury.139 Under Double Jeopardy
principles,140 courts are generally obliged to attempt to resolve any division
before declaring a mistrial.141 For many years in the federal courts, the most
commonly used jury instruction was the Allen charge.142 Over time, the Allen
instruction fell out of favor143—especially in state courts—and has been replaced by a variety of alternatives. These alternatives for dealing with deadlock
are not particularly susceptible to fine distinctions,144 but the better approach is
to stop paying lip service to generalized and abstract concerns about coercion
based on sweeping assumptions. These alternatives should be assessed in
connection with their potential impact on the deliberative process and their
likely effect on the symbolic legitimacy that attaches to any verdict rendered
after the anti-deadlock instruction. In order to illustrate this approach, this Part
examines some of the methods for dealing with divided juries in the state and
federal courts according to the criteria discussed in Part II.
A. ALLEN AND ITS RELATIVES
In Allen v. United States, the jury in a murder defendant’s third trial was
unable to agree on the verdict.145 The jury initially received “voluminous[]”
instructions that “somewhat embarrassed” the Supreme Court upon review.146
After the jury requested additional direction from the court, the trial judge gave
additional “quite lengthy” instructions, which stated “in substance,”
139. See HASTIE ET AL., supra note 73, at 232–33.
140. Arizona v. Washington, 434 U.S. 497, 505 (1978) (“Yet in view of the importance of the right,
and the fact that it is frustrated by any mistrial, the prosecutor must shoulder the burden of justifying
the mistrial if he is to avoid the double jeopardy bar. His burden is a heavy one. The prosecutor must
demonstrate ‘manifest necessity’ for any mistrial declared over the objection of the defendant.”).
141. See United States v. Razmilovic, 507 F.3d 130, 139 (2d Cir. 2007) (“The failure to pursue any
of the alternatives also sets this case apart from other cases where we have upheld trial courts’
determinations to declare a mistrial due to a genuinely deadlocked jury.”).
142. See Allen v. United States, 164 U.S. 492 (1896).
143. KASSIN & WRIGHTSMAN, supra note 29, at 193.
144. See A Reexamination of the Allen Charge, supra note 11, at 135 (“The basic problem is that the
specific factors which cause jurors to change their positions can never be isolated and proved, and
hence the coercive impact of an Allen-type instruction can never be assessed accurately.”).
145. Allen v. United States, 164 U.S. 492 (1896). The Supreme Court reversed Allen’s two prior
convictions. See Allen v. United States, 157 U.S. 675 (1895); Allen v. United States, 150 U.S. 551
(1893).
146. Allen, 164 U.S. at 494.
276
THE GEORGETOWN LAW JOURNAL
[Vol. 97:251
that in a large proportion of cases absolute certainty could not be expected;
that, although the verdict must be the verdict of each individual juror, and not
a mere acquiescence in the conclusion of his fellows, yet they should examine
the question submitted with candor, and with a proper regard and deference to
the opinions of each other; that it was their duty to decide the case if they
could conscientiously do so; that they should listen, with a disposition to be
convinced, to each other’s arguments; that, if much the larger number were
for conviction, a dissenting juror should consider whether his doubt was a
reasonable one which made no impression upon the minds of so many men,
equally honest, equally intelligent with himself. If, on the other hand, the
majority were 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.147
Breaking down the Court’s summary of the charge, some of it seems unobjectionable. It makes clear that jurors: (1) should not “acquiesce” to the positions of
others without a sound reason to do so, (2) should listen openly to the views of
others, and (3) have a duty to deliberate toward a verdict if it is at all possible to
reach one.
However, there are several problems with the charge. First, the instruction is
in tension with the requirement that a guilty verdict attach only upon proof
beyond a reasonable doubt because Allen instructs jurors in the minority that
their doubts about the evidence may not be reasonable solely because those
doubts are not shared by others.148 Second, the charge is problematic because it
suggests that “a dissenting juror should consider whether his doubt was a
reasonable one” if other jurors were not similarly persuaded.149 The coercion
risk arises because of the potential for the judge to influence the deliberations by
counseling jurors regarding the weight they should attribute to their own views
as well as others’.150 The Allen Court itself observed that “[t]he very object of
the jury system is to secure unanimity by a comparison of views, and by
arguments among the jurors themselves.”151 Through this instruction, however,
the judge involves himself in the deliberations by directing a dissenting juror to
reconsider positions that “made no impression upon the minds of so many men,
147. Allen, 164 U.S. at 501. The trial judge largely adopted an early instruction from Commonwealth
v. Tuey, 62 Mass. (8 Cush.) 1 (1851). See Allen, 164 U.S. at 501.
148. United States v. Fioravanti, 412 F.2d 407, 418 (3d Cir. 1969) (“Where a verdict of guilty is
generated by the process of being influenced by a preliminary vote of the majority instead of subjective
convincement beyond a reasonable doubt, at best we have a situation where two separate portions of the
charge are at loggerheads; at worst, we have a serious question that the charge may have become
constitutionally delinquent, in derogation of the defendant’s traditional right of trial by jury.”).
149. Allen, 164 U.S. at 501.
150. Fioravanti, 412 F.2d at 417 (“[The Allen charge] constitutes an unwarranted judicial invasion
into the exclusive province of the jury and adds the blind imprimatur of the trial court to a matter of
which it has absolutely no information: the results of the preliminary ballotting in the jury room.”).
151. Allen, 164 U.S. at 501.
2008]
UNANIMOUS CRIMINAL JURY VERDICTS
277
equally honest, equally intelligent with himself.”152 Allen is frequently criticized on the grounds that it “points a finger at the minority of jurors.”153 The
pressure on the minority in the instruction lacks an important counter weight:
[T]he Allen Charge . . . contains no admonition that the majority reexamine its
position; it cautions only the minority to see the error of its ways. It departs
from the sole legitimate purpose of a jury to bring back a verdict based on the
law and the evidence received in open court, and substitutes therefore a
direction that they be influenced by some sort of Gallup Poll conducted in the
deliberation room.154
The source of this inappropriate pressure is the judge, which is precisely the
type of coercion that must be avoided.155
The charge sanctioned by the Allen Court has been referred to with names
like “shotgun instruction,” “third-degree instruction,” “nitroglycerin charge,”
“hammer instruction,” or the “dynamite charge.”156 As one might expect given
these characterizations, Allen long ago fell out of favor.157 The result is an
infinite number of variations on the anti-deadlock instruction across jurisdictions.158 Given this infirmity, it is not surprising that the Allen charge has been
abandoned in many jurisdictions and that modified Allen charges are quite
frequent.
The American Bar Association (ABA) opened the floodgates for these changes
in 1968 when it released its own anti-deadlock instruction.159 The ABA found
that appellate review of deadlock instructions was difficult and often inconsistent,160 and it noted that appellate courts permitted practices that posed a greater
risk of coercion where the trial evidence seemed strong.161 To alleviate these
problems, the ABA suggested the following principles for instructing deadlocked juries:
(a) Before the jury retires for deliberation, the court may give an instruction
which informs the jury:
(i) that in order to return a verdict, each juror must agree thereto;
152. Id.
153. KASSIN & WRIGHTSMAN, supra note 29, at 194.
154. Fioravanti, 412 F.2d at 417.
155. Courselle, supra note 100, at 226 (“Thus, [the Allen] instructions give the trial judge undue
influence over the deliberations and undermine the defendant’s right to a trial by jury.”).
156. KASSIN & WRIGHTSMAN, supra note 29, at 193.
157. See, e.g., Fioravanti, 412 F.2d at 414–19; KASSIN & WRIGHTSMAN, supra note 29.
158. See Kent v. United States, 343 F.2d 247, 261 n.22 (D.C. Cir. 1964) (“The designation of ‘an
Allen charge’ has tended to become an over-simplification since, as might be expected, the express
words before the Supreme Court in the Allen case have . . . been frequently rearranged or altered . . . .”),
rev’d on other grounds, 383 U.S. 541 (1966).
159. See ABA JURY DEADLOCK INSTRUCTIONS, supra note 42, at 145–58.
160. See id. § 5.4, at 153–54.
161. See id.
278
THE GEORGETOWN LAW JOURNAL
[Vol. 97:251
(ii) that jurors have a duty to consult with one another and to deliberate
with a view to reaching an agreement, if it can be done without violence to
individual judgment;
(iii) that each juror must decide the case for himself, but only after an
impartial consideration of the evidence with his fellow jurors;
(iv) that in the course of deliberations, a juror should not hesitate to
reexamine his own views and change his opinion if convinced it is erroneous;
and
(v) that no juror should surrender his honest conviction as to the weight or
effect of the evidence solely because of the opinion of his fellow jurors, or for
the mere purpose of returning a verdict.
(b) If it appears to the court that the jury has been unable to agree, the court
may require the jury to continue their deliberations and may give or repeat an
instruction . . . .162
This charge is more consistent with coercion concerns and society’s interest
in maintaining the legitimacy that attaches to criminal jury verdicts. Most
importantly, the ABA’s instruction dropped any reference to potential minority
or majority factions within the jury. These improvements were lauded and
adopted, in substance, by courts throughout the country:
[The instruction] may free a jury mired in irrelevant disagreement . . . [but] it
is relatively free of potentially coercive references, does not tend to place
proponents of a minority view in a vulnerable position, and does not perpetuate the unfortunate fiction that, in case of a mistrial, another jury will
inevitably be assembled to consider the case.163
Although it criticized the “infinite number of variations of the charge,”164 the
ABA’s recommended principles were suggested in the form of a loose outline.165 The District of Columbia, for example, presently has two modified
deadlock charges. In United States v. Thomas, the D.C. Circuit considered a
jury-coercion argument where the trial judge had issued an Allen charge and
later instructed the jury that “he was ‘sure you ladies and gentlemen know we
have a substantial backlog of work, and to spend another day before another
jury retrying this case just doesn’t make sense to me.’”166 These comments
clearly allowed the trial judge to influence the jurors and the deliberations,
162. Id. § 5.4, at 145–46.
163. United States v. Johnson, 432 F.2d 626, 631–32 (D.C. Cir. 1970).
164. See ABA JURY DEADLOCK INSTRUCTIONS, supra note 42, § 5.4, at 155.
165. In fairness, the ABA did quote an “illustrative” instruction in the commentary to section 5.4,
see id. at 146, but few, if any, jurisdictions have adopted it verbatim.
166. United States v. Thomas, 449 F.2d 1177, 1180–81 (D.C. Cir. 1971) (en banc). The judge also
implored the jury to “come back tomorrow morning at 9:30 with a fresh mind and a night’s sleep and
seek to reach a verdict about the matter one way or the other.” Id. at 1180 n.11.
2008]
UNANIMOUS CRIMINAL JURY VERDICTS
279
which amounts to the specific type of coercion that is most problematic.167 And
the instruction had just that effect: the jury deliberated for only two hours the
next day before returning guilty verdicts on both counts. The court’s scheduling
issues and desire to save resources by avoiding a retrial have no place in the
deliberation room; any resulting verdict could not have been purely the jury’s
once those concerns were invoked. The D.C. Circuit agreed, reversed the
verdict, and adopted the ABA’s proposed charge verbatim.168
In Winters v. United States, the D.C. Court of Appeals relied on its “superintendent power” to revise the Allen charge in a way that strikes a different balance
between “the needed attribute of sufficient suasion for decision [and] preserving
juror independence.”169 Although it affirmed the instructions given in the case
under review, the court added an appendix to the opinion with an edited version
of the Allen charge “to adopt a rule for future cases:”170
In a large proportion of cases, absolute certainty cannot be attained or
expected. Although the verdict must be the verdict of each individual juror,
and not a mere acquiescence in the conclusion of your fellows, yet you should
examine the questions submitted to you with candor and with 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 consider that it is desirable that
the case be decided; that you are selected in the same manner, and from the
same source, from which any future jury must be; and there is no reason to
suppose that the case will ever be submitted to twelve persons more
intelligent, more impartial, or more competent to decide it, or that more or
clearer evidence will be produced on the one side or the other. And with
this view, it is your duty to decide the case, if you can conscientiously do
so. You should listen to each other’s arguments with a disposition to be convinced
[If much the larger number of jurors are for conviction, a dissenting juror] Thus,
where there is disagreement, jurors for acquittal should consider whether [his]
their doubt is a reasonable one which makes no impression upon the minds
of [so many jurors,] others, equally honest, equally intelligent with [himself]
themselves, and who have heard the same evidence, with the same attention, with
an equal desire to arrive at the truth, and under the sanction of the same oath.
[If, upon] And on the other hand, [the majority are for acquittal, the minority] jurors
for conviction ought seriously to ask themselves whether they might not reasonably
doubt the correctness of a judgment which is not concurred in by [the majority]
167. See id. at 1181 (“Any undue intrusion by the trial judge into this exclusive province of the jury
is error of the first magnitude. When efforts to secure a verdict from the jury reach the point that a
single juror may be coerced into surrendering views conscientiously entertained, the jury’s province is
invaded and the requirement of unanimity is diluted.”).
168. See id. at 1187 (“[I]n the exercise of our supervisory power over the administration of the law
in this circuit, we adopt the ABA standard for the guidelines which future renditions of Allen-type
charges must abide, and the ABA approved instruction as the vehicle for informing jurors of their
responsibilities in situations wherein judges decide to do so.”).
169. Winters v. United States, 317 A.2d 530, 532–33 (D.C. 1974) (citing Commonwealth. v.
Rodriquez, 300 N.E.2d 192 (Mass. 1973)) (revising prior deadlock instruction on same grounds).
170. Id. at 532.
280
THE GEORGETOWN LAW JOURNAL
[Vol. 97:251
others with whom they are associated; and distrust the weight or sufficiency of that
evidence which fails to carry conviction in the minds of their fellows.171
In a concurring opinion, Associate Judge Gallagher observed that the Allen
charge “unjustifiably intrudes the trial court into the jury’s province of factfinding.”172 Moreover, “[i]t is contrary to the concept of a free society that one who
is outnumbered is wrong for that reason alone. No judge should instill that
notion in a juror’s mind.”173 Like the ABA charge, the Winters charge focuses
on avoiding specific reference to the factions within the split jury. The inclusion
of the phrase “to you”—the phrase reads “you should examine the questions
submitted to you with candor and with proper regard and deference to the
opinions of each other”—emphasizes that the ultimate verdict rests in the
province of the jury.174 It also reinforces the perceptions that the jury alone
deliberates toward the verdict and that a “representative sample” announces the
outcome of the trial to the community.
On the negative side, the Winters instruction conceptualizes “decid[ing]” as
the collective act of the jury instead of emphasizing the individual decisions of
jurors. Similarly, only a verdict of guilty or not-guilty satisfies the instruction’s
definition of a “decision.” However, even if the jury cannot reach unanimity, the
individual jurors all make important decisions. A hung jury represents a decision as well. Despite its costs, the occurrence of a mistrial on these grounds is a
valuable aspect of the system. We should not be so concerned about instructing
jurors that they have a “duty to decide” the case because even in agreeing to
disagree and deadlocking, they are “deciding” as both individuals and a jury in
the ways that are important to the system.
B. ARIZONA’S IMPASSE INSTRUCTION
Arizona was one of the first states to abandon an Allen-like charge, and it did
so well in advance of the ABA’s recommendation. In State v. Thomas, the jury
was required to deliberate from 3:00 p.m. until about midnight.175 At that time,
the trial court gave an instruction with references to minority and majority
factions in the jury:
[A] dissenting juror should consider whether a doubt in his own mind is a
reasonable one which makes no impression on the minds of so many jurors
equally honest, equally intelligent with himself who have heard the same
evidence, with the same oath . . . .176
171.
172.
173.
174.
175.
176.
Id. at 534 (editing marks in original).
Id. at 535 (Gallagher, J., concurring).
Id.
Id. at 534 (majority opinion).
State v. Thomas, 342 P.2d 197, 197–98 (Ariz. 1959).
Id. at 199.
2008]
UNANIMOUS CRIMINAL JURY VERDICTS
281
The jury resumed deliberations at 1:00 a.m. and continued until at least 2:30
that morning.177 Despite the fact that the instruction itself was specifically
approved in a prior case,178 the Thomas court was “convinced that the evils far
outweigh the benefits, and decree[d] that its use shall no longer be tolerated and
approved by this court.”179 This case stands for the proposition that a jury
instruction with the same infirmities as the federal Allen charge is no longer
permissible in the state of Arizona.
Quite some time after the Thomas court’s holding, in 1993, the Arizona
Supreme Court initiated a project to examine significant reforms to its jury
system.180 The review committee was comprised of five jurors who had trial
experience in complex cases, as well as twenty-two practitioners ranging from
judges to professors.181 The committee made a variety of recommendations, the
most relevant of which was an innovative mechanism for dealing with deadlocked juries.182 The new procedure, which was subsequently adopted by
statute, allows the judge to write a note to the jurors that asks if the judge and
the lawyers might help the deliberations process by addressing questions that
divide them.183 The comments to the rule provide examples of ways to deal
with the division once it is identified, which include “giving additional instructions; clarifying earlier instructions; directing the attorneys to make additional
closing argument; reopening the evidence for limited purposes; or a combination of these measures.”184 The comments also offer an example of a permissible instruction regarding the initial impasse:
This instruction is offered to help your deliberations, not to force you to reach
a verdict.
You may wish to identify areas of agreement and areas of disagreement.
You may then wish to discuss the law and the evidence as they relate to areas
of disagreement.
If you still have disagreement, you may wish to identify for the court and
counsel which issues or questions or law or fact you would like counsel or
court to assist you with. If you elect this option, please list in writing the
issues where further assistance might help bring about a verdict.
177. Id.
178. See id. (citing State v. Voeckell, 210 P.2d 972 (Ariz. 1949)).
179. Id. at 200.
180. See Nancy S. Marder, Bringing Jury Instructions into the Twenty-First Century, 81 NOTRE
DAME L. REV. 449, 478 (2006).
181. B. Michael Dann & George Logan III, Jury Reform: The Arizona Experience, 79 JUDICATURE
280, 280–81 (1996).
182. Id. at 281–82.
183. See ARIZ. REV. STAT. ANN. § 17–22.4 (2007) (Rules of Criminal Procedure) (“If the jury advises
the court that it has reached an impasse in its deliberations, the court may, in the presence of counsel,
inquire of the jurors to determine whether and how court and counsel can assist them in their
deliberative process. After receiving the jurors’ response, if any, the judge may direct that further
proceedings occur as appropriate.”).
184. Id. cmt. (1995 Amendment).
282
THE GEORGETOWN LAW JOURNAL
[Vol. 97:251
I do not wish or intend to force a verdict. We are merely trying to be
responsive to your apparent need for help. If it is reasonably probable that you
could reach a verdict as a result of this procedure, it would be wise to give it a
try.185
The jury must send some affirmative sign to the court before the judge and
parties are permitted to try to address any potential division.186 When the judge
receives such a note, the model instruction recommends indicating that the court
is there to help the jury address its division.187 The model instruction also
makes clear that the judge will only attempt to assist the jury if it is “reasonably
probable that [the jury] could reach a verdict by this procedure.”188 Even after
that occurs, however, the judge’s discretion to address the source of the impasse
is not boundless. In State v. McCrimmon, for example, a guilty verdict was
vacated because the judge conducted an ex parte conference with an apparent
holdout juror.189 This limitation helps to send the message to the jury that it is
still in charge of the deliberations and that deadlock is an acceptable outcome at
the trial.
Arizona’s system has been used as a basis for some fairly progressive
practices in handling the jury. In State v. Fernandez, after an eleven-day murder
trial and one day of deliberations, the jury sent a note requesting additional
guidance on the definition of premeditation.190 The judge notified the trial
attorneys via e-mail that he “may order supplemental argument on that point
tomorrow morning.”191 The defense attorney suggested that the jury be told to
keep deliberating with the instructions they were given.192 The prosecutor
requested an opportunity to make a supplemental argument, and the judge
ultimately permitted both sides to do so.193 The jury eventually convicted
Fernandez of one count of first-degree murder and ten counts of attempted
first-degree murder.194 The Arizona Court of Appeals affirmed the conviction,
despite the fact that the jury had not actually indicated that it was at an impasse:
Under the circumstances present in this case, we find no prejudice to Fernandez and no abuse of discretion in the court’s procedure for resolving the jury
confusion. We cannot say the jury was coerced when the court ordered
185. Id.
186. State v. Huerstel, 75 P.3d 698, 704 (Ariz. 2003) (judge may not send impasse instruction where
jury deliberated for three days but did not send court a note); see also State v. Andriano, 161 P.3d 540,
552 (Ariz. 2007) (jury’s question about what would happen “if [it] could not reach a verdict” was
sufficient affirmative act to permit use of impasse instruction).
187. See ARIZ. REV. STAT. ANN. § 17-22.4 cmt. (1995 Amendment).
188. Id.
189. State v. McCrimmon, 927 P.2d 1298 (Ariz. 1996).
190. State v. Fernandez, 169 P.3d 641, 644 (Ariz. Ct. App. 2007).
191. Id. at 645.
192. See id.
193. See id.
194. Id. at 644.
2008]
UNANIMOUS CRIMINAL JURY VERDICTS
283
supplemental argument on premeditation based on the jury’s question. We
note, however, that our conclusion in this case should not be interpreted as
suggesting supplemental closing argument is appropriate simply because a
jury submits a question to the court during deliberations.195
The court was less aggressive in State v. Patterson.196 There, the trial
court—also on the basis of a specific request from the jury, but without an
indication of deadlock or “impasse”—reopened the evidence and allowed a map
of the crime scene to be introduced after deliberations had started.197 The jury
had previously heard evidence regarding the location of the shooting and the
vantage points of the witnesses, and the court found that introducing the map
into evidence would not prejudice the defendant.198 The court noted that there
was no Arizona law on this topic, but quoted the Arizona jury reform report
extensively in finding that the trial judge did not exceed his discretion.199 In
addition to other precedent for the practice of reopening the evidence,200 the
Patterson approach was not all that dramatic. It would be inappropriate to take
judicial notice of the map, but allowing the jury access to the basic map was a
far cry from permitting additional testimony on the issue of the defendant’s
identification or state of mind.
As these two cases demonstrate, Arizona permits its judges wide discretion in
this area. Nonetheless, judges should be hesitant to stretch that discretion too
far. Presently, the Arizona case reporters do not suggest that they are doing so.
Part of the reason for the controlled use of discretion may be that judges have
gotten used to the more traditional set of anti-deadlock practices during the time
they have been on the bench, and they do not want to stray far from the familiar.
The system of appellate review is also often set up in a way that is sensitive to
dealing with juries in certain ways. Drastic changes to anti-deadlock practices
may take time to fully implement, and trial judges will continue to exercise
rather bounded discretion because they cannot predict how their actions will
affect individual jurors or the verdict and do not know how appellate courts will
view these acts.
195. Id. at 648.
196. State v. Patterson, 56 P.3d 1097 (Ariz. Ct. App. 2002).
197. Id. The court noted that “[t]here is a substantial body of law from other jurisdictions dealing
with [the] issue” of reopening the evidence after deliberations have begun. Id. at 1098 & n.2 (citing
Dyson v. State, 615 A.2d 1182, 1186–87 (Md. 1992); Brown v. State, 372 S.E.2d 838, 839 (Ga. Ct.
App. 1988); M.C. Dransfield, Annotation, Propriety of Reopening Criminal Case in Order To Present
Omitted or Overlooked Evidence, After Submission to Jury but Before Return of Verdict, 87 A.L.R.2d
849 (1963)).
198. See id. at 1099.
199. See id. at 1098.
200. See id. at 1098 n.2 (citations omitted).
284
THE GEORGETOWN LAW JOURNAL
[Vol. 97:251
C. CALIFORNIA’S APPROACH: THE PHIL SPECTOR TRIAL
California rejected the Allen charge in 1977,201 and, perhaps relatedly, trials
in its state courts appear to end in deadlock-related mistrials more frequently
than the national average.202 Like Arizona’s court rules, California’s court rules
also permit flexible action by the trial court when the jury reaches an “impasse”:
(a) Determination
After a jury reports that it has reached an impasse in its deliberations, the
trial judge may, in the presence of counsel, advise the jury of its duty to
decide the case based on the evidence while keeping an open mind and
talking about the evidence with each other. The judge should ask the jury if it
has specific concerns which, if resolved, might assist the jury in reaching a
verdict.
(b) Possible further action
If the trial judge determines that further action might assist the jury in
reaching a verdict, the judge may:
(1)
(2)
(3)
(4)
Give additional instructions;
Clarify previous instructions;
Permit attorneys to make additional closing arguments; or
Employ any combination of these measures.203
The most notable distinction from Arizona’s rule is that California does not
suggest that the evidence may be reopened upon a question from the jury.
Music producer Phil Spector’s recent murder trial presents an example in
which the trial court risked stretching this rule so far that the proceedings would
damage the legitimacy of the jury process. Spector was accused of killing
actress Lana Clarkson in 2003.204 The much-publicized trial lasted four
months.205 After deliberating for seven days, the jury indicated that it was
deadlocked, noting that the split was seven votes to five but following the
judge’s instructions not to reveal which side had the majority.206 Three jurors
suggested that additional instructions would be helpful, including more guid-
201. See People v. Gainer, 566 P.2d 997, 1009 (Cal. 1977); see also Note, An Argument for the
Abandonment of the Allen Charge in California, 15 SANTA CLARA LAW. 939 (1975) (noting objections
to the Allen charge in California).
202. See Reichelt, supra note 30, at 582 n.75; see also Paula L. Hannaford-Agor & Valerie P. Hans,
Nullification at Work? A Glimpse from the National Center for State Courts Study of Hung Juries, 78
CHI.-KENT L. REV. 1249, 1252 (2003); James Kachmar, Comment, Silencing the Majority: Permitting
Nonunanimous Jury Verdicts in Criminal Trials, 28 PAC. L.J. 273, 294–98 (1996).
203. CAL. R. CT. 2.1036 (2007).
204. See Randal C. Archibold, Jury in Spector Murder Case Tells Judge It Is Deadlocked, N.Y.
TIMES, Sept. 19, 2007, at A16.
205. Id.
206. See id. The jury indicated that it had tallied four separate votes on the matter. Id.
2008]
UNANIMOUS CRIMINAL JURY VERDICTS
285
ance on the reasonable doubt standard.207
The judge then “elicited a back-and-forth with several jurors as he sought to
pinpoint what issues they were stuck on.”208 The jurors indicated disagreement
about the meaning of “reasonable doubt” and that they were confused about
how to weigh the evidence and interpret an instruction regarding the elements
of second-degree murder.209 Following this exchange, the judge rejected the
option of additional instructions on lesser-included offenses, agreeing with the
defense that such instructions might coerce the jury into believing that a verdict
was necessary at all costs.210 In the end, the judge simply re-read most of the
instructions, removing language he said misstated the law and adding additional
instructions about “reasonable doubt.”211 After about another week of additional
deliberation, the judge declared a mistrial due to the deadlock.212 Upon being
discharged, jurors indicated that two “holdouts” in favor of Spector had prevented the conviction.213
The biggest problem with the judge’s actions in this case is that there is a
great risk in conducting the type of back-and-forth that took place in this trial; it
injects too many unknowns into the process. Jurors are likely to put great
emphasis on everything that the judge says or asks. Even subtle facial expressions from the judge risk the type of influence that the anti-coercion principle
seeks to avoid—the judge should not inappropriately affect the deliberations
taking place in the jury room while they are in progress. Juries frequently ask to
review evidence or to have testimony read to them, and some interaction with
the court during deliberations is probably unavoidable in many cases. Nonetheless, these interactions should be circumscribed as much as possible. That is
why both the Arizona and California rules permit the judge to solicit indications
via notes from the jury about questions or other things that might help it reach a
verdict, but the rules suggest that conducting this inquiry through in-court
conversation is not appropriate. The judge in the Spector case seems to have run
afoul of the rule and risked tainting the process.
Second, the judge’s alterations to the jury instructions were probably a
mistake. He was correct not to instruct the jury on the lesser-included charge of
manslaughter after it had reached an impasse.214 Substituting a lesser-included
charge after deliberations had begun would suggest to the jury that the court
207. Id.
208. Randal C. Archibold, Judge Plans To Reinstruct Spector Jury, at Impasse, N.Y. TIMES, Sept. 20,
2007, at A16.
209. Id.
210. Id.
211. Randal C. Archibold, Spector Deliberations Resume, N.Y. TIMES, Sept. 21, 2007, at A15.
212. See Randal C. Archibold, Judge Declares Mistrial in Spector Murder Case, N.Y. TIMES, Sept.
27, 2007, at A24.
213. See id.
214. See Peter Y. Hong & Henry Weinstein, Spector Jury Says It’s Deadlocked; Judge May Let the
Panel Consider the Lesser Charge of Manslaughter, L.A. TIMES, Sept. 19, 2007, at A1 (quoting Loyola
Professor Laurie Levenson as stating, “The bigger the split, the more coercive the [new lesser-included]
286
THE GEORGETOWN LAW JOURNAL
[Vol. 97:251
preferred some type of conviction in the case, even if on a different charge,
rather than a mistrial.
By removing part of the initial murder instruction, however, the judge
conveyed a “not-so-subtle message to the jury that there may be more ways to
find Spector guilty than they have been thinking of . . . .”215 The jury could infer
from the new instruction that, because the initial instruction was so incorrect
that it had to be removed, they should look more carefully at the charge in the
first place. If the latter instruction seemed more permissive, it would suggest to
the jury that it should look more carefully at convicting Spector. Essentially, by
making this change, the judge “alter[ed] the rules by which a jury makes a
decision.”216 Even if a curative measure was available for the erroneous instruction in the first place, the judge impermissibly invaded the province of the jury.
The close, public scrutiny of his actions meant that, even if the jury had reached
a verdict, society would certainly not have accepted it as a legitimate stamp of
disapproval of Spector’s actions.
The interaction illustrates the fragility of the symbolism associated with the
jury system. The rules in both Arizona and California offer judges wide latitude
in dealing with and “assisting” split juries, but most trial courts are hesitant to
go beyond re-reading instructions before declaring a mistrial. Their actions
demonstrate appropriate regard for the sanctity of the jury’s deliberations and
the symbolic legitimacy that attaches to verdicts resulting from a process
requiring unanimous verdicts. Departing too far from contemporary antideadlock instructions to “assist” the jury through the procedures available in
these states might reduce the incidence of mistrials, but these actions also risk
damaging the perceived legitimacy of the criminal process. Most judges do not
go too far with the more radical methods of dealing with divided juries. Nor
should they.
CONCLUSION
This Note articulated some instrumental principles to guide the debate regarding anti-deadlock instructions. Properly defined, the primary concern in handling a divided jury is that the judge may coerce jurors in a way that taints the
ultimate verdict, prevents it from being the product of the jury’s deliberations,
and limits the extent to which the community accepts the products of the
criminal justice system as legitimate. The sanctity of the deliberation room and
the concept that the verdict is solely the jury’s should be paramount concerns.
Although unanimity does not necessarily provide major benefits in terms of
instruction would look. . . . The defense will easily argue that if the jury then comes back with a guilty
verdict on manslaughter, it was ‘a tainted compromise verdict . . . .’”).
215. Peter Y. Hong & Henry Weinstein, Spector Jury Instructions To Be Altered; After Deciding
Against Allowing Deadlocked Jurors To Consider a Lesser Charge, the Judge Will Remove a Thorny
Sentence, L.A. TIMES, Sept. 20, 2007, at B1 (quoting Loyola Professor Laurie Levenson).
216. Id. (quoting Lois Heaney of the National Jury Project West).
2008]
UNANIMOUS CRIMINAL JURY VERDICTS
287
leading to correct verdicts more often than other potential rules of decision, it
enhances the deliberative process. The unanimity requirement also makes the
deliberation room operate in the way that we envision the ideal democratic
process to work. People participate. Their votes matter. They are engaged by the
process. They take ownership over the result. Because these types of participatory opportunities are not easily found in modern politics, jury deliberations
serve an important function not only for vindicating defendants’ rights but also
for providing jurors with valuable civic experiences. Society benefits from both
the verdicts that result from this system and individuals’ enhanced appreciation
for civic participation through their experiences with jury service.
Thus, unanimity is important, but not for the reasons we might think. The
differences matter because they influence the ways in which divided juries
should be addressed. Judges should handle these situations with extreme care.
While over a hundred years of appellate review in this area since Allen have
made that point abundantly clear, the types of things to which courts should pay
careful attention are the protection of the deliberative process and the symbolic
legitimacy of the ultimate verdict as a community pronouncement.
Like many ideals, the benefits of unanimity cannot be presumed to accrue in
every case. Anecdotes abound of displeased jurors leaving the process with
frustration or disillusionment. Most often, those offering these types of anecdotes are also the ones most willing to break down the door of the deliberation
room and shake things up. However, the value of the deliberative process goes
beyond individual defendants and trial verdicts. Unanimity enhances the criminal process because society—more often than not—views a unanimous criminal
verdict as the pronouncement of the community. It puts a stamp of legitimacy
on the efforts of the prosecutor, the court, and the jury. Continued research in
this field and debates over these alternatives should prioritize these values.