So, what exactly is this “ALLEN CHARGE” being talked about in connection with the Bill Cosby jury deliberations? You may have heard that after deliberating for 40 hours the jury told the judge they were deadlocked and unable to reach a decision. His answer? Go back and deliberate some more.
In a nutshell, the Allen Charge is a set of instructions given to the jurors that tells them to go back, re-examine their positions and try to reach a unanimous decision. They aren’t required to change their opinions, but by the time a jury has decided it is deadlocked, jurors are tired, frustrated and want to go home.
For some, the Allen Charge is a recipe for disaster. Especially when the jury is sequestered and been away from their families for a while. The idea that the judge will make them deliberate until a unanimous verdict is reached can lead a juror– especially if he or she is in the minority– to give in and change his or her mind. When that happens can it really be said that that juror has voiced his or her own opinion– or the opinion of the majority bloc? I recall that when the Hebrew spies returned from spying out the Promised Land, the majority was not in favor of going on in. They were wrong.
A number of states have decided to retire the Allen Charge, because it is recognized to be coercive. Despite that, the charge was approved by the U.S. Supreme Court back in 1896 (Allen v. United States) when the court ruled that a judge has the right to “strongly encourage” deadlocked jurors to keep deliberating until they reach a verdict.
That’s the idea. So depending on the words he used, a judge could either convey the message that one more good faith attempt to reach a decision should be made, or that somebody in the group needs to change their opinion about the evidence.
Because of that a lot of different variations of the original Allen charge cropped up over the years after the Supreme Court decision. As you might imagine, some of those were just bad and clearly tried to influence the jurors to give up on their individual opinions and change their minds for the sake of a unanimous verdict. Some of those Allen Charges were unconstitutional or prejudicial by appellate courts. Whenever a judge goes beyond the approved charges, he could be accused of attempting to interfere with jury deliberations or influence the jurors.
Even though “constitutional,” the Allen Charge is archaic, a relic of an almost ancient past. When jurors spend time sitting through trials, taking notes, reviewing testimony and deliberating for long periods of time, the Allen Charge essentially tells them that their individual opinions are not as important as their being in agreement. So they have to go back and do again what they just spent time doing– fairly appraising the case presented to them by the prosecution and the defense.
Despite what some fervently believe, not every defendant is guilty. But admittedly the great majority of them probably are (like Officer Betty Shelby, who killed Terence Crutcher; or the 5 police officers who fired 127 rounds into a car killing the unarmed driver and his unarmed girlfriend because his muffler backfired and it sounded to them like gunfire). Still, when a jury as a body has reservations about a defendant’s guilt– like when one or two or more don’t think that he or she has been proven guilty– they should not be pushed to change their opinions “to reach a unanimous verdict.” That’s how innocent people many times end up convicted.
If the Cosby case jurors remain deadlocked, the judge ought to thank them for their service, declare a mistrial and move on. The state can retry the man if it wishes. The judge is paid to do his job either way. Pushing the jury to be unanimous might be legal, but in my humble opinion it’s just plain wrong. #FixIt.
Here is an example of an Allen Charge:
Members of the Jury:
I’m going to ask that you continue your deliberations in an effort to reach agreement upon a verdict and dispose of this case; and I have a few additional comments I would like for you to consider as you do so.
This is an important case. The trial has been expensive in time, effort, money and emotional strain to both the defense and the prosecution. If you should fail to agree upon a verdict, the case will be left open and may have to be tried again. Obviously, another trial would only serve to increase the cost to both sides, and there is no reason to believe that the case can be tried again by either side any better or more exhaustively than it has been tried before you.
Any future jury must be selected in the same manner and from the same source as you were chosen, and there is no reason to believe that the case could ever be submitted to twelve men and women more conscientious, more impartial, or more competent to decide it, or that more or clearer evidence could be produced.
If a substantial majority of your number are in favor of a conviction, those of you who disagree should reconsider whether your doubt is a reasonable one since it appears to make no effective impression upon the minds of the others. On the other hand, if a majority or even a lesser number of you are in favor of an acquittal, the rest of you should ask yourselves again, and most thoughtfully, whether you should accept the weight and sufficiency of evidence which fails to convince your fellow jurors beyond a reasonable doubt.
Remember at all times that no juror is expected to give up an honest belief he or she may have as to the weight or effect of the evidence; but, after full deliberation and consideration of the evidence in the case, it is your duty to agree upon a verdict if you can do so.
You must also remember that if the evidence in the case fails to establish guilt beyond a reasonable doubt the Defendant should have your unanimous verdict of Not Guilty.
You may be as leisurely in your deliberations as the occasion may require and should take all the time which you may feel is necessary.
I will ask now that you retire once again and continue your deliberations with these additional comments in mind to be applied, of course, in conjunction with all of the other instructions I have previously given to you.
