Saturday, May 14, 2011

Preserving the Value of Unanimous Criminal Jury Verdicts in Anti-Deadlock Instructions by Emil J. Bove III


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

(b) Possible further action
If the trial judge determines that further action might assist the jury in
reaching a verdict, the judge may:
(1) Give additional instructions;
(2) Clarify previous instructions;
(3) Permit attorneys to make additional closing arguments; or
(4) 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-

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
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.


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 . . . .’”) ...