1. Chapter Fourteen Instructions and Deliberations of a Jury Chapter Fourteen Instructions and Deliberations of a Jury A jury verdict is a quotient of the prejudices of twelve people… — Kenneth Grub, attorney

2. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 Allen Charge Charging the Jury Consciousness of Guilt Deliberations Foreperson Hung jury Key terms to understand for this chapter… KEY WORDS

3. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 OBJECTIVES After completing this chapter, you should be able to… Explain the judge’s requirement to instruct the jury on various issues. Discuss the deliberation process. List the duties of the prosecutor and defense counsel in preparing jury instructions. Explain the restrictions on a judge’s ability to comment on the evidence. List the materials that may be taken into the jury’s deliberation room.

4. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 OBJECTIVES After completing this chapter, you should be able to… Discuss the Allen instructions and why a judge would give an Allen charge. Explain the problems involved in less than unanimous verdicts. (cont.)

5. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 On completion of the closing arguments, the judge instructs the jury on the law applicable to the case. –also known as charging the jury or as the charge to the jury Although instructing follows presentation of evidence, the judge has the responsibility of explaining the law to the jury as the trial progresses, for their guidance. Instructions to the Jury Jury being sworn in.

6. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 During the charge to the jury, the judge will summarize the points of law explained to them during the trial and instruct them on their function as jurors. Instructions to the Jury Pete Freed swears in potential jurors at the Erie County Courthouse.

7. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 As a general rule, prosecuting and defense attorneys prepare written instructions they wish given to the jury. –furnished prior to the closing arguments to the judge, who selects those that appear to be applicable The defendant is entitled to instructions being given on all pertinent evidence, regardless of its importance. –failure to give an instruction concerning pertinent evidence could be grounds for reversal of conviction on appeal The judge also has the responsibility of instructing the jury in clear and understandable language. Instructions to the Jury Defense/Prosecution Recommendations

8. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 Some samples of additional instructions: –it is the function of the judge to interpret the law but the jury is the exclusive judge of the facts –the jury must determine facts only from the evidence and must also carefully determine the credibility of each witness –the jury may not consider any statement stricken from record –it is their duty to consult one another and deliberate on a just verdict, to express the individual opinion of each juror In addition to these general instructions, more specific instructions applicable to the case will be included. Instructions to the Jury Defense/Prosecution Recommendations

9. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 About half of the states prohibit comments by the judge on the evidence and credibility of the witnesses. –is believed that such comments are an invasion of the function of the jury A few states & courts grant considerable freedom to a judge to comment, and it has been stated the judge should be a real factor in the administration of justice. –and not a mere referee of the adversary system The judge must summarize the evidence in an impartial and instructive manner, but may point out weaknesses in the evidence or question credibility of witnesses. Instructions to the Jury Comments by the Judge

10. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 If the jury has not been sequestered prior to being given the case, the judge must decide whether or not to do so during deliberations. The jury may decide on the verdict in the courtroom, but in most instances they will retire to some private and convenient place for deliberations. –generally referred to as the jury room While deliberating, the jurors will be under the guard of an officer of the court, sworn to keep the jurors together, not permit anyone to speak to them, and not speak to them him/herself except on orders of the court. Deliberations

11. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 Prior to beginning the deliberation, the jury will select one of their members to act as the foreperson—their leader and spokesperson. During deliberation, no one may be present in the jury room except the jurors. –not even the officer in charge of the jury Deliberations Inside the Jury Room Jury foreperson, standing, reading the verdict to the judge.

12. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 On beginning the deliberation, the jury may take with them any and all documents introduced during the trial. –in many jurisdictions, the jury may not take any depositions with them Rules of evidence in most states provide that the jury may take any document, exhibits or physical evidence. A majority of states permit jurors to take notes. –at the discretion of judges, who differ in attitudes toward it It is argued that benefits derived from a note-taking during a trial far exceed any detriment suffered. Deliberations Materials Inside the Jury Room

13. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 How long a jury may deliberate before reaching a verdict will depend largely on the length of the trial. –and on how convincing the evidence may have been The jury may decide on a verdict after conferring for a few minutes or they may take days. –they may not agree at all, referred to as a hung jury. If this occurs, the jury is discharged, a mistrial may be declared, and the trial restarted with a new jury. Most judges do their utmost to encourage a jury to reach a verdict. Deliberations Length of Deliberations

14. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 A judge may call the jury back into courtroom from time to time to determine if the foreperson believes a verdict can be reached, and may even inquire about how the jury is numerically split in reaching a verdict. The judge must be circumspect in urging the jury to reach a verdict, and not do or say anything interpreted as a threat or forcing a verdict on the jury. The judge will discharge the jury if the foreperson feels the jury is deadlocked and cannot agree on a verdict. –the jury may be asked to further consider the matter, if the majority is for a verdict, and only one or two disagree Deliberations Length of Deliberations

15. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 In some states, the judge may read to the jury what is referred to as the Allen charge or Allen instruction. –called the “dynamite charge,” its purpose is to blast a jury into action, so they will reach a verdict This charge was originally approved by the Supreme Court in Allen v. US, and portions are noted here: –“…the verdict to which a juror agrees must, of course, be …the result of his own convictions and not a mere acquiescence in the conclusion of his/her fellows,” –“…you must examine the questions submitted to you with candor and with a proper regard and deference to the opinions of each other.” Deliberations Length of Deliberations - Allen Charge

16. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 Portions of Allen v. US: –“the case must at some time be decided, …it is your duty to decide the case, if you can conscientiously do so.” –“…And if in any part of it you are left in doubt, the defendant is entitled to the benefit of the doubt and must be acquitted.” –“…if a majority are for acquittal, the minority ought seriously to ask themselves whether they may not reasonably and ought not to doubt the correctness of a judgment, “ –“That is given to you as a suggestion of the theory and rationale behind jurors coming to a decision one way or the other. …the Court is going to ask you to retire and continue in your deliberations.” Deliberations Length of Deliberations - Allen Charge

17. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 Some courts are opposed to the Allen instruction, being of the opinion the jury may interpret the instruction as commanding them to reach a verdict. Many courts consider the instruction to be a proper reminder a jury’s obligation to attempt to arrive at a just verdict. –and not allow personal pride, prejudice, or personalities to interfere with their judgment Deliberations Length of Deliberations - Allen Charge

18. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 As stated by Supreme Court Justice Burger in the case of Fuiwood v. US: –“The Allen charge is a carefully balanced method of reminding jurors of their elementary obligations, which they lose sight of during protracted deliberations.” –“It is perfectly valid to remind them that they should give some thought to the views of others and should reconsider their position in light of those views.” –“While it suggests to the minority that they reconsider their position in light of a majority having a different view, it reminds them that they should not acquiesce in a verdict which does not represent their own convictions.” Deliberations Length of Deliberations - Allen Charge

19. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 Instead of using Allen, some courts have adopted the American Bar Association instruction, in substance: –“It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement” –“Each of you must decide the case for yourself, … after an impartial consideration of the evidence” –“…do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous.” –“…do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.” Deliberations Length of Deliberations - Allen Charge

20. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 Even if the Allen or a similar instruction is read to the jury, they still may be unable to reach a verdict. Some persons may have sincere doubts about guilt or innocence, and will not retract that doubt. –regardless of the urging of the majority of the jurors There are persons who, for reasons of their own, delight in opposing the majority on any issue –when these individuals are on juries, reaching a verdict is almost impossible Deliberations Length of Deliberations - Allen Charge

21. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 To avoid hung juries, some states have broken with the traditional unanimous verdict rule in criminal trials. –legislation has permitted less-than-unanimous verdicts in certain criminal cases All states require that the verdict be unanimous in cases in which the maximum penalty may be death. –but vary in the number required to arrive at a verdict The less-than-unanimous verdict has received the sanction of the US Supreme Court in two companion cases decided in 1972. –the Johnson case, and the Apodaca case Deliberations Less-than-Unanimous Verdicts

22. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 In Johnson, the defendant was convicted of robbery by a nine-to-three verdict in Criminal District Court. In Apodaca, three defendants, before separate Oregon juries, were convicted, respectively, of assault with a deadly weapon, burglary in a dwelling, and grand larceny, all with less-than-unanimous verdicts. Johnson, and the defendants in Apodaca case took their convictions to the Supreme Court on grounds they had been denied their guarantee of a trial by jury. –the defendants contended that permitting conviction by a less-than-unanimous verdict did not constitute a trial by jury Deliberations Less-than-Unanimous Verdicts

23. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 Johnson alleged with such a verdict, the prosecution had failed to prove guilt beyond a reasonable doubt. –thus violating the right to due process of law The Court did not agree with this contention and stated: –“We conclude …the State satisfied its burden of proving guilt beyond a reasonable doubt.” –“The remaining question …is whether the vote of three jurors for acquittal can be said to impeach the verdict..and to demonstrate that guilt was not in fact proved beyond such doubt.” –“We hold that it cannot.” Deliberations Less-than-Unanimous Verdicts

24. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 The Johnson Court further stated: –“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.” –“Jury verdicts finding guilt beyond a reasonable doubt are regularly sustained even though the evidence was such that the jury would have been justified in having a reasonable doubt” –“even though the trial judge might not have reached the same conclusion …even though appellate judges are closely divided on the issue [of] whether there was sufficient evidence to support a conviction.” Deliberations Less-than-Unanimous Verdicts

25. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 In Apodaca, the Court further discusses reasonable doubt, and upholding the right of the states to permit a less-than-unanimous verdict, and Court stated: –“In Williams v. Florida, we had occasion to consider …whether …trial by jury requires.. juries …of 12 men.” –“…we concluded that it was not of constitutional stature.” –“We reach the same conclusion today with regard to the requirement of unanimity.” –“As we said in Duncan, the purpose of trial by jury is to prevent oppression by the Government.” Deliberations Less-than-Unanimous Verdicts

26. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 The Apodaca Court further stated: –“Given this purpose, the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the common sense judgment of a group of laymen.” –“A requirement of unanimity, however, does not materially contribute to the exercise of this common sense judgment." –“Requiring unanimity would obviously produce hung juries …where nonunanimous juries will convict or acquit.” –“…in either case, the interest of the defendant in having the judgment of his peers interposed between himself …and the State …is equally well served.” Deliberations Less-than-Unanimous Verdicts

27. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 Mr. Justice Powell, in his concurring opinion in Apodaca, commented: –“There is no reason to believe, …a unanimous decision of 12 jurors is more likely to serve the high purpose of jury trial, or is entitled to greater respect in the community, than the same decision joined in the 10 members of a jury of 12.” –“Removal of the unanimity requirement could well minimize the potential for hung juries occasioned either by bribery or juror irrationality.” –“…the rule that juries must speak with a single voice often leads, not to full agreement …but to agreement by none and compromise by all,” Deliberations Less-than-Unanimous Verdicts

28. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 Since the Supreme Court has given sanction to less- than-unanimous verdicts, it is highly possible that other states in the future will adopt this verdict requirement. It has been argued there is no sound reason, other than tradition, for the requirement of the unanimous verdict –origin of the unanimous verdict is unclear Arguments of those who oppose less-than-unanimous verdicts are just as strong, stated that abolishing the unanimous verdict to prevent hung juries is a shallow argument and not sufficient reason for such an action. Deliberations Less-than-Unanimous Verdicts

29. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 Some argue, as did Mr. Justice Douglas in his dissent in Johnson, the less-than-unanimous verdict prohibits minority members of a jury from presenting arguments. It is also argued that if is permitted, the next step may be eliminating the presumption of innocence or proving the defendant guilty beyond a reasonable doubt. It should be pointed out the Bill of Rights says nothing about twelve persons being required to compose a jury, a verdict’s being unanimous, proving a defendant guilty beyond a reasonable doubt, or presuming innocence. Deliberations Less-than-Unanimous Verdicts

30. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 These rights have been established by tradition but allegedly have a constitutional standard, and any break with this standard will weaken our justice system. The US Supreme Court, however, in Burch v. Louisiana, held the verdict of a jury comprising of six persons must be unanimous for “nonpetty offenses.” The Court stated that: – “to hold anything less than a unanimous verdict by a jury of only six persons would be a threat to the constitutional guarantee of a trial by an impartial jury.” Deliberations Less-than-Unanimous Verdicts

31. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 On completion of the closing arguments, the judge charges (instructs) the jury on the law of the case. Counsel for both sides submits requests for instructions to the judge in a hearing outside of the presence of the jury. Any objections to the proposed instructions must be made during the hearing. States differ on what comments a judge may make to the jury regarding the state of the evidence. Important topics for this chapter… SUMMARY

32. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 During deliberations, only jury members may be present. Any evidence admitted in the trial may be taken into the jury room for consideration during deliberations. Some states permit jury findings based on less than unanimous verdicts. When the jury comprises only six members, the verdict must be unanimous. Important topics for this chapter… SUMMARY (cont.)

33. Chapter End