Allen Charge California

In People v. Gainer (1977) 19 Cal.3d 835, the California Supreme Court established a judicially declared rule of criminal procedure proscribing trial courts from giving juries an "Allen-type" charge. (Allen v. United States (1896) 164 U.S. 492.) According to the court, this type of charge has two impermissible features. First, the instruction tells the jury that "'a dissenting juror should consider whether his or her doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, upon the other hand, the majority was 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.'" (Gainer, supra, at p. 845) Criticizing this aspect of the instruction, Gainer reasoned that it "pointedly directs the jurors to include an extraneous factor in their deliberations, i.e., the position of the majority of the jurors at the moment. The one or more 'holdout' jurors are told that in reaching their independent conclusions as to whether or not a reasonable doubt of the defendant's guilt exists, they are to weigh not only the arguments and evidence but also their own status as dissenters - a consideration both rationally and legally irrelevant to the issue of guilt. They are thus deflected from their proper role as triers of fact, as effectively as if they had been instructed to consider their doubts as to guilt in light of their own prejudices or desire to go home." (Id. at p. 848.) Gainer also emphasized that this part of the instruction threatened the defendant's right to have his or her guilt or innocence decided by the unanimous verdict of a jury of 12 persons. This was because it encouraged acquiescence simply because the verdict had been reached by a majority, which is "manifestly incompatible with the requirement of independently achieved jury unanimity." (Id. at p. 849.) As the court explained: "The dissenters, struggling to maintain their position in a protracted debate in the jury room, are led into the courtroom and, before their peers, specifically requested by the judge to reconsider their position. No similar request is made of the majority.It matters little that the judge does not know the identity of the particular dissenters; their fellow jurors know, and the danger immediately arises that 'the Allen charge can compound the inevitable pressure to agree felt by minority jurors.'" (Id. at p. 850) The second objectionable aspect of the instruction was the statement that "you should consider that the case must at some time be decided . . . ." Gainer pointed out that this statement was legally inaccurate since "the possibility of a hung jury is an inevitable by-product of our unanimous verdict requirement" and that when confronted with a mistrial, the People retain the authority to request a dismissal of the action. "Thus the inconclusive judgment of a hung jury may well stand as the final word on the issue of a defendant's guilt. Because an instruction which implies that a hung jury will assuredly result in a retrial misstates the law, the court erred in giving that portion of the charge . . . ." (Id. at p. 852.)