Del. P.J.I. Crim. No. 4.40

JURY UNABLE TO AGREE -- "ALLEN" CHARGE

[The Delaware Supreme Court repeatedly has held that this charge should be

given in its entirety, as written, without any excisions to its text. See Allen v.

State, 164 U.S. 492 (1896).]

Members of the Jury:

I have a note from your foreman which reads as follows:

[READ NOTE]

I would like to suggest a few thoughts that you may wish to consider in

your deliberations, along with the evidence and the instructions previously given

to you.

Every case is important to the parties affected. The trial has been time-consuming and expensive to both the parties. If you should fail to agree upon a

verdict, the case is left open and undecided. Like all cases, it must be disposed of at

some time. There appears to be no reason to believe that another trial would not be

equally time-consuming and expensive to all persons involved, nor does there

appear to be any reason to believe that the case can be tried again better or more

exhaustively than it has been in this trial. Any future jury must be selected in the

same manner and from the same source as you were chosen. So there appears to

be no reason to believe that the case would ever be submitted to twelve men and

women more intelligent, more impartial, or more competent to decide it or that

any more or clearer evidence could be produced on behalf of either side.

Of course, these matters suggest themselves, upon brief reflection, to all of

us who have sat through the trial. The only reason that I mention them now is

because some of them may have escaped your attention, which must have been

fully occupied up to this time in reviewing the evidence of the case. They are

matters which, along with other and perhaps more obvious ones, remind us how

important and desirable it is for you to unanimously agree upon a verdict but only

if you can do so without violence to your individual judgment and conscience.

You should not surrender your conscientious convictions. It is your duty as

jurors to consult with one another and to deliberate with a view to reaching an

agreement if you can do so without violence to individual judgment. Each of you

must decide the case for yourself, but you should do so only after consideration of

the evidence with your fellow jurors, and in the course of your deliberations you

should not hesitate to change your opinion when convinced that it is erroneous.

In order to bring twelve minds to a unanimous result, you must examine the

questions submitted to you with candor and frankness and with proper deference

to and regard for the opinions of each other. That is to say, in conferring together

each of you should pay due attention and respect to the views of the others and

listen to each other's arguments with a disposition to re-examine your own views.

If much the greater number of you are for one side, each dissenting juror

ought to consider whether his or her position is a reasonable one since it makes no

effective impression on the minds of so many equally honest, intelligent fellow

jurors who bear the same responsibility, serve under the sanction of the same oath,

and have heard the same evidence with, we may assume, the same attention and an

equal desire to arrive at the truth. In a like manner, the jurors who constitute the

greater number should consider the reasons of those who take a different position to

see whether there may be persuasive merit in that position.

You are not partisans; you are judges -- judges of the facts. Your sole

purpose is to ascertain the truth from the evidence before you. You are the sole

and exclusive judges of the credibility of all the witnesses and of the weight and

effect of all the evidence. In the performance of this high duty you are at liberty to

disregard any comments of both the Court and counsel, including, of course, the

remarks I am now making. Remember at all times no juror should yield his or her

conscientious belief as to the weight and meaning of the evidence. Remember,

also, that after full deliberation and consideration of all the evidence, it is your

duty to agree upon a verdict if you can do so without violating your individual

judgment and conscience.

You may conduct your deliberations as you choose, but I suggest that you

should now retire and carefully reconsider all of the evidence bearing upon the

questions before you and see whether it is not possible to arrive at a unanimous

verdict.

If, however, upon further deliberation, you believe that a unanimous verdict

is simply not possible, please inform the bailiff. I do not suggest in any way that

you must remain together until a verdict is reached. Nor do I suggest that you must

deliberate for any particular length of time before being discharged.