9th Cir. Model Jury Instr. (Criminal) 6.25

[Option 1]

Members of the jury, you have reported that you have been unable to reach a unanimous verdict in this case. I have decided to suggest a few additional thoughts to you.

As jurors, you have a duty to discuss the case with one another and to deliberate in an effort to reach a unanimous verdict if each of you can do so without violating your individual judgment and conscience. Each of you must decide the case for yourself, but only after you consider the evidence impartially with your fellow jurors. During your deliberations, you should not hesitate to reexamine your own views and change your opinion if you become persuaded that it is wrong. You should not, however, change an honest belief as to the weight or effect of the evidence solely because of the opinions of your fellow jurors or for the mere purpose of returning a verdict.

I also remind you that in your deliberations you are to consider the instructions that I have given you as a whole. You should not single out any part of any instruction, including this one, and ignore others. They are all equally important.

What I have just said is not meant to rush you or pressure you into agreeing on a verdict. Take as much time as you need to discuss things. There is no hurry.

I ask that you now return to the jury room and continue your deliberations with these additional comments in mind.

[Option 2]

Members of the jury, you have reported that you are unable to reach a unanimous verdict in this case. I realize and appreciate that you are having some difficulty in reaching unanimity, but that is not unusual.

To attempt to assist you in reaching a unanimous verdict, I want to suggest some additional thoughts for your consideration. Sometimes after hearing this additional instruction and engaging in further discussions, jurors can work out their differences and agree unanimously on a verdict.

Although there is no requirement that you reach a verdict in this case, your goal as jurors should be to reach a fair and impartial verdict if you are able to do so based on the evidence presented and the principles of law on which I have instructed you.

[The Final Jury Instructions that I previously gave you reads: “A separate crime is charged against the Defendant in each count. You must decide each count separately. Your verdict on one count should not control your verdict on any other count.” I now add that a jury may return a verdict on some counts and deadlock on others. In other words, a jury may return a verdict on those counts on which it has agreed and leave blank or write “deadlocked” as to those counts as to which there is not unanimity. I did not tell you that earlier because jurors should be neither encouraged nor discouraged to return a partial verdict. At this stage of your deliberations, however, I want to ensure that you understand your options.]

It is your duty, as jurors, carefully to consider, weigh, and evaluate all the evidence that has been presented during the trial. It is also your duty to discuss your views on the evidence with your fellow jurors. And it is your duty to listen to and consider the views of your fellow jurors.

During your deliberations, you should not hesitate to reexamine your views or request that fellow jurors reexamine their views. Likewise, you should not hesitate to change a viewpoint that you held initially, if you become convinced that that viewpoint is wrong. Nor should you hesitate to suggest that other jurors change their views if you are convinced that they are wrong.

Keep in mind that while each of you must decide the case for yourself, you should do so only after an impartial consideration of all the evidence with fellow jurors and after fairly considering and evaluating the viewpoints of fellow jurors.

No juror, however, should surrender an honest belief as to the weight or effect of the evidence solely because of the opinion of fellow jurors or merely for the purpose of returning a verdict.

I remind you that the Defendant is presumed to be innocent and that the Government, not the Defendant, has the burden of proof. Also, the Government must prove the Defendant guilty beyond a reasonable doubt.

Those of you who believe that the Government has proved the Defendant guilty beyond a reasonable doubt should stop and ask yourselves if the evidence is really convincing enough, given that other conscientious members of the jury are not convinced. On the other hand, those who believe that the Government has not proved the Defendant guilty beyond a reasonable doubt should stop and ask yourselves if the doubt you have is a reasonable one, given that other equally conscientious members of the jury do not share that doubt. In short, every individual juror should reconsider and reexamine his or her own views.

Fair and effective jury deliberations require frank and forthright exchange of views. As the jury in this case, you have absolute discretion to conduct your deliberations in any way you deem appropriate. I want to suggest to you, however, that because you have not been able to reach a verdict using the methods you have tried so far, you consider the possibility of trying some new methods.

For example, you may wish to have different jurors lead the discussion for a period. Sometimes reconsidering issues from a new or a fresh perspective is helpful. Or you may wish to engage in what is called “reverse role playing.” That is, you might consider having those of you on one side of an issue present or advocate the other side’s position, and vice versa. Either of these methods might enable you to better understand one another’s positions.

By suggesting these different methods of deliberation, I want to stress that I am not dictating to you how you should conduct your deliberations. Nor am I attempting to pressure you to reach a verdict or demanding that you reach a verdict at all costs. There is no requirement, of course, that you reach a verdict in this case.

Instead, I am merely suggesting that you consider additional or alternative methods of ensuring that each juror has a full and fair opportunity to express his or her point of view and that all jurors strive to consider and understand and engage the views of their fellow jurors.

During your further deliberations, you should also reconsider the instructions that I previously gave you and that you have in the jury room. All the instructions, I remind you, are important. And you should consider this supplemental instruction in conjunction with the other instructions that I have previously given.

Nothing that I have said in this Supplemental Instruction is meant to rush you or pressure you into agreeing on a verdict. I want to emphasize that. Take as much time as you need to discuss things. There is no hurry. I now ask you to take this Supplemental Instruction back into the jury room and continue your deliberations with these additional comments in mind.