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Ninth Circuit Sets Limits on Breaking Jury Deadlock

By Karen L. Stevenson, Litigation News Associate Editor – September 14, 2011

Permitting supplemental arguments to the jury on issues identified by the jury as causing a deadlock is an impermissible intrusion on the jury’s role. In United States v. Evanston [PDF], the U.S. Court of Appeals for the Ninth Circuit overturned a guilty verdict in a criminal case because the trial judge, over defense objections, allowed this type of supplemental argument.

District Court Questioned Jurors about Their Impasse
Prosecutors charged defendant Calvin Evanston of assaulting his live-in girlfriend. At trial in the U.S. District Court for the District of Arizona, Evanston and the victim gave different accounts of the incident. After a two-and-a-half-day trial, the jury deliberated five hours but did not reach a verdict.

To break the deadlock, the district court gave Ninth Circuit Model Jury Instruction 7.7, sometimes known as an “Allen” charge (an instruction given to encourage a deadlocked jury to continue deliberating until reaching a decision) and asked the jury to continue its deliberations. After three more hours of deliberations, the jury remained deadlocked.

Over defense objections, the district court asked the jury if additional argument on any particular points might be helpful to resolve the deadlock. The jury identified two issues causing the impasse: (1) witness credibility; and (2) how the victim’s injuries occurred.

The district court then allowed both sides to address the jury on these two issues. After the supplemental argument and two hours of further deliberations, the jury returned a unanimous guilty verdict. In a case of first impression, the Ninth Circuit vacated the verdict, remanding for a new trial.

The court noted that the trial court had “in its arsenal” less coercive means to address the deadlock, including rereading jury instructions relating to the areas of concern, providing a supplemental instruction on the legal standard for causation, or allowing the jury to review portions of witness testimony.

Trial Management or Jury Coercion?
The Ninth Circuit, citing United States v. Berger [PDF], acknowledged the discretion accorded to district courts in controlling trial procedures. It emphasized, however, that this discretion does not permit the court to usurp the jury’s role as sole fact finder.

The district court invaded the jury’s fact-finding role in two ways. First, the “judge’s questioning as to the reasons for the deadlock required that the jury divulge the state of its unfinished deliberations thereby violating the jury’s deliberative secrecy.” Second, the supplemental arguments “injected the court and the attorneys into the jury’s deliberative process, thereby raising the specter of jury coercion.” The appellate court found the trial court’s abuse of discretion to be “particularly egregious.”

“There is no question that the judge’s instructions superseded the court’s traditional role of providing procedural or legal clarification for jurors,” says Oran F. Whiting, Chicago, cochair of the ABA Section of Litigation’s Trial Practice Committee.

“While supplemental argument on legal authority might be acceptable,” observes Grayson D. Yeargin, Washington, D.C., cochair of the Section of Litigation’s Criminal Litigation Committee, “it is hard to imagine a circumstance where supplemental argument on factual issues after the close of evidence would not be prejudicial. It is a perfectly acceptable part of our jury system for a jury to be hung. The court should not try to influence a jury to come to a different result if it requires jurors to give up their independent assessment of the evidence,” cautions Yeargin:

Ninth Circuit Rejects Ad Hoc Adoption of Novel Jury Procedures
The court expressly limited its Evanston opinion to the specific circumstances presented. The better approach may be first to vet such an approach through a rulemaking or legislative procedures such as by amendment to the rules of criminal procedure.

The court noted that Arizona, California, and North Dakota, have each adopted rules allowing supplemental closing argument in criminal cases to assist jurors at an impasse in deliberations. The absence of a federal rule, the court opined, “throws a further shadow upon the practice.”

In a Post-Evanston Decision, Ninth Circuit Upolds Supplemental Argument
Less than a month after deciding Evanston, the Ninth Circuit again considered the propriety of supplemental argument to assist a deadlocked jury in a criminal case in United States v. Della Porta. In Della Porta,the defendant was charged with embezzlement and theft of union assets.

The U.S. District Court for the Central District of California allowed each side 15 minutes of additional argument after the jury indicated it was deadlocked. Relying on Evanston [PDF], the Ninth Circuit concluded that the district court did not abuse its discretion in ordering the supplemental argument where it did not give an “Allen” charge, and never asked the jury to identify the areas of disagreement causing the deadlock. The Ninth Circuit affirmed the lower court’s verdict, finding no intrusion into the jury’s fact finding process, and no coercion in the resulting verdict.

Is Evanston Relevant to Civil Trials?
No civil cases have cited the Evanston or Della Porta decisions yet. In considering what impact the Evanstondecision might havefor civil trials, Whiting sees important parallels: “In civil cases we are not dealing with a person’s freedom. But if supplemental factual argument as in the Evanston trial were allowed, jury deliberations would never be the same, every jury trial could become, in effect, a bench trial.”

Keywords: litigation, trial practice, Ninth Circuit, United States v. Evanston, jury deadlock

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