What happens after a hung jury in SC?

A jury verdict in SC must be unanimous – 12 jurors must all vote guilty or they must all vote not guilty, and there is no in-between. When the jury cannot reach a decision, they will usually send a note out to the judge letting him or her know that they have reached an impasse.

That impasse is what we call a “hung jury.” What happens then? Usually, the court will consult with the attorneys for each side before calling the jurors out to the courtroom to give them an “Allen charge.”

What is an Allen charge? If the Allen charge does not change the minds of the “holdout jurors,” then what happens after a hung jury?

What Happens After a Hung Jury?

A hung jury means that the trial is over – there is no conviction, but there is also no acquittal. The trial is a “legal nullity,” and the proceedings start over again (or not, as I discuss below).

Because the government wants a conviction, they will push the court to give an Allen charge to the jurors before giving up. Because judges often also want a conviction, or, if they don’t, they still don’t want to see judicial time and resources taken up with a second trial, they will usually give the Allen charge.

What is an Allen Charge?

An Allen charge is an instruction given by the court to the jurors telling them that they should continue deliberating and attempt to reach a unanimous verdict. It’s named after an 1896 case, Allen v. United States.

It’s usually a point of contention between the government, defense, and judge, because an Allen charge, by its nature, is coercive. The holdouts on the jury know that the judge is talking to them, whether or not they have revealed the numerical split.

Most jurors see the judge as the authority figure in the courtroom and are easily influenced by instructions from the court. While the reality is that the most innocuous Allen charge is coercive to some degree (no matter how you look at it, the court is trying to coerce the holdouts to change their mind), the appellate courts have held that some language is impermissibly coercive.

State v. Taylor – When is an Allen Charge Coercive?

In State v. Taylor, decided June 12, 2019, the SC Court of Appeals reversed Taylor’s convictions for murder, attempted murder, and possession of a weapon during the commission of a violent crime because the trial court gave an unduly coercive Allen charge when the jurors were deadlocked.

The Court discusses four factors, from Tucker v. Catoe, that courts should consider to determine whether an Allen charge is coercive:

(1) whether the charge speaks “specifically to minority jurors”; (2) whether the charge includes “you must return a verdict” type language; (3) whether there was an “inquiry into the jury’s numerical division,” which is generally coercive; and (4) whether the time between when the charge was given and when the jury returned a verdict demonstrates coercion.

Although the Court discusses each of the four factors in turn, there were two issues that seemed to be the most important to the Court of Appeals.

“It’s Important That You Come to a Decision in This Case”

First, the trial court “instructed the jurors ‘it’s important that you come to a decision in this case,’ and ‘you should come to a decision in this matter:’”

As to the second factor, the charge instructed the jurors “it’s important that you come to a decision in this case,” and “you should come to a decision in this matter.” This skirts close to the language found coercive in Jenkins v. United States, 380 U.S. 445, 446 (1965) (reversing and remanding case for a new trial because the charge told the jury “[y]ou have got to reach a decision in this case”). There is a glaring difference between the trial court’s obligation to tell jurors they have a duty to attempt to reach a unanimous verdict and telling them they “should come to a decision.” Our supreme court has even cautioned trial judges “against using the following language: ‘with the hope that you can arrive at a verdict.’ Because jurors are not required to reach a verdict after expressing that they are deadlocked, we believe this language could potentially be construed as being coercive.” State v. Williams, 386 S.C. 503, 515 n.7, 690 S.E.2d 62, 68 n.7 (2010).

Why is it a problem to tell jurors they “should come to a decision in this matter?” Jurors are not required to come to a decision. The opposite is the truth – it is perfectly acceptable to disagree and fail to return a verdict. Not only is it acceptable, but it is a juror’s duty to hold fast if they believe a defendant should be acquitted (or convicted, as the case may be).

The Court of Appeals is clear that the trial judge is not required to tell the jurors that they have the right to disagree:

A trial court is not, however, required to advise the jury they have a right to not reach a verdict. See, e.g., United States v. Arpan, 887 F.2d 873, 876 (8th Cir. 1989); but see United States v. Manning, 79 F.3d 212, 222 (1st Cir. 1996) (requiring Allen charge to include instruction that jury has the right to fail to agree).

But that doesn’t make it acceptable to lie to jurors and tell them (or imply to them) that they must reach a verdict…

By the time jurors have retired to the jury room for deliberations, they have spent days or even weeks doing what the judge tells them. When to sit. When to stand. When to speak. When to start for the day. When to end for the day. When to eat. When to pee.

Jurors understand that they must do what the judge tells them, and they’ve been conditioned throughout the trial to do what the judge tells them. If the judge implies that he or she wants a conviction, it is more likely that jurors will convict. If the judge says you must reach a verdict, they will attempt to reach a verdict even when it is not their verdict.

“No Juror Should Yield His Conscientious Conviction”

The other issue that seemed to tip the scale in this case was not what the judge said, but what the judge didn’t say…

The trial court “has the duty to ensure that no juror feels compelled to sacrifice his conscientious convictions in order to concur in the verdict.”

Although the court is not required to tell the jurors the truth, that they do not have to reach a verdict, the court is required to “tell the jurors they should not surrender their conscientiously held beliefs simply for the sake of reaching a verdict, an essential message that sometimes saves borderline charges from crossing the line into coercion.”

Nor did the trial judge’s initial charge at the end of the trial remind the jurors not to surrender their conscientious beliefs during deliberations. The original Allen charge included such a statement, and courts have routinely held its absence reversible error. See Note, Due Process, Judicial Economy & the Hung Jury: A Reexamination of the Allen Charge, 53 Va. L. Rev. 123, 128 (1967) (“Almost without exception the courts have required that the charge contain the statement that ‘no juror should yield his conscientious conviction’ or words to that effect.”).

When holdout jurors are coerced into changing their vote solely for the sake of reaching a verdict, that is not a unanimous verdict – it is a majority verdict disguised as a unanimous verdict.

Waste of Time and Resources?

Although the Court of Appeals did not give it much discussion, it’s also a problem when a trial court tells jurors that they are wasting the judge’s or the state’s time and resources if they cannot agree on a verdict.

From Taylor’s Allen charge:

Understand that both the State and the Defense have extended significant resources and time and effort to get to this point. Also, know that the State and the County has extended resources to get to this point as well. And if you’re unable to come to a verdict in this matter, then, essentially, we’d be left with having to do it all over again, extending additional resources, time and effort…

Again, it really would be a waste of time, effort and resources for us to have to do all of those over again.

The state’s or the court’s time and resources are never a factor that jurors should consider when reaching a verdict, and it’s an inherently coercive statement that is calculated to get the holdouts to cave regardless of their view of the evidence.

A defendant’s guilt or innocence does not rely on the time and resources the state spends trying to convict them, and it is not relevant during the trial or deliberations.

What Happens After a Hung Jury if There is Still no Verdict?

When the jurors are still deadlocked after one or more Allen charges, the Court will declare a mistrial. What happens then?

The state can try the defendant again. They can try the defendant a third, fourth, or fifth time – there is no legal limit on how many times the state can try a person after a hung jury. But will they?

Sometimes, they do. In many cases, however, the defense and prosecution will reach a plea agreement considering the juror’s inability to reach a verdict – depending on which way the jurors were leaning, it could be favorable to the state or it could be favorable to the defense.

On the other hand, the state may realize that they do not have the evidence to convict a person (or they may realize they are trying to convict an innocent person) and the case may be dismissed…

Charleston SC Criminal Defense Trial Lawyer

Grant B. Smaldone is a criminal defense trial lawyer in Charleston, SC who defends state and federal criminal cases in the Eastern SC area.

If you have been charged with a crime in state or federal court in SC, call now at (843) 808-2100 or contact us online to talk to a Charleston, SC criminal defense attorney today.