NCJ Number
61609
Journal
Trial Volume: 15 Issue: 10, Dated: (OCTOBER 1979) Pages: 46-47,50-52,71
Date Published
1979
Length
6 pages
Annotation
THE 'ALLEN CHARGE,' UNDER WHICH THE COURT MAY APPLY PSYCHOLOGICAL PRESSURE TO A JURY IN ORDER TO PRODUCE A VERDICT, IS EXAMINED CRITICALLY AND ITS ABOLITION URGED.
Abstract
A TYPICAL ALLEN CHARGE, 'ENEMA CHARGE,' OR 'DYNAMITE CHARGE,' CURRENTLY HAS THREE CHARACTERISTICS. FIRST, IT URGES JURORS TO CONSIDER OTHER JURORS VIEWS WITH A DISPOSITION TOWARD BEING CONVINCED. SECOND, MINORITY JURORS ARE ASKED TO CONSIDER THE REASONABLENESS OF THEIR VIEWS. THIRD, IT IS STATED THAT NO JUROR SHOULD ABANDON A CONVICTION SCRUPULOUSLY HELD. THE ALLEN CHARGE RESULTED FROM AN 1892 CASE IN WHICH, AFTER THREE TRIALS, A 15 YEAR OLD BOY WAS CONVICTED OF MURDER. ALTHOUGH MANY JURISTS BELIEVE THAT IF THE ALLEN CASE WERE TRIED TODAY, A DIFFERENT VERDICT WOULD BE REACHED, THE U.S. SUPREME COURT HAS NOT DIRECTLY EXAMINED THE ALLEN CHARGE SINCE REAFFIRMING IT IN 1898. SINCE THEN, SOME JUDGES HAVE APPLIED THE CHARGE, OTHERS HAVE MODIFIED IT, AND OTHERS HAVE REFUSED TO ALLOW ITS USE. THE 1977 PEOPLE V. GAINER CASE, IN WHICH THE CALIFORNIA SUPREME COURT BANISHED THE ALLEN CHARGE, CLEARLY ILLUSTRATES ITS BASIC FLAWS. CHIEF AMONG THESE FLAWS IS ITS URGING OF JURORS TO CONSIDER FACTORS OTHER THAN THE EVIDENCE AND ARGUMENTS PRESENTED IN OPEN COURT. MOREOVER, MINORITY JURORS ARE PRESSURED TO CHANGE THEIR VIEWS ONLY BECAUSE THEY ARE MINORITY MEMBERS. IN ADDITION, JUDGES USING THE ALLEN CHARGE HAVE OFTEN ALSO REFERRED TO THE TIME AND EXPENSE OF RETRIAL, THEREBY PRESENTING FURTHER PSYCHOLOGICAL PRESSURE AND EXTRANEOUS INFORMATION. IN CONTRAST, AMERICAN BAR ASSOCIATION STANDARDS RELATING TO TRIAL BY JURY CLEARLY PROVIDE LIMITS ON CHARGES. COURTS WHICH HAVE DISALLOWED THE ALLEN CHARGE HAVE APPLIED THESE STANDARDS. IN THE ABSENCE OF A U.S. SUPREME COURT RULING ON THE ALLEN CHARGE, AND IN VIEW OF THE PROBLEMS IT ENGENDERS, ALL USE OF DYNAMITE CHARGES SHOULD STOP. TRIAL JUDGES SHOULD EXERCISE SOUND DISCRETION IN GRANTING OR DENYING MISTRIALS; SUCH ACTION WOULD REDUCE THE COST AND NUMBER OF APPEALS AND WOULD ELIMINATE POTENTIAL PREJUDICE SUFFERED BY DEFENDANTS. FOOTNOTES INCLUDING REFERENCES ARE INCLUDED. (CFW)