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UpButton 3 PJI 4 | Third Circuit (US)
HB-PJI-CA03-03S0400 Download


It is your duty as jurors to consult with one another and to deliberate with a view toward reaching an agreement, if you can do so consistent with your individual judgments. Each of you must decide the case for yourself, but you should do so only after a consideration of the case with your fellow jurors, and you must be open to their opinions. You should not be influenced to vote a certain way, however, by the single fact that a majority of the jurors, or any of them, will vote in a certain way. In other words, you should not surrender your honest convictions concerning the effect or weight of the evidence for the mere purpose of returning a verdict, or solely because of the opinions of the other jurors.

In the course of your deliberations you should not hesitate to reexamine your own views, and to change your opinion if you are convinced that those views are wrong. To reach a unanimous result you must examine the questions submitted to you openly and frankly, with proper regard for the opinions of others and with a willingness to reexamine your own views.

Remember that you are not partisans; you are judges — judges of the facts. Your only interest is to seek the truth from the evidence. You are the judges of the credibility of the witnesses and the weight of the evidence.

If you should fail to agree on a verdict, the case is left open and must be resolved at a later time. There is no reason to think that another trial would be conducted in a better way or that a different jury would decide it any better. Any future jury must be selected in the same manner and from the same source as you.

We try cases to dispose of them and to reach a common conclusion if it is consistent with the conscience of each member of the jury. I suggest that, in deliberating, you each recognize that you are not infallible, that you listen to the opinions of the other jurors and that you do so carefully with a view to reaching a common conclusion, if you can. You may take all the time that you feel is necessary.

I remind you that in your deliberations you are to consider the instructions 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.

You may now retire and continue your deliberations.

COMMENT The instruction is derived from Eighth Circuit 3.07 and former Ninth Circuit 4.6. Cf. Ninth Circuit 3.5. See also Third Circuit (Criminal) Instruction 9.05.

An instruction encouraging a deadlocked jury to reach a verdict should be given with great caution. Such an instruction was approved in Allen v. United States, 164 U.S. 492 (1896). But “Allen” charges often have been criticized as coercive and as an unwarranted intrusion upon the province of the jury.

Note that the model instruction does not specifically encourage those jurors in the minority to reconsider their views or distrust their judgment. An instruction to that effect has been declared to be prohibited in the Third Circuit. See United States v. Fioravanti, 412 F.2d 407, 418 (3d Cir. 1969) (“in this circuit, trial judges are not to give instructions either in the main body of the charge or in the form of a supplement that direct a juror to distrust his own judgment if he finds a large majority of the jurors taking a view different from his. Such an instruction will be deemed error, normally reversible error.”). While it has been held that the prohibition on instructions targeted at the minority of jurors is limited to criminal cases, see Cary v. Allegheny Techs., Inc., 267 F. Supp. 2d 442 (W.D. Pa. 2003), the danger of coercion in such a charge cautions against its use even in civil cases. In concluding that a modified Allen charge was “proper[]” in the context of a particular civil case, the Court of Appeals noted that the charge in question “does not speak specifically to minority jurors.” U.S. Healthcare, Inc. v. Blue Cross of Greater Philadelphia, 898 F.2d 914, 940 & n.32 (3d Cir. 1990).

Courts have also disapproved of statements telling a deadlocked jury that it must reach a decision or “instruct[ing] a deadlocked jury to consider the burdens and expense to the government of a new trial.” United States v. Brennan, 326 F.3d 176, 193 (3d Cir. 2003) (collecting cases). On the latter point, the Court of Appeals has explained that “a charge is unduly coercive when the trial court not only states that a new trial will result, but goes further and unduly emphasizes the consequences, i.e., time, toil, or expense, that will accompany a failure to arrive at an unanimous verdict.” United States v. Jackson, 443 F.3d 293, 298 (3d Cir. 2006) (rejecting challenge to trial judge’s statement that “the case will have to be retried in front of another jury” and reasoning that “any undue coercion created in this case by the brief mention of a new trial was mitigated by” the trial judge’s emphasis on “the government's burden of proof [and] the jurors' responsibility to consider honestly the evidence” and the trial judge’s directive that jurors should not “surrender [their] beliefs for the sake of expediency”).

(Last Updated October 2017)

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