The following instructions are provided for situations that might arise while the jury is deliberating:
CR03-101. Hung Jury Charge (Allen charge) (06/18/03). This is a version of the so-called “Allen charge,” a term that derives from Allen v. United States, 164 U.S. 492, 501 (1896), where the U.S. Supreme Court upheld a supplemental jury instruction to continue deliberations. Many states, including Vermont, have since rejected the traditional Allen charge as impermissibly coercive and instead adopted ABA Standard 15-5.4. State v. Rolls, 2020 VT 18, ¶¶ 13–15. “[A] trial court may issue a supplemental jury instruction to encourage a jury to continue deliberations when they cannot agree on a verdict” and “[p]roviding such an instruction is a matter within the court’s sound discretion.” Id. ¶ 17. However, a court “may not issue” such an instruction “that coerces the jury into arriving at a verdict.” Id. Nor may it issue “a traditional Allen charge or any instruction that substantially deviates from ABA Standard 15-5.4.” Id.
While an instruction that adheres to the ABA Standard “will not be inherently coercive, . . . whether such an instruction is coercive in a particular case will depend on the facts of that case” and may require a court to consider “the language of the instruction [and] its surrounding circumstances,” including “the timing of the instruction and verdict, errors in the proceedings, and whether the court has imposed an artificial time limit on the length of deliberations.” Id. ¶¶ 16–17; see also id. ¶¶ 18–20 (trial court’s supplemental instruction to continue deliberations was a “permissible, noncoercive charge that mirrored the ABA standards”); State v. Perry, 131 Vt. 337, 339–41 (1973) (same).
This instruction is intended to adhere to the applicable ABA Standard as discussed in Rolls, 2020 VT 18 and Perry, 131 Vt. 337. Use this instruction with caution, and only after reviewing Rolls and Perry. The judge should discuss this instruction with the attorneys before giving it to the jury.
CR03-106. Partial Verdict Charge (11/20/09). This variation on the hung-jury charge is meant for those situations in which there are multiple counts and the jury has indicated that they cannot agree, but it is not clear whether the jury cannot agree on any count or only on some of the counts. As with the hung-jury charge, CR03-101, this instruction should be used with caution, and the judge should discuss it with the attorneys before giving it to the jury. State v. Perry, 131 Vt. 337, 339 (1973). This instruction is meant for cases involving multiple counts, as opposed to cases in which the jury has been asked to consider lesser-included offenses.