So what happens when a jury says they are deadlocked? There are a few options. The judge can declare that they jury is “hung”, and declare a mistrial. This would permit the prosecution to re-try the case in front of a different jury. Or, the judge can tell the jury to continue their deliberations. Or, the judge can send the jury back to deliberate after first giving them a specific charge on the law. This charge is often called an “Allen charge”, after the 1896 Supreme Court decision in Allen v. United States. It’s sometimes referred to as the “dynamite” charge, because it’s intention is to dislodge jurors who are entrenched in their position and try to ensure a unanimous verdict. The Allen charge (or Spencer charge, as it’s referred to in Pennsylvania) essentially directs the jurors to reexamine their beliefs and consider the arguments of their fellow jurors. It reminds the jurors that if they are unable to reach a unanimous verdict that the case will need to be re-tried in front of a different jury, and there’s no reason to believe that a new jury would see the evidence any differently than the present one. Sometimes it contains language urging jurors who are in the minority to consider the arguments of the jurors in the majority.
There is an argument to be made (and often is made by defense attorneys) that this charge is unfair to defendants, as it can have an effect of coercing jurors to change their votes. That argument is rarely successful, however. Judges are not limited in the number of times they can give a jury the Allen charge. I remember one murder trial I handled where the Allen charge was given 4 times to the jury over 7 days of deliberation. Ultimately, they were almost evenly split and never reached a verdict.
In the Bill Cosby trial, presiding Judge Steven O’Neill gave the jury Pennsylvania’s version of the Allen charge, and they continued their deliberations until they stopped deliberating for the evening. This means that deliberations will continue on Friday. In my own personal experience, a large number of verdicts come in on Fridays. The conventional wisdom is simply that jurors don’t want to have to come back to court after a weekend.
If the jury is ultimately unsuccessful in reaching a unanimous verdict, Judge O’Neill can either continue giving the Allen charge, or he can declare a mistrial. Some defendants consider a mistrial a win of sorts. It’s not a conviction, which is a positive. It also makes the prosecutor’s case more difficult. The defense now has a roadmap of the entire case, along with every witness and what they testified to, so there will be no surprises on a re-trial. If a witness changes her testimony, the defense attorney can cross-examine her on that. Sometimes witnesses are reluctant to return to court to go through the whole process again.
There are other times, however, where a mistrial is not particularly helpful for a defendant. Sometimes a good defense attorney attacked a witness during cross-examination on an area that the prosecution didn’t expect. If the witness testifies again during a re-trial, you better believe they’ll be prepared for that line of questioning. The prosecutor will also be aware of the defendant’s theory of the case, and will have the testimony of any witnesses called by the defense (although in the Cosby case that’s irrelevant, as only one defense witness testified for a total of 6 minutes).
As to what is going to happen tomorrow, no one knows. The jury has a chance to get a good night’s sleep (hopefully), consider their positions, consider their arguments, and start again tomorrow. We’ll see if the dynamite charge changed any of their positions.
The Law Office of Glenn Kurtzrock is available to assist you with your criminal case. We’re available 24 hours a day, 7 days a week. Call right now for a free consultation at (631) 539-1640, or visit our website at https://www.kurtzrocklaw.com