There is no obligation on the part of a jury to reach a verdict at all costs. Occasionally, a jury will not be able to agree on a verdict. In such circumstances, the court, after careful inquiry, has discretionary authority to declare a mistrial and to discharge the jury.15 In determining whether to discharge the jury, the court should consider the amount of time spent by the jury in deliberations, the extent to which it appears that the jury has made a serious effort to agree and the probability of a continued and permanent disagreement.16
Although a trial judge may not coerce a jury into reaching a verdict, in cases where a jury has informed the court that it is deadlocked, the judge may bring the jury back and provide supplemental instructions, encouraging the jury to reach a verdict and informing the jury of the difficulties that may result from its inability to agree, such as the expense of a retrial, the length of time the case has been pending and the importance of reaching a decision. To avoid the risk of improper coercion, however, the judge must also instruct the jury that each individual juror should not surrender his or her own honest convictions and should not return any verdict contrary to the dictates of personal conscience.17 A court need not inform the parties in advance that it has decided to give such an instruction.18
Although it is not per se prejudicial to give such an instruction, courts should be very cautious in giving such an instruction a number of times. Continuing to press the jury to agree may be considered coercion and thus may constitute reversible error.19 A judge also needs to be sensitive to the context in which the instruction is given, to make sure that the instruction is not made coercive by the surrounding circumstances, such as when the judge has been informed of the numerical division of the jury and there is a risk that the instruction might be seen as being director toward a single holdout juror.19.1 In determining whether or not to give such an instruction, courts should consider (1) the timing of the instruction, (2) the words used in the instruction, (3) the length of the deliberations both before and after the instruction, and (4) the complexity of the case.19.2
15. State v. Maclary, 193 A.2d 195, 197 (Del. Super. 1963); State v. Gamble, 45 A. 716 (Del. Gen. Sess. 1899).
16. V.B. Woolley, Practice in Civil Actions and Proceedings in the Law Courts of the State of Delaware § 693 (1906).
17. Fensterer v. State, 493 A.2d 959, 967 (Del. 1985), rev’d on other grounds, 474 U.S. 155 (1985); Rush v. State, 491 A.2d 439, 452 (Del. 1985); Adkins v. State, 454 A.2d 732, 734 (Del. 1982); Jenkins v. State, 401 A.2d 83, 87 (Del. 1979), overruled on other grounds by Whitfield v. State, 524 A.2d 13 (Del. 1987); Brown v. State, 369 A.2d 682, 684 (Del. 1976); Hyman Reiver & Co. v. Rose, 147 A.2d 500, 506-07 (Del. 1958). This instruction has been called an “Allen charge,” after the decision of the United States Supreme Court upholding such an instruction. Allen v. United States, 164 U.S. 492 (1896), overruled on other grounds by Agnew v. United States, 165 U.S. 36 (1897).
18. State v. Maclary, 193 A.2d 195, 198 (Del. Super. 1963).
19. Fensterer v. State, 493 A.2d 959, 967 (Del.), rev’d on other grounds, 474 U.S. 15 (1985); Britt v. State, 402 A.2d 808, 810 (Del. 1979).
19.1. See Desmond v. State, 654 A.2d 821, 826-28 (Del. 1994) (first instruction not coercive under the circumstances).
19.2. Desmond v. State, 654 A.2d 821, 826 (Del. 1994).
© 2010 David L. Finger