Follow up on Allen instruction

Rick Kittel had this follow up on my previous entry on a dynamite instruction given before deliberations:

We are arguing that giving of the instruction was reversible error, even though it was given at the beginning of deliberation, because it contains language indicating that another trial would be a burden on both parties. This language (1) is not correct because going to a second trial after a hung jury would not necessarily be a burden to the defendant; in fact it might be quite welcome; and (2) in telling the jury that a trial would be a burden to the defendant the court is effectively telling the jury that the defendant’s exercise of his constitutional rights is a burden to the defendant. This diminishes the defendant’s constitutional rights in the eyes of the jurors and, by association, diminishes the defendant as well. Part (3) of the argument is that the Allen instruction, which tells the jury about the problems of having another trial, is contrary to a separate instruction that informs the jury that it should not be concerned with the disposition of the case after trial. The Allen instruction appears to ask the jury to consider the disposition of the case after trial. Maybe some or all of these issues have been raised before, but it seems to me they are pretty good arguments.

I would add to the first part that describing a jury trial (any jury trial) as a "burden" to the prosecution is probably inaccurate and may denigrate the defendant's right to a jury trial. The reality is that the Constitution places any such "burden" on the prosecution and it should not factor into the jury's determination at all. So, these are some good objections to make during instructions conferences to this instruction. Appellate cases have not been ringing endorsements of this instruction, even when given before deliberations--they just tend to say it is not reversible error. Particularly if there is no objection, appellate courts are not likely to reach this issue in a meaningful way. But we have seen some changes in the PIK instruction based on appellate litigation and, if proper objections are lodged, maybe we can get it even better.