Allen instruction given before opening results in new trial

Leslie Hess won in State v. Rivera, No. 100,848 (Kan. App. Jan. 29, 2010)(unpublished), obtaining a new trial in a Ford County DUI prosecution. The COA reversed based on instructions given before opening statements:

Prior to opening statements the trial court issued a series of oral instructions, concluding, “If you should fail to reach a decision the case is left open and undecided. Like all cases it must be decided sometime. Another trial would be a heavy burden.”

During deliberations, the jury indicated they had reached an impasse. The district court had the jurors continue deliberating.

The State concedes that based on Salts and Page, [blogged about here and here] the district court erred in instructing the jury in this case that “[a]nother trial would be a heavy burden on both sides.” And, as it must, the State concedes that here, as in Page, the jury advised the court that it was at an impasse. Nevertheless, the State contends the facts here do not require reversal because here, unlike in Salts or Page, the objectionable instruction was orally given to the jury at the outset of trial rather than provided both orally and in writing just prior to deliberations.

These distinctions do not weaken, or undercut, the rationale of Salts or Page. Whether given at the start of the trial or at the close of the trial and whether given orally or in writing, the instruction was misleading in that it advised the jury that in attempting to reach a verdict, it should consider that a second trial might be burdensome to all parties. And significantly, as in Salts and Page, the trial court here gave the jury a conflicting instruction that “[t]he disposition of the case [after the jury's verdict] is a matter for determination by the Court” and not the jury's concern. Finally, as in Page, the effect of the erroneous deadlocked jury instruction here is more significant in light of the jury's report to the court that it was at an impasse.

Another example of the importance of Salts. I wonder why we couldn't agree to just let juries do their thing and stop all of these extraneous attempts to tell the jury how to do their thing.

Hat tip to Linda Eckleman.

[Update: the state filed a PR on February 16, 2010.]

[Further update: the KSC denied the state's PR and the mandate issued on July 1, 2010.]