26 April 2005

Dynamite Charge from Titcomb

When a jury tells the judge it is deadlocked, the judge will call them out and give them a "Dynamite Charge." Defense attorneys hate this because, while the words are putatively neutral, their arrangement and meaning is often taken as an instruction for any holdouts favoring the Defendant to cave in.

I've only seen one judge read the dynamite charge and make it sound neutral. When I've heard it out of other judges' mouths it sounds an awful lot like, "Go in there and convict this guy so we can all go home and get some supper."

I've never seen it used but here's a version of this charge pointed out to me today by another lawyer (calling it the "Titcomb Charge"):

What I am about to say does not mean that you are going to be made to agree or that you are going to continue deliberations until you arrive at a verdict.

Trials are expensive and the jury must decide the issues in the case. If you cannot decide, then we will have to get another jury to decide the issues. I see no reason why you as jurors are not as competent and able to decide the issues as any other jury.

It is your duty to make an honest and sincere attempt to reach a verdict. Of course, that must be unanimous. Jurors should be open-minded and listen to argument of others.

Talk over the issues and evidence freely and fairly. Each juror must decide the issue for himself or herself, but only after an impartial consideration of the evidence with his or her fellow jurors.

In the course of deliberations a juror should not hesitate to re-examine his or her views and change his or her opinion if convinced it is erroneous.

Each juror in the minority view should reconsider such minority view in light of the opinion of the majority. And, likewise, each juror in the majority view should give equal consideration to the views of the minority.

No juror should surrender his or her conviction as to the weight of the evidence, solely because of the opinion of his or her fellow jurors or for the mere purpose of returning a verdict.

As fairminded individuals, then, I'm asking you to go back, to retire, to make another honest effort to come to a conclusion on all the issues presented in the case, keeping in mind what I said to you in this instruction.

Thank you and you may retire for one more effort.
So, how many people out there want that read to their jury?


Anonymous said...

We have that here too - the "Chip Smith" or "Allen" charge.

You hit the description right on the head.

Anonymous said...

Here's the text of the similar charge:

The instructions that I shall give you now are only to provide you with additional information so that you may return to your deliberations and see whether you can arrive at a verdict. Along these lines, I would like to state the following to you.

The verdict to which each of you agrees must express your own conclusion and not merely the acquiescence in the conclusion of your fellow jurors. Yet, in order to bring your minds to a unanimous result, you should consider the question you have to decide not only carefully but also with due regard and deference to the opinions of each other.

In conferring together, you ought to pay proper respect to each other's opinions and listen with an open mind to each other's arguments. If the much greater number of you reach a certain conclusion, dissenting jurors should consider whether their opinion is a reasonable one when the evidence does not lend itself to a similar result in the minds of so many of you who are equally honest and equally intelligent, who have heard the same evidence with an equal desire to arrive at the truth and under the sanctions of the same oath.

But please remember this. Do not ever change your mind just because other jurors see things differently or to get the case over with. As I told you before, in the end, your vote must be exactly that - your own vote. As important as it is for you to reach a unanimous agreement, it is just as important that you do so honestly and in good conscience.

What I have said to you is not intended to rush you into agreeing on a verdict. Take as much time as you need to discuss the matter. There is no need to hurry.

Ken Lammers said...

You've gotten a judge to give that instruction?

Anonymous said...

Yep, that's the standard instruction to be used here when the jury is deadlocked! It usually happens in the middle of deliberations - and if you're unlucky, on a Friday - which means a verdict is forthcoming.

I did a quick LEXIS search and found 70 appellate and supreme court opinions with the term "Chip Smith" in them. It's been a settled part of jurisprudence here for a while.

Ken Lammers said...

The wording just seems so . . . balanced. I bet a Virginia prosecutor would flip if I offered that one.

Maybe if my jury on Monday gets stuck I'll try it.

Shame on you Tom if you just read that.

Anonymous said...

It seems balanced, yes. The problem is that I'd rather have a hung jury than this instruction.

More often than not the result of this instruction is a quick quick conviction - usually guilty.

Good luck on your trial!

Mister DA said...

This is the one out judges use, if they ever give one. Most often they do not. The "common law" of this county is something on the order of - if they've been out a day and say they are hung, then hung they are.

"You have returned from deliberations, indicating that you believe you cannot reach a verdict. I am going to ask you to please return to the jury room and resume your deliberations in the hope that after further discussion you will be able to reach a verdict. As you deliberate, please keep in mind the guidelines I gave you earlier.
Remember, it is your duty to consult with your fellow jurors and try to reach agreement, if you can do so without violating your own judgment. To return a verdict, you must all agree, and the verdict must represent the judgment of each of you.
As you deliberate, you should carefully and seriously consider the views of your fellow jurors. Talk things over in a spirit of fairness and frankness.
Naturally, there will be differences of opinion. You should each not only express your opinion but also give the facts and the reasons on which you base it. By reasoning the matter out, jurors can often reach agreement.
When you continue your deliberations, do not hesitate to rethink your own views and change your opinion if you decide it was wrong.
However, none of you should give up your honest beliefs about the weight or effect of the evidence only because of what your fellow jurors think or only for the sake of reaching agreement.