My Old Friend Allen From 1896 & Daniel Penny Trial. By Rich Hechter, Attorney Morris Law Group, P.A.

I just heard the Daniel Penny jury is deadlocked and can not unanimously agree to a verdict.

In this case, the judge only has two choices: 1. Call a mistrial and return the case to the prosecutor to see if he/she wants to re-try it; or, 2 Give an Allen Instruction.

An Allen Instruction is something derived from the U.S. Supreme Court case of Allen vs. U.S. (from 1896). When look at these old dates, I really can't fathom how people back then lived without modern toilets, cars, TV, Radio, Electricity, Voice Mail and Smart Phones. There was no 7/11s or Speedways. No Targets or Walmart's. Where did people get their ice cubes from? Crazy.

Anyway, an Allen instruction is used when the jury becomes deadlocked and can't make a numinous decision. In this case, the judge will give a bit of very subtle pressure for the jury to continue to deliberate and return a verdict to bring finality for the State and the Defendant.

The courts find it bad and a mistake (we call it reversible error) for the judges to go to far to indicate the jury MUST make a decision. In Minnesota, The Minnesota Supreme Court holds “that it is error to charge a jury that a case must at some time be decided.” Instructing a jury that it must reach a verdict constitutes error for two reasons. First, it is a misstatement of the law, because a hung jury is a legitimate outcome to a trial. Second, the statement is coercive, because telling a jury that it must reach a verdict may cause jurors holding a minority viewpoint to surrender their honest beliefs in order to reach a unanimous verdict. This instruction is particularly coercive when delivered to a jury that is at an impasse

The judge in the Penny case is now considering doing a soft Allen Instruction. If it is too hard, the case gets reversed and the parties get a new trial. It's a fine line to walk.