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DEADLOCK, THE “ALLEN CHARGE”
THE ADVOCATE Volume 30, No.1 January 2008
See RCr 9.57(1). As explained in Ali v. Commonwealth, 2007 WL 1159953, (Ky.2007), unpublished,
this jury instruction is referred to as the “Allen charge,” based on a case in which the United States
Supreme Court approved instructions which might be given to a deadlocked jury. See Allen v. U.S.,
164 U.S. 492, 501, 17 S.Ct. 154, 41 L.Ed. 528 (1896). Some defense attorneys object to the giving of
this charge in the belief that the charge has a tendency to make deadlocking pro-defendant jurors
cave in and change their vote. If that is your concern, you should object to giving the instruction
and move for a mistrial on the grounds that the jury should not be coerced into rendering a verdict.
Of course, the argument gets stronger the more times the judge sends the jury back to keep
deliberating.
UNANIMOUS VERDICT
A defendant is entitled to a unanimous verdict under the 6th Amendment and Section 7 of the
Kentucky Constitution. Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972);
Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972). See also RCr 9.82(1).
Unanimity becomes an issue when the jury is instructed that it can find the defendant guilty under
either of two theories, since some jurors might find guilt under one theory, while others might find
guilt under another. The rule is that if the evidence would support a conviction under either
theory, the requirement of jury unanimity is satisfied. If the jury is instructed on a theory under
which it could not have found guilt, however, then the requirement of unanimity is violated because,
in that situation, there is no way to know that every juror voted for conviction under the proper
theory. Davis v. Commonwealth, 967 S.W.2d 574 (Ky.1998). See also Wells v. Commonwealth, 561
S.W.2d 85 (Ky.1978), Boulder v. Commonwealth, 610 S.W.2d 615 (Ky.1980), Hayes v. Commonwealth,
625 S.W.2d 583 (Ky.1981), Burnett v. Commonwealth, 31 S.W.3d 878 (Ky.2000).
If a defect in a verdict is merely formal, the defense must bring the error to the court’s attention
before the jury is discharged; but if the defect is one of substance, the error may be raised after the
jury is discharged such as in a motion for a new trial. Caretenders, Inc. v. Commonwealth, 821
S.W.2d 83 (Ky.1991).
INCONSISTENT VERDICTS
In the Same Trial - The test here is basically the same as in the case of unanimous verdicts: what
matters is not the logical consistency of the verdicts but the sufficiency of the evidence. Inconsistent
verdicts are tolerated as long as there was sufficient evidence for the jury to find guilt on the guilty
verdicts it returned. Commonwealth v. Harrell, 3 S.W.3d 349 (Ky.1999), Fister v. Commonwealth,
133 S.W.3d 480 (Ky. 2003), both citing Dunn v. U.S., 284 U.S. at 393, 52 S.Ct. at 190, 76 L.Ed. at 358
(1932) and U.S. v. Powell, 469 U.S. at 67, 105 S.Ct. at 475, 83 L.Ed.2d at 467 (1984), for the proposition
that “each count of an indictment should be regarded as a separate indictment, and thus consistency
in a verdict is not necessary.”
In Separate Trials – Can a defendant charged with complicity be found guilty, as a matter of law,
when all his co-defendants have already been tried and acquitted? The answer is “yes.” KRS
502.030 says: “In any prosecution for an offense in which the criminal liability of the accused is
based upon the conduct of another person pursuant to ... KRS 502.020, it is no defense that: (1)
Such other person has not been prosecuted for or convicted of any offense based on the conduct
in question, or has previously been acquitted thereof, or has been convicted of a different offense,
or has an immunity to prosecution or conviction for such conduct....”
However, an exception to this rule seems to have been carved out in Robinson v. Commonwealth,
2007 WL 2459196 (Ky.App.2007), to be published, not yet final. In that case, the conviction of the
principal had been reversed after the Kentucky Supreme Court ruled that, as a matter of law, no
offense was committed. The Kentucky Court of Appeals held that since complicity requires the
commission of an underlying offense, the defendant’s complicity conviction would have to be
reversed as well.
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