Swygert, Chief Judge, Duffy, Senior Circuit Judge, and Kiley, Fairchild, Cummings, Pell Stevens and Sprecher, Circuit Judges. Stevens, Circuit Judge (concurring). Pell, Circuit Judge (concurring in part and dissenting in part). Swygert, Chief Judge (dissenting in part, concurring in part).
This case has been reheard en banc in an attempt to establish greater certainty in district courts in this Circuit, and to conserve judicial energy by possibly avoiding appeals and retrials, in regard to the giving of the so-called Allen or "dynamite" charge as a supplemental instruction to a deadlocked jury.
The Allen instruction was approved by the Supreme Court in Allen v. United States, 164 U.S. 492, 501-02, 17 S. Ct. 154, 157, 41 L. Ed. 528 (1896)*fn1 and although no court has held that the instruction itself is unconstitutional, it has had a stormy career.*fn2
From 1963 to 1969, the Allen charge, supplemented by a second paragraph advising the jury that the case "must be retried" if the jury failed to reach a verdict, was generally given in this circuit as part of the Manual on Jury Instructions in Federal Criminal Cases (La Buy Instructions), 33 F.R.D. 523, 611 (1963).*fn3
In United States v. Brown, 411 F.2d 930, 933-934 (7th Cir. 1969), we held as follows:*fn4
Because the district courts within this Circuit have encountered difficulties in determining what precise language to include in a supplemental charge and when it should be given, it is important for this court to articulate with specificity our standards. In dealing with supplementary instructions, the primary task of an appellate court is to set the standards for the proper conduct of the trial judge faced with a hung jury. We have reconsidered not only the presently approved form of the Allen charge as set forth in the LaBuy Instructions, but the numerous judicial decisions and scholarly literature in this field critical of the Allen charge. We have concluded that it would serve the interests of justice to require under our supervisory power that, in the future, district courts within this Circuit when faced with deadlocked juries comply with the standards suggested by the American Bar Association's Trial By Jury publication. These standards specifically provide:
5.4 Length of deliberations; deadlocked jury.
(a) Before the jury retires for deliberation, the court may give an instruction which informs the jury:
(i) that in order to return a verdict, each juror must agree thereto;
(ii) that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;
(iii) that each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors;
(iv) that in the course of deliberations, a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous; and
(v) that no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict.
(b) If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in subsection (a). The court shall not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.
In order to avoid the potential for prejudice and coercion to which we have referred, district courts in this Circuit are required henceforth to charge deadlocked juries in both criminal and civil cases ...