Hastie and Max Rosenn, Circuit Judges, and McCune, District Judge. McCune, District Judge (dissenting).
On this appeal from a conviction of bank robbery, it is contended that reversible error appears in the trial judge's supplementary charge to the jury.
During the course of its deliberation the jury sent two written communications to the judge. The first read: "It appears that we cannot arrive at any decision in this case. We have one member who refuses to enter into deliberation on the basis that all of the witnesses are not to be believed." The second note read: "The same juror still states that she has doubts that the defendants were the men in the bank and also doubts other parts of the testimony. The remaining jurors cannot carry on effective deliberation due to this unyielding attitude. The question seems to revolve on her understanding of 'reasonable doubt.' Any helpful suggestion would be appreciated."
With the matter in this posture and after the jury had been out for about four hours, the trial judge had the jury returned to the courtroom where he gave the challenged supplementary instructions.
First, the judge repeated his clearly correct charge on "reasonable doubt." Next, he summarized the testimony of the witnesses who had identified the defendants as the robbers and in so doing indicated, inferentially at least, that to him the identification testimony seemed strong and persuasive. Finally, the court said this to the jury:
"Another thing you should bear in mind is this: If this jury cannot agree, the case is going to have to be tried again. It took almost a week -- did take a week -- and all those witnesses are going to have to be called back to testify again. They will be subject to examination, cross-examination, and so forth. So, it is not an insignificant event when a jury does not agree in a case like this. It can produce great additional expense to the government and additional -- well, I think I have said enough."
The appellant excepted to this supplementary charge.
We have recently disapproved the use of a supplementary charge, in that case the so-called Allen charge, "to blast a hung jury into a verdict." United States v. Fioravanti, 3 Cir. 1969, 412 F.2d 407, 419. We reasoned there that a juror should not be subjected to judicial pressure to vote contrary to his honest best judgment because a large majority of his fellow jurors have reached a conclusion to which he is not persuaded.
In this case we think that the concluding sentences of the supplementary charge, however well intended, were incorrect and prejudicial. To the dissenting juror the charge must have meant that she should consider the expense of a new trial to the government and its imposition upon the time of many people as a significant factor that could and should persuade her to change her vote. But a juror's responsibility is to evaluate the evidence and the credibility of witnesses and, if a reasonable doubt as to proven guilt persists, to vote for acquittal. The possibility of a hung jury and a retrial is not relevant to that determination. The jurors should not be told that this circumstance should influence them. United States v. Smith, 4th Cir. 1962, 303 F.2d 341. Contra, Hale v. United States, 5th Cir. 1970, 435 F.2d 737.
In our judgment it was reversible error to give such an instruction.
We are also concerned, though our decision does not turn on this point, that the judge strongly indicated that in his view the identification testimony was adequate and credible without thereafter saying, in substance, that a juror should not vote contrary to his own conscientious best judgment because of any indication of the judge's views. In the setting of a supplemental charge to a hung jury, it is very important that the judge not seem to be imposing his view of the strength of a party's case upon the holdout or holdouts. He should at least minimize this risk by coupling any statement of his views in a supplementary charge with a clear statement, or restatement, of each juror's responsibility to exercise independent judgment.
We appreciate the judge's apprehension that time and money might wastefully be expended in a retrial as a result of jury disagreement in a case in which the evidence of guilty was very strong. But occasional necessity for such a new trial is an unavoidable consequence of a system of trial by jurors who are the sole judges of the facts and can properly convict the accused only if each of ...