On certification to the Superior Court, Appellate Division.
For concurrence in result as to Part IV -- Chief Justice Wilentz and Justices Sullivan and Pashman. For reversal and remandment -- Chief Justice Wilentz and Justices Sullivan, Pashman, Schreiber, Handler and Pollock. For affirmance -- None. The opinion of the Court was delivered by Handler, J. Justices Schreiber and Pollock vote with the opinion in its entirety. Chief Justice Wilentz and Justices Sullivan and Pashman vote with Parts I, II, and III of the opinion and concur in the result of Part IV. Justice Clifford did not participate. Pashman, J., concurring. Chief Justice Wilentz and Justice Sullivan join in this opinion.
The issue presented in this appeal is whether it is plain error for a judge in a criminal trial to give repeated supplemental instructions, commonly known as an " Allen charge,"*fn1 to jurors who had indicated on three occasions that they were deadlocked and unable to reach a unanimous verdict. Defendant contends that the repeated use of the Allen charge, which is intended to persuade the jury to reach a unanimous verdict on defendant's guilt or innocence, was so inherently coercive that it justifies reversal of his conviction under the doctrine of plain error.
We have determined that the so-called Allen charge, as commonly applied and as presently formulated, does have unacceptable coercive effects upon jury deliberations and its use can no longer be sanctioned in criminal trials in this State. Further, the repeated use of the modified Allen charge in this case did constitute reversible error under the plain error doctrine. We accordingly reverse defendant's convictions and remand the case for a new trial.
The important issue in this case emerges from relatively simple facts. In April 1977 defendant John Stanley Czachor was tried before a jury in the Superior Court of Union County on charges of threatening the life of Mrs. Mary Catrone on two occasions and of possession of a pistol without a permit and with intent to use it unlawfully on those occasions. Trial of these charges was completed in one day. The case went to the jury at 11:00 a.m. on the second day. At 2:35 that afternoon the jury
reported an impasse and the trial judge delivered a modified Allen charge. At 5:15 p.m., the jury again reported its inability to reach a unanimous verdict and the judge sent the jurors home for the evening. The next morning the judge delivered a second Allen charge. Three and a half hours later the jury again reported that, despite sincere efforts, it was impossible to reach a unanimous decision. Following a lunch recess the judge delivered still a third Allen charge. The jury returned an hour later and, in response to an inquiry from the trial judge, announced unanimous guilty verdicts on four of the six counts. After an instruction pertaining to the remaining counts, the jury deliberated briefly and returned with verdicts on the remaining charges. On appeal, defendant, not having objected at trial to the judge's use of the Allen charges, contended that giving the charge for the third time was plain error. The Appellate Division rejected this contention and affirmed the convictions in a brief, unpublished per curiam opinion.
We turn first to the question of whether the so-called Allen charge as generally used in current practice carries with it an impermissible potential for prejudice.
The United States Supreme Court sanctioned a jury charge of the kind utilized in this case in Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896), hence its common designation as the " Allen charge." The supplemental instruction which the trial judge gave in that case emphasized to the deadlocked jury that each juror "should examine the question . . . with a proper regard and deference to the opinions of each other . . . [and] that they should listen, with a disposition to be convinced, to each other's arguments." 164 U.S. at 501, 17 S. Ct. at 157, 41 L. Ed. at 531. It further importuned the jury that "if much the larger number were for conviction [or for acquittal], a dissenting juror should consider whether his doubt was a reasonable one . . . [and] whether [the juror] might not reasonably doubt the correctness of a judgment which was not concurred
in by the majority." Ibid. The Supreme Court found no error in this supplemental instruction, stating that
[i]t certainly cannot be the law that each juror should not listen with deference to the arguments, and with a distrust of his own judgment, if he finds a large majority of the jury taking a different view of the case from what he does himself. [ Ibid. ]
In State v. Williams, 39 N.J. 471 (1963), cert. den. 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963), this Court upheld the use of an Allen charge in a criminal case. The trial court's supplemental charge emphasized the time, expense, and effort that had gone into the trial and instructed the jury that if they failed to return a verdict "the case will have to be retried." Id. at 481. On appeal, defendant contended that the repeated emphasis on discussion and adjustment of views necessarily caused one or more of the jurors to abandon firm convictions and further, that the court's urging of agreement encouraged jurors to compromise their views in an effort to reach a common conclusion. The Court rejected these contentions because it believed that the coercive aspects of the charge were adequately balanced by other instructions designed to preserve juror independence. It stated that
[a] judge may urge upon the jury the importance of reaching an agreement, as long as he instructs them that such agreement is not to be had at the sacrifice of the conscientious convictions of individual jurors. . . . We see nothing in the supplemental charges which would in any way interfere with the independent thinking of the members of the jury. The essence of the instructions was nothing more than an earnest request to the jurors that they should consider each other's view and attempt to reconcile their differences in an effort to agree upon a verdict if they could conscientiously do so. [ Id. at 484 (citations omitted).]
In State v. DiModica, 40 N.J. 404 (1963), the Court upheld a conviction following a supplemental instruction to jurors that "it was the duty of the jury to arrive at a verdict if that were
possible, and that individual jurors were not to cling stubbornly to the positions they first took without giving due regard to the views of their colleagues." Id. at 414. The Allen charge, which had been involved in the Williams case, was generally endorsed in State v. Hutchins, 43 N.J. 85, 96 (1964). Accord, State v. Wright, 113 N.J. Super. 79, 83-84 (App.Div.1971), rev'd on other grounds 61 N.J. 146 (1972) (so-called " Allen charge," delivered on court's own initiative after approximately four hours of deliberations, fully comported with the mandate in Williams; no error); State v. Boiardo, 111 N.J. Super. 219, 239-240 (App.Div.1970), certif. den. 57 N.J. 130 (1970), cert. den. 401 U.S. 948, 91 S. Ct. 931, 28 L. Ed. 2d 231 (1970); cf. State v. Hodge, 162 N.J. Super. 43, 45-47 (App.Div.1978) (trial court did not err by including a modified Allen charge in its initial jury instruction).
The Allen charge has come under severe criticism from commentators and has been disapproved by a growing number of jurisdictions.*fn2 Fault with the charge rests primarily on the
grounds that it is potentially coercive and inaccurate, that appellate courts are ill-equipped to detect the existence or gauge the extent of jury coercion or confusion, and that the interest in avoiding the expense of mistrial is outweighed by the substantial risk that the right to a fair trial at the hands of an impartial jury is jeopardized by its use.
It is fair to say that the typical Allen charge does not simply remind jurors of their duty to cooperate in collective deliberations. It has a rather different thrust. The charge is intended to undo a jury deadlock. It tends therefore to focus upon possibly the weakest links in the chain locking the jury in disagreement, namely, the minority holdouts on the jury. Hence, the charge usually admonishes specifically and pointedly only those in the minority to reconsider their beliefs in light of the adverse position held by the majority. It also exerts pressures upon jurors by casting indirectly upon them a personal responsibility and sense of guilt for the impasse. It does so through various references to such matters as the expense and waste of a mistrial, the need for a retrial, and the cost and inconvenience of a new trial. The charge further intimates that the dissenting jurors may not be acting properly or conscientiously since another ...