When A Colorado Jury Can’t Reach A Verdict – What Happens Next?

By H. Michael Steinberg Colorado Criminal Defense Trial Lawyer

Introduction – When Juries Deadlock

When Colorado juries deadlock or reach an impasse during deliberations oftentimes by sending out a note to the Judge that they are, in fact, deadlocked and asking for guidance…what happens next and why are certain steps taken? What is the analysis during this confusing time?

Under Colorado law the jury note usually triggers a series of exchanges between the jury and the Judge the “modified Allen” procedure. This article, and others I have written in the past, explores that procedure to help shed some light in this area for lawyers and non lawyers.

Colorado law requires that jury verdicts be unanimous. When a jury signals, for example using the jury question (a note they send out of the jury room), that they cannot agree on either a guilty or not guilty verdict, this impasse may indicate a potential “hung jury” or that the jury is “deadlocked”.

Depending on a number of factors including the content of the note or other form of communication, the Trial Judge then has the duty to instruct them as discussed below. Here is “the rub” – how is that duty to instruct played out?

If the Judge determines that  a unanimous verdict cannot be delivered, the Judge may have to declare “a mistrial” due to the hung jury. A mistrial, in this context means the Defendant is not convicted, but neither is he or she acquitted.

Compare: If a Defendant is “acquitted” (a not guilty verdict is reached) double jeopardy “attaches” and the case cannot retried. However, when there is a mistrial,the case  may be retried.

The Basic Rule – The Threshold Determination Of The Level Of “Impasses”

While the procedure is still developing, (there is no real agreement in the Colorado Courts of Appeal – the issue is not “settled” as of 2023), the basic rule as of this writing is that when a Colorado deliberating jury’s question indicates that it might be at an impasse:

1. The Trial Judge must first determine whether progress towards a unanimous verdict is likely.

2. After this “threshold determination” is made, and depending on this determination, the Trial Judge must decide how to further instruct the jury on continued deliberation.

The standard “modified Allen” instruction (see below), if given too early during jury deliberations “may be improperly coercive” based on the unique circumstances of the case at hand.

In a recent Colorado Court of Appeals decision, reversing a jury verdict in an assault case on this issue, People v. Black , the Court of Appeals said this:

[I]nstructing the jury to continue deliberating without any understanding of the intractability of the impasse risks coercing the jurors to reach a compromise verdict.

What Is A Modified Allen Charge?

The so called “modified-Allen “charge” is as follows (it can also be a variation of these words)

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;

Each juror must decide the case for himself, but only after impartial consideration with his fellow jurors;

In the course of deliberation, a juror should not hesitate to re-examine his own views and change his opinion if convinced it is erroneous; and

No juror should surrender his honest conviction as to the weight and effect of the acts solely because of the opinion of his fellow jurors or for the mere purpose of returning a verdict.

Hung Jury – Mistrials

Judges are instructed that Colorado Law requires that a jury shall be discharged by the trial judge without having agreed upon a verdict if it appears to the trial judge that there is no reasonable probability of agreement.

This area is rife with danger for the Trial Judge as a Judge cannot:

“…give an instruction that expressly or impliedly coerces the jury to reach a verdict regardless of whether that would require a juror to ‘surrender his conscientious convictions to secure an agreement.”

An Analysis Of The Procedure To Follow When Colorado Juries Are Deadlocked

If, as in the Black case, a Trial Judge improperly instructs a jury to continue deliberating without first determining whether it was at an impasse, what IS the proper procedure for the Judge to follow?

The key question is this, the Judge must carefully determine the level of the jury’s impasse… how “intractable” has the impasse has become?

Put a little differently, the legal analysis asks these questions:

If we know that a Trial Judge abuses its discretion by giving a coercive instruction to the jury to reach a verdict, and that error violates a Defendant’s constitutional rights to due process, an impartial jury, and a unanimous verdict,

AND,

we know, after the Black case, it is a possible abuse of the Judge’s discretion if a Judge instructs a deliberating jury to continue deliberating without first determining whether the jury was deadlocked and, if so, how intractably,

THEN,

what procedure should be followed?

The Black Case Provides A Procedure To Respond To A Deadlocked Jury In Colorado

The answer to the questions above, when is the wrong time to give the modified-Allen instruction, turns not only on the “content” of the of the jury’s inquiry regarding the impasse, but the responsive jury instruction – focused primarily on the “context” in which that instruction is given.

Timing seems to be the “key” factor – what kind of case is this and how far into the jury’s deliberations?

The Black case instructs that:

If it is early in deliberations and the jury is making progress towards a verdict, an instruction to continue deliberating, even an unqualified one, carries little coercive risk.

That same instruction, however, given to a jury that has been deliberating for longer and is making little or no progress towards a verdict, carries significant coercive risk.

And the coercive risk is even greater if the unqualified instruction to continue deliberating is given to a hopelessly deadlocked jury that has been deliberating for days. Put simply, the coercive risk attached to any instruction to continue deliberating increases with the intractability and duration of the jury’s impasse.

The Black Court recommends that the Trial Court ask the following question (a threshold determination.)

What is the likelihood of progress towards a unanimous verdict if deliberations continue?

(Determining) ….whether any progress has been made toward reaching an agreement and what the likelihood is for such future progress.

If progress is likely, there is no impasse and the trial court can give the jury an unqualified instruction to continue deliberating.

If the trial court determines that progress is “unlikely,” the court may, in its discretion, give a modified-Allen instruction.

The Black Court makes clear that if the jury is at something of an impasse – the “wrong” instruction may actually increase the coercive risk to continue deliberating, and that “the modified-Allen instruction’s prophylactic exhortations may, or may not, mitigate this risk.”

On the other hand, the modified-Allen instruction is preferred to an unqualified and blunt instruction to continue deliberating.

There is no hard and fast rule here. If a jury signals that further progress is possible, the Trial Court should be simple in the Court’s reply – the Court should inform the jury that they may return to the jury room to continue deliberating, as under these circumstances, the modified-Allen instruction could “coerce a hopelessly deadlocked jury into reaching a compromise verdict.”

So, if progress towards a verdict is not just unlikely but is impossible, even a modified-Allen instruction may be impermissibly coercive.

…this threshold determination is critical — the coerciveness of an instruction often depends on the intractability of the deadlock.

For further analysis if this issue – please see People v. Cox (2023), (explores application of the Black case jury deadlock analysis).

Summary and Conclusion – When A Colorado Jury Can’t Reach A Verdict – What Happens Next?

The Tactical And Strategic Impact Of A Hung Jury

Many criminal defense lawyers believe that a hung jury is a better result for the Defendant than a conviction.

In my opinion that depends on whether an appeal is likely to succeed and the very real issues as to whether the Defendant has the emotional and financial resources to mount that appeal and, if failing to reverse the mistrial finding (thus losing the double jeopardy argument) has the emotional and financial resources to defend at the second trial which always includes the psychological impact of that trial on the Defendant and his family and friends.

There will be times when a verdict on a lesser charge is the preferred result.

Finally, when faced with a possible deadlocked jury in Colorado criminal cases at present there is clearly…

…“no “inflexible” per se rule that any time a jury asks a question about reaching unanimity — at any point in its deliberation — the district court must immediately, and without request, launch into the modified-Allen instructional framework.

The analysis is more nuanced.

A Trial Judge’s response to an indication that a jury is potentially deadlocked should be tailored to the facts and circumstances if the case and the nature of the impasses, if any, to include a careful and intelligent inquiry into whether the circumstances as a whole indicate that the jury is in fact deadlocked.

Colorado Criminal Law – When A Colorado Jury Can’t Reach A Verdict – What Happens Next?

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Colorado Criminal Law – When A Colorado Jury Can’t Reach A Verdict – What Happens Next?