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Understanding The Hung Jury In Colorado – The Modified Allen Instruction And The Effect Of A Mistrial

By H. Michael Steinberg Colorado Sex Crimes Criminal Defense Lawyer – Attorney Specialist

Understanding The Hung Jury In Colorado - The Modified Allen Instruction And The Effect Of A Mistrial


Understanding The Hung Jury In Colorado – The Modified Allen Instruction And The Effect Of A Mistrial

Understanding The Hung Jury In Colorado – The Modified Allen Instruction And The Effect Of A Mistrial – Many misconceptions surround the effect of a declaration of a mistrial either because a jury cannot reach a unanimous verdict after deliberations start or for other reasons during the trial itself. This article is intended to help in explaining how potential hung juries are instructed by judges during those deliberations and when – finally – the trial judge declares a mistrial.

This article also discusses the actual impact of the declaration of a mistrial and why it can mean another trial in the very same case in just a few short months.


First – The Colorado Jury Instruction Read To Juries When They Fail To Reach A Unanimous Verdict – Known As The Modified Allen Instruction

Here is the Colorado Modified Allen Instruction:

Supplemental Instruction — When Jurors Fail to Agree

Since it appears to the Court that your deliberations have been somewhat lengthy without a verdict being reached, the Court wishes to suggest a few thoughts that you should consider in your deliberations, along with the evidence in the case and all of the instructions previously given.

It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching a verdict, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors.

In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.

You are not advocates. You are judges of the facts. Your sole interest is to ascertain the truth from the evidence in the case.

Four Essential Elements Of The Modified Allen Instruction

There are FOUR essential elements of the instruction. When it seems to a trial judge that a jury has been unable to agree on a verdict or verdicts in a Colorado criminal trial, the judge will usually require the jury to continue its deliberations. As part of that urging of the jury to continue deliberations, the judge will usually inform the jury that:

1) 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;

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

3) 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

4) 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.

No Reasonable Probability of Agreement

If, after trying this instruction – sometimes several times – there is no movement or it appears that there is “no reasonable probability of agreement” the judge will declare a mistrial.

One approach that has been rejected by the Colorado Supreme Court is the so called “time-fuse” instruction. This is an instruction that informs a jury that it will declare a mistrial if a verdict is not returned by a specific time. It has been rejected because of the “coercive effect” it has on jury deliberations.

Recently (2015) the Colorado Court of Appeals ruled that a trial Judge has the discretion to advise the jury, when giving a modified-Allen instruction, that the Judge will discharge the jurors and declare a mistrial.

Judges will almost never ask the “numerics” of the jury’s division of votes (whether the divided jury is for conviction or acquittal) but only make inquiry as to whether any progress has been made toward reaching an agreement and what the likelihood is for such future progress.

How It Actually Works At Trial

In past Colorado cases – the Colorado Supreme Court has outlined an analysis of the deadlocked jury to include the following procedure for Judges to use:

The court should first ask the jury whether there is a likelihood of progress towards a unanimous verdict upon further deliberation.

An affirmative response should require further deliberation without any additional instruction.

If the jury indicates that the deadlock is such that progress towards a unanimous verdict is unlikely, the court should then inquire whether the jury is divided over guilt as to any one of the offenses and nonguilt as to all offenses, or instead, whether the division centers only on the particular degree of guilt.

In the event the jury impasse relates solely to the issue of guilt as to any one of the offenses and nonguilt as to all offenses, the court in its discretion may give the Modified Allen Instruction

Lesser Included Offenses

Sometimes a jury is leaning to convicting on a lesser included offense (a crime that is less punitive than the crime charged in the original complaint and information or indictment.

The practice of instructing the jury to return a verdict on the lesser included offense is now prohibited by 18–1–408(8). A judge cannot alleviate a jury deadlock over the degree of guilt by instructing the jury to return a guilty verdict on a lesser-included offense unless the prosecution consents. If ANY juror is convinced by the facts and the law that the defendant is guilty of a greater offense, the jury cannot be instructed to return a verdict on a lesser-included offense.

The Declaration of Mistrial In Colorado

Some basis principles apply to the declaration of a mistrial upon a finding that a jury is “hung.”

It is commonly believed that the constitutional protection of “double jeopardy” guarantees that a defendant who has previously been tried for the a crime cannot be retried for the same offense. The Fifth Amendment of the United States Constitution provides that no person ” shall … be subject for the same offense to be twice put in jeopardy….” U.S. Const. amend. V.

Colorado’s Constitution also provides that no person ” shall … be twice put in jeopardy for the same offense.” Colo. Const. art. II, § 18.

Before a judge can declare a mistrial – the judge must find that a mistrial is necessary because the circumstances surrounding the mistrial amount to ” manifest necessity” and that the judge in a ” scrupulous exercise of judicial discretion [reaches] the conclusion that the ends of public justice would not be served by a continuation of the proceedings.”

Manifest necessity includes those circumstances, “ substantial and real, that interfere with or retard ‘ the administration of honest, fair, even-handed justice to either, both, or any, of the parties to the proceeding.’

A Colorado law provides a non-exclusive list of circumstances where a mistrial is justified and explains the nature of double jeopardy in the context of a Colorado statute. The law is 18-1-301 (see below).

Some Important Factors The Judge Will Consider Before Declaring A “Hung Jury” Mistrial

The trial Judge’s decision to declare a mistrial as a result of a deadlocked jury is guided by several other important public policies that have been handed down by the Colorado Court’s of Appeal. These include the following non-exclusive list:

(1) the collective opinion of the jury that it cannot agree upon a verdict;

(2) the length of the trial;

(3) the complexity of the issues;

(4) the length of time that the jury has been deliberating;

(5) whether the defendant has made a timely objection to a mistrial; and

(6) the effects of exhaustion or coercion upon the jury.

The Doctrine of Double Jeopardy Appears In Colorado Law – 18-1-301

18-1-301. Second trial barred by former prosecution for same offense

(1) If a prosecution is for a violation of the same provision of law and is based upon the same facts as a former prosecution, it is barred by the former prosecution under the following circumstances:

(a) The former prosecution resulted in an acquittal. There is an acquittal if the prosecution resulted in a finding of not guilty by the trier of fact or in a determination that there was insufficient evidence to warrant a conviction. A finding of guilty of a lesser included offense is an acquittal of the greater inclusive offense even though the conviction is subsequently set aside.

(b) The former prosecution was terminated by a final order or judgment for the defendant that has not been set aside, reversed, or vacated, and that necessarily required a determination inconsistent with a fact or a legal proposition that must be established for conviction of the offense.

(c) The former prosecution resulted in a conviction. There is a conviction if the prosecution resulted in a judgment of conviction that has not been reversed or vacated, a verdict of guilty that has not been set aside and that is capable of supporting a judgment, or a plea of guilty accepted by the court. In the latter two instances, failure to enter judgment must be for a reason other than a motion of the defendant.

(d) The former prosecution was improperly terminated. Except as otherwise provided in subsection (2) of this section, there is an improper termination of a prosecution if the termination is for reasons not amounting to an acquittal, and it takes place after the jury is sworn if the case is tried by a jury or after the first prosecution witness is sworn if trial is by court following waiver of jury trial.

(2) Termination is not improper under any of the following circumstances:

(a) The defendant consents to the termination or waives his right to object to the termination. The defendant is deemed to have waived all objections to a termination of the trial unless his objections to the order of termination are made of record at the time of the entry thereof.

(b) The trial court finds that:

(I) The termination is necessary because it is physically impossible to proceed Jeopardy with the trial in conformity with the law; or

(II) There is a legal defect in the proceedings that would make any judgment entered upon a verdict reversible as a matter of law; or

(III) Prejudicial conduct has occurred in or outside the courtroom making it unjust either to the defendant or to the state to proceed with the trial; or

(IV) The jury is unable to agree upon a verdict; or

(V) False statements of a juror on voir dire prevent a fair trial.

A Mistrial Based On A “Hung Jury” And The Double Jeopardy Doctrine

To understand the application of double jeopardy on a finding of a mistrial – it is important to understand first that even if a mistrial is declared, the State of Colorado can make another attempt to convict the defendant if there was a manifest necessity for declaring a mistrial.

In the instance of a mistrial because of a hung jury, the State is allowed to retry the Defendant within 3 months of the declaration of the mistrial (18-1-405 Colorado Speedy Trial Law)

A mistrial occurs when a trial must be terminated before its conclusion. This may occur if improper evidence is admitted, or a witness or party gets sick or for a variety of other reasons.

Mistrials occur for several reasons and motions for mistrials can be granted upon motion of the State prosecutor, the defense counsel, or by the judge. A judge has the discretion to declare a mistrial at any point during the trial if it appears that because of irregularities or errors in the proceeding either party will not receive a fair trial.

There must usually be some prejudicial misconduct by an attorney, a witness or a juror, or upon some other problem in the trial that would invariably cause a reversal on appeal.

Judge’s have wide discretion in this area and usually will not be second guessed by Colorado appellate courts unless there has been a gross abuse of discretion at the trial level. It is believed that the trial Judge is in the best position to determine whether a mistrial is actually necessary.

The standard is a mistrial is appropriate only if the prejudice is so substantial that no other remedies – such as a curative instruction to the jury – will suffice.

Can And When Can The Case Be Retried? – May Depend On Who Is Asking For The Mistrial

While a deadlocked jury ends in the declaration of a mistrial – mistrials can be declared for many reasons. A Defendant who requests a mistrial understands that if the request is granted it nearly always mean a retrial within 3 months.

On the other hand – when a mistrial is the result of something the District Attorney did or at the DA’s requests – then “double jeopardy” prohibits retrial UNLESS the mistrial was as a result of “manifest necessity”. As noted above the manifest necessity doctrine means the trial must be ended because the circumstance “renders it impossible for the substantial ends of justice to be obtained without discontinuing the trial.” The situation must not only be “substantial and real,” it must interfere with or retard the administration of honest, fair, evenhanded justice to either party.”

The manifest necessity doctrine balances the Defendant’s interest in single jeopardy as against the public’s right to retry the charges to another impartial jury. In the case of a deadlocked or so called “hung” jury, the re-trial of a Defendant is NOT barred by the double jeopardy doctrine.

One Last Rule – Open And Public Declaration Of A Hung Jury Required

A trial judge must bring the jury into the courtroom – determine that the jury is “hopelessly deadlocked” before that trial judge can declare a mistrial. The failure to do this important act means that the Defendant cannot be retried as the second trial would be barred by the double jeopardy clause

Understanding The Hung Jury In Colorado – The Modified Allen Instruction And The Effect Of A Mistrial

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ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at hmsteinberg@hotmail.com – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.

A Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. If you are seeking counsel there maybe other more specific technical or legal advice on the information provided and related topics. For that, please contact the author.

If you are charged with A Colorado crime or you have questions about the topic of this article – Understanding The Hung Jury In Colorado – The Modified Allen Instruction And The Effect Of A Mistrial, please call our office. The Law Offices of H. Michael Steinberg, in Denver, Colorado, provide criminal defense clients with effective, efficient, intelligent and strong legal advocacy. We can educate you and help you navigate the stressful and complex legal process related to your criminal defense issue.

Colorado Sex Crimes LawyerH. Michael Steinberg, is a Denver, Colorado criminal defense lawyer with over 30 years of day to day courtroom experience – specializing in Colorado Criminal Law along the Front Range. He will provide you with a free initial case consultation to evaluate your legal issues and to answer your questions with an honest assessment of your options. Remember, it costs NOTHING to discuss your case. Call now for an immediate free phone consultation.


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Understanding The Hung Jury In Colorado - The Modified Allen Instruction And The Effect Of A Mistrial
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Many misconceptions surround the effect of a declaration of a mistrial either because a jury cannot reach a unanimous verdict after deliberations start or for other reasons during the trial itself. This article is intended to help in explaining how potential hung juries are instructed by judges during those deliberations and when - finally - the trial judge declares a mistrial.
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