In Brief
A Florida jury is allowed to hang. When one reports that it cannot agree, the judge may read a specific instruction asking it to try again, and that instruction has to tell jurors two things: that the judge cannot demand it, and that if they still cannot agree the case will be mistried and they will be discharged. Leave those out and a conviction can be reversed.
Disagreeing Is One of the Two Things a Jury May Lawfully Do
Most people assume a jury has to reach a verdict. It does not. Florida’s own instruction on the subject says it out loud: there are two things a jury can lawfully do, and they are agreeing on a verdict and disagreeing about what the facts truly are.
When jurors send out a note saying they are stuck, the judge has options. One of them is to declare a mistrial. Another is to ask them to go back and keep working. That second option is where the law gets careful, because a judge asking a divided jury to try again is one push away from telling a holdout to give in.
The Allen Charge, and Why Lawyers Call It Dynamite
The instruction comes from a United States Supreme Court case decided in 1896, Allen v. United States. Lawyers know it as the Allen charge, and its nickname is the dynamite charge, because the point of it is to blast a stuck jury loose.
The Florida Supreme Court approved its use in 1974. Florida courts have been uneasy about it ever since. One appellate court put it plainly: of a trial court’s many difficult duties, few are so delicate as instructing a deadlocked jury, because such instructions are potentially coercive and giving them requires extreme sensitivity to a defendant’s right to a trial by jury.
That is why Florida does not leave the wording to the judge. There is an approved script, Florida Standard Jury Instruction (Criminal) 4.1, and appellate courts have said departures from it are not recommended.
What the Florida Instruction Makes the Judge Say
Two lines in that script are doing almost all of the protective work.
The first is the request itself. The judge asks the jurors to go back in and, taking turns, tell each other about any weakness in their own position. Then comes the qualifier: “By law, I cannot demand this of you.”
The second is the ending. The judge has to tell them what happens if it still does not work: “After you have done that, if you simply cannot reach a verdict, then return to the courtroom and I will declare this case mistried, and will discharge you with my sincere appreciation for your services.”
Read those together and you can see the design. A juror who hears them knows that going back into the room is a request rather than an order, and that the room has a door. A juror who does not hear them may reasonably conclude that nobody is going home without a verdict, which is a very different pressure to sit under at nine o’clock at night.
The Four Things the Judge Has to Avoid
Florida appellate courts have reduced the danger to a list. In giving this instruction, a trial court must avoid all four of the following.
- Coercive deadlines.
- Threats of marathon deliberations.
- Pressure for the surrender of conscientiously held minority views.
- Any implication of a false duty to decide.
The fourth is the one that gets missed. There is no duty to decide. The Florida Supreme Court has said a trial court should not say or do anything that would appear to coerce a juror into a hasty decision, or into abandoning a conscientious belief in order to achieve a unanimous position. On review, the question is whether, under the totality of the circumstances, the judge’s actions were coercive.
And underneath all of it sits the sentence that most jurors never hear: a defendant has the right to have a hung jury.
Ten Minutes, and a Reversal
What that looks like in practice comes from a Second District case, which is the district that covers Pinellas, Hillsborough, Pasco and Manatee.
The trial took one day. Jurors chose to stay past five o’clock rather than come back the next morning, and began deliberating around 5:00 p.m. About an hour in, they reported that they had not reached a unanimous decision. Shortly after, the foreman volunteered that they stood five to one in favor of conviction, and that a unanimous decision was unlikely.
The judge sent them back. In doing so he tracked much of the standard instruction, but he left out the line saying he could not demand further deliberations, and he left out the ending about a mistrial and a discharge with appreciation. What the jury was told instead was to come back and let him know if they still could not agree.
Ten minutes later they returned guilty verdicts on both counts.
The appellate court reversed and sent the case back for a new trial. The omissions, in the context of a jury that had already announced a numerical split and had already said it was stuck, raised the specter of marathon deliberations and may have pressured the lone dissenting juror to give in so that everyone could go home. Because the right to a jury trial is fundamental, the error did not even require an objection at the time to be corrected on appeal.
A related question comes up earlier in a case, when somebody is deciding whether to talk at all. We wrote separately about whether a withdrawn guilty plea can be used against you in Florida, and about the statements made while trying to reach a deal.
If You Are the One Sitting at the Defense Table
Three things follow from all of this, and they matter whether the charge is a DUI or a felony handled by the criminal defense side of the practice.
A hung jury is a real outcome, not a failure. It is not an acquittal, and the State can usually try the case again. But it is a lawful end to a trial and it is sometimes the best available one.
What the judge says to a stuck jury is part of the record. The exact words matter, the order matters, and what was left out matters. That is a transcript question, and it is one of the reasons the record gets read line by line after a conviction.
Timing is evidence of pressure. A jury that reports deadlock twice and then convicts ten minutes after being sent back has told you something about what it heard. Courts look at the whole picture, including how long the jury had been at it and what time of night it was.
None of this is a reason to expect any particular result in any particular case. It is a reason to know that the instruction has a script, that the script has protections built into it, and that a departure from it is something a lawyer should be looking for.
The same discipline applies further back in the case, at the stop itself, where what was said and in what order is just as much a matter of record.
This post is general information about Florida law, not legal advice, and it does not create an attorney-client relationship. The deadlock instruction discussed here is Florida Standard Jury Instruction (Criminal) 4.1, and the cases described are Allen v. United States, 164 U.S. 492 (1896), State v. Bryan, 290 So. 2d 482 (Fla. 1974), Thomas v. State, 748 So. 2d 970 (Fla. 1999), and Monforto v. State, 28 So. 3d 65 (Fla. 2d DCA 2009). Standard instructions are amended from time to time and the current version should be confirmed before anyone relies on the wording quoted here. Every case turns on its own facts, and past results do not guarantee a similar outcome.
