What is an “Allen Charge?”

In State v. Rampey, decided on October 5, 2022, the SC Supreme Court reversed a CSC with a minor conviction, finding that the Allen charge given by the court at Rampey’s trial was unconstitutionally coercive.

What the heck is an “Allen charge?”

It doesn’t come up every day in the practice of law, but if you are charged with a crime, if your case goes to trial, and if it’s a close call, the wording of the court’s Allen charge could make the difference between an acquittal or decades in prison…

In this article, we will look at:

• What it means when the court gives an Allen charge,
• Why Allen charges are inherently coercive,
• When a trial lawyer should object to the court’s Allen charge, and
• How the courts could easily fix the coercive effect of Allen charges.

WHAT IS AN ALLEN CHARGE IN SC?

Many people think that there are only two possible outcomes at a criminal trial – guilty or not guilty.

This isn’t true, though – the possible outcomes could include:

• Guilty as charged,
• Not guilty on all counts,
• Guilty on some counts and not guilty on others,
• Not guilty as charged but guilty of a lesser-included offense,
• “Technically guilty” but the jurors acquit because it is the right thing to do (jury nullification), or
• A “hung jury” where all jurors cannot agree on the same verdict.

Judges tend to prefer simple verdicts like “guilty” or “not guilty,” and, depending on the facts of a case and the judge’s predisposition, judges often prefer “guilty.”

Most judges do not like the idea of a hung jury and the resulting mistrial. It’s messy. It means that the State, if they don’t take the hint and hang it up, must go through the entire trial procedure again. Prosecution and defense must subpoena their witnesses and experts and pay the expenses of trying the case a second time.

Even worse (for a defendant-hostile judge or prosecutor), the defendant may “get off” with no consequences for their (unproven) behavior, because, if the prosecution couldn’t prove the case in the first trial, they might need to accept that they cannot prove the case and move on…

So, when jurors send a note out telling the court that they are deadlocked and cannot reach an agreement, the court will often give them an “Allen charge” which, like a charge of dynamite, is intended to “shake the jurors up” and get them to reach an agreement.

When is an Allen Charge Coercive?

Understanding why prosecutors and judges want to give an Allen charge in the first place, how could it not be coercive?

Someone on the jury is saying X. Someone else on the jury is saying Y. Based on the evidence they heard during the trial and the attorney’s arguments, each side has made their decision. The real problem for the court is not, “How do we help them to reach a fair agreement?” but rather, “How do we force the minority jurors to change their minds?”

The court doesn’t say to the jurors, “If you cannot agree, a deadlocked jury is another option that is quite common in our courtrooms.” Instead, the court says something like, “The parties (read: the State) have spent considerable resources to try this case, they will be forced to spend considerably more resources if they have to try this case again, and the parties (read: the victims) deserve a verdict.

Minority, holdout jurors are left wondering if they are going to be kept there as hostages until they change their minds. What’s more important, getting back to work, home, and family, or this defendant they’ve never met before? Why would the court be pushing so hard unless the judge thinks the defendant is guilty?

They’ve told the judge they could not agree, and now the judge has all but ordered them to reach an agreement and sent them back to the jury room where they either sit staring at one another or continue to argue – an unpleasant situation either way.

HOW CAN COURTS FIX THE COERCIVE NATURE OF ALLEN CHARGES?

In Rampey, the SC Supreme Court found that the trial court’s Allen charge was coercive because it all but ordered the jurors to reach a verdict.

For example, the trial court told the jurors:

• “I ask you to return to your jury room and attempt to come to a verdict,”
• “These parties deserve a verdict,”
• “I do want to impress upon you that there have been many resources that’s been brought to bear this week to bring this case to trial. The State of South Carolina, the County of Pickens, the parties to this case have expended substantial and significant resources to bring this case to trial,” and
• “This is important and a lot of resources have been expended to get to this point in time.”

The trial court did not tell the jurors that “no juror should surrender his or her conscientiously held beliefs simply for the sake of reaching a verdict,” although the defense objected to this and asked the court to re-instruct the jurors.

After the guilty verdict, the trial judge polled the jurors and asked them if any felt as though they “compromised a firmly-held position and simply agreed to go along with the remaining” jurors to vote guilty – the SC Supreme Court said this was too little, too late, and did not make the Allen charge any less coercive.

How can courts fix the coercive nature of an Allen charge?

Don’t give an Allen charge…

The only reason you are giving the Allen charge is to coerce jurors into changing their minds, thereby avoiding a mistrial. If the jurors say they are deadlocked, just declare a mistrial.

If courts are going to insist on giving an Allen charge (and they are), how could they make it less coercive?

Tell the jurors that there are three possible results – guilty, not guilty, or deadlocked. Tell them that their verdict must be unanimous, but, if it is not, the court must declare a mistrial and the defendant must be tried again before they can be convicted. Send them back to the jury room with instructions to continue deliberations but tell them if the court receives a second note saying they are deadlocked, then the court will declare a mistrial.

When Should an Attorney Object to an Allen Charge?

Understanding that trial courts are going to give Allen charges and that those jury instructions are going to be coercive, what should a trial lawyer listen for and object to during an Allen charge?

An attorney should object and ask for a curative instruction (and, in some cases, then object to the sufficiency of the curative instruction) any time the court’s Allen charge:

1. Include[s] any language such as “You have got to reach a decision in this case,”
2. Overemphasizes the resources expended to bring a case to trial or the expenses of a retrial,
3. Appears to be directed at the minority jurors, or
4. Fails to instruct jurors that they do not need “to surrender their own conscientiously held beliefs” or “merely acquiesce in the majority opinion.”

What Will Happen to Rampey now that the Conviction is Reversed?

The defendant was charged with CSC with a minor second degree but convicted of the lesser included offense of CSC with a minor third degree.

Rampey will go back to the county jail, where, depending on the circumstances, he may be bonded out as he awaits a retrial. Because he was acquitted of CSC with a minor 2^nd degree, he can only be charged with CSC with a minor 3^rd degree in his retrial. The charges could be dismissed, he could accept a new plea offer, or he may face trial again – but only on the lesser charge.

GOT AXELROD?

If you have been charged with a crime in SC, or believe you are under investigation, get an experienced criminal defense attorney on your case immediately. Your criminal defense lawyer on the Axelrod team will investigate your case, get your case dismissed, negotiate an outcome that is acceptable to you, or try your case to a jury.

Call Axelrod & Associates now at 843-916-9300 or email us online to speak with a Myrtle Beach criminal defense lawyer on the Axelrod team today.