Model Jury - Section 4
CIVIL INSTRUCTIONS
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4. INSTRUCTIONS DURING DELIBERATIONS
4.01 ADDITIONAL INSTRUCTIONS OF LAW
At this point I will give you a further instruction. By giving a further instruction at this time, I do not mean to emphasize this instruction over any other instruction.
You are not to attach undue importance to the fact that this was read separately to you. You shall consider this instruction together with all of the other instructions that were given to you.
[Insert text of new instruction.]
You will now retire to the jury room and continue your deliberations.
Comment
Use this oral instruction for giving a jury instruction to a jury while it is deliberating. If the jury has a copy of the instructions, send the additional instruction to the jury room. All attorneys must be given an opportunity to be present. Unless the additional instruction is by consent of both parties, both sides must be given an opportunity to take exception or object to it. If this instruction is used, it should be made a part of the record. The judge and attorneys should make a full record of the proceedings.
See the Ninth Circuit's A Manual on Jury Trial Procedures, § 1.5.2 (1990).
4.02 CHANGED INSTRUCTION OF LAW
I gave you instruction number in error. Therefore, it is withdrawn, and you shall not consider it for any purpose. As a substitute for instruction number , you will be governed in your deliberations by the following instruction:
[Insert text of new instruction.]
You shall consider this and all of the other instructions that were given you together as the instruction of the court, and you are not to attach undue importance to the fact that this was read separately to you.
You will now retire to the jury room and continue your deliberations.
Comment
Either consent of counsel or opportunity to take exceptions should be given to counsel before giving this and its included instruction. If an instruction is withdrawn and no substitute instruction is given, this instruction must be modified accordingly.
See the Ninth Circuit's A Manual on Jury Trial Procedures, § 1.5.4 (1990).
4.03 RETURN TO DELIBERATIONS AFTER POLLING
The poll which has just been taken of you shows that your decision in this case may not be unanimous and that one or more of you may not have agreed with the verdict. Please return to the jury room and continue your deliberations. Try to reach agreement if you can. Do not be afraid to reexamine your own opinions and change your mind, but do not give up your honest beliefs just because others disagree with you or just to get the case over with.
4.04 DEADLOCKED JURY--CRIMINAL AND CIVIL
Members of the jury, you have advised that you have been unable to agree upon a verdict in this case. I have decided to suggest a few thoughts to you.
As jurors, you have a duty to discuss the case with one another and to deliberate in an effort to reach a unanimous verdict if each of you can do so without violating your individual judgment and conscience. Each of you must decide the case for yourself, but only after you consider the evidence impartially with your fellow jurors. During your deliberations, you should not hesitate to reexamine your own views and change your opinion if you become persuaded that it is wrong. However, you should not change an honest belief as to the weight or effect of the evidence solely because of the opinions of your fellow jurors or for the mere purpose of returning a verdict.
All of you are equally honest and conscientious jurors who have heard the same evidence. All of you share an equal desire to arrive at a verdict. Each of you should ask yourself whether you should question the correctness of your present position.
I remind you that in your deliberations you are to consider the instructions I have given you as a whole. You should not single out any part of any instruction, including this one, and ignore others. They are all equally important.
You may now retire and continue your deliberations.
Comment
The committee recommends that a supplemental instruction to encourage a deadlocked jury to reach a verdict should be given with great caution.
An earlier form of instruction for a deadlocked jury was approved by the Supreme Court in Allen v. United States, 164 U.S. 492, 501 (1896). However, "Allen" or "dynamite" jury instructions have been repeatedly criticized as constituting an unwarranted intrusion by the court upon the province of the jury.
Before giving any supplemental jury instruction to a deadlocked jury, the committee recommends that the court review United States v. Nickell, 883 F.2d 824 (9th Cir. 1989); United States v. Seawell, 583 F.2d 416 (9th Cir.), cert. denied, 439 U.S. 991 (1978); United States v. Seawell, 550 F.2d 1159 (9th Cir. 1977); and the Ninth Circuit's A Manual on Jury Trial Procedures, §§ 1.5.6-1.5.7 (1990).