The Allen charge is a supplemental instruction a judge gives a jury that has reported it cannot reach a unanimous verdict. It urges the jurors to keep deliberating, to listen seriously to one another, and to reexamine their own views, while telling them not to abandon an honest conviction just to end the deadlock. Courts sometimes call it the “dynamite charge,” “hammer charge,” or “shotgun charge” because of the effect it is meant to have on a stuck jury.
What the Instruction Actually Tells Jurors
The charge has two sides that sit uneasily together. On one side, it reminds jurors of their duty to try to reach a unanimous verdict if they can, and tells them to examine the evidence “with candor and with a proper regard and deference to the opinions of each other.” A juror in the minority is told to ask whether a doubt that makes no impression on equally honest and intelligent fellow jurors is truly a reasonable one.1Justia. Allen v. United States, 164 U.S. 492
On the other side, the charge carries a safeguard: no juror should surrender an honest belief about the evidence just to go along with the group. The Fifth Circuit’s model version tells jurors that “no juror is expected to yield a conscientious opinion he or she may have as to the weight or effect of the evidence” and that if the evidence fails to establish guilt beyond a reasonable doubt, “the accused should have your unanimous verdict of Not Guilty.”
Whether those two messages can coexist without pressuring holdouts is the argument that has followed the charge for more than a century.
When a Judge Gives the Charge
An Allen charge is not a first response to a slow jury. A judge normally gives it only after the jurors have deliberated for a meaningful stretch and told the court they are unable to agree. Before reaching for it, most judges try simpler steps: more time, a readback of testimony, or clarification of a legal point. The charge comes out when those measures have not worked.
If the jury remains deadlocked after the instruction, the judge may give additional supplemental charges. At some point, though, continued pressure crosses from encouragement into coercion, and a judge who leans too hard risks reversal on appeal. When repeated instructions fail, the judge declares a mistrial and the case starts over with a new jury.
The charge can also appear in civil cases, though the coercion concerns carry the most weight in criminal trials, where the defendant’s liberty is on the line. Many civil jurisdictions do not require unanimity in the first place, which reduces both the need for and the controversy around a deadlock instruction.
Where the Charge Comes From
The name traces to Allen v. United States, 164 U.S. 492 (1896). Alexander Allen was tried for murder in the Cherokee Nation, and during the trial the jury reported difficulty reaching a verdict. The trial judge gave a lengthy supplemental instruction encouraging continued deliberation, the jury convicted, and Allen appealed on the ground that the additional instructions had improperly pressured the jury.2Library of Congress. 164 U.S. 492 – Allen v. United States
Justice Brown, writing for the Supreme Court, upheld the instruction. He reasoned that “the very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves,” and that a juror who finds a large majority disagreeing should at least “distrust his own judgment” enough to listen closely. The Court saw a line between encouraging honest discussion and forcing a change of vote, and held the instruction fell on the acceptable side.1Justia. Allen v. United States, 164 U.S. 492
Still Good Law After Lowenfield v. Phelps
Nearly a century later, the Supreme Court revisited the issue in Lowenfield v. Phelps, 484 U.S. 231 (1988), a capital case from Louisiana. The Court reaffirmed the Allen framework and said “the continuing validity of this Court’s observations in Allen are beyond dispute.” It also observed that a supplemental charge is less troubling when it does not single out minority jurors the way the original Allen instruction had.3Legal Information Institute. Lowenfield v. Phelps, 484 U.S. 231
The Court held that the combination of jury polling and a supplemental instruction in Lowenfield was not coercive enough to violate the defendant’s constitutional rights. But it cautioned that “other combinations of supplemental charges and polling might . . . require a different conclusion,” leaving room for future challenges on different facts.3Legal Information Institute. Lowenfield v. Phelps, 484 U.S. 231
When the Charge Becomes Coercive
Appellate courts do not apply a single bright-line test to Allen charge challenges. They look at the totality of the circumstances. The Ninth Circuit weighs three factors: the form and language of the instruction, how long the jury deliberated after receiving it compared to its total deliberation time, and any other indicators of coercive pressure.4United States Courts for the Ninth Circuit. 7.7 Deadlocked Jury – Model Jury Instructions
One circumstance nearly guarantees reversal: the judge learning the jury’s numerical split before giving the charge. The Ninth Circuit treats this as coercive on its face. If holdout jurors know that the judge knows they are the holdouts, the instruction inevitably feels aimed at them. Even when the judge learns the split accidentally, reversal is required if holdout jurors could reasonably read the charge as directed at them personally.4United States Courts for the Ninth Circuit. 7.7 Deadlocked Jury – Model Jury Instructions
Other red flags include giving the charge late at night when jurors are exhausted, issuing it repeatedly without meaningful breaks for further deliberation, and using language that emphasizes the cost and burden of a retrial. Any of these can tip an otherwise acceptable instruction into reversible error.
State Bans and Modified Versions
Roughly half the states have either banned the traditional Allen charge outright or replaced it with modified instructions designed to reduce pressure on minority jurors. Some states use what are sometimes called “balanced” charges that do not specifically address jurors in the minority. Others follow the American Bar Association’s approach, which favors neutral language applying equally to every juror regardless of which way they lean.
At the federal level, most circuits use modified versions that build in explicit safeguards against coercion, though the original Allen framework remains constitutionally permissible. The upshot for anyone facing a deadlock instruction: the exact wording, and whether a modified charge applies, depends on the jurisdiction.
If the Jury Still Cannot Agree
Most deadlocked juries that receive an Allen charge do eventually return a verdict. Whether that reflects genuine persuasion or quiet capitulation is the heart of the debate around the instruction.
If deliberations stall after one or more supplemental instructions, the judge declares a mistrial. A mistrial for jury deadlock does not bar the prosecution from trying the defendant again. Double jeopardy does not attach to a hung jury, so the case can be retried with a new panel. The Allen charge is, in that sense, a fork in the road: either the current jury reaches a verdict, or the whole process begins again.
Defense attorneys who believe an Allen charge was improperly coercive should object on the record immediately. Failing to preserve the objection at trial makes it much harder to raise the issue on appeal. Reviewing courts look at whether the defense objected, the specific language the judge used, and whether the totality of the circumstances suggests the verdict reflected real agreement or manufactured consensus.