Friday, February 14, 2014
People have been asking questions regarding what happens if the jury cannot unanimously agree on guilt or innocence (i.e, hung jury)? The analysis goes count by count.
(1) A verdict requires unanimous agreement. A verdict on a count is a final determination of guilt or innocence as to that count, regardless of what happens on the other counts. For example, the jury could reach a verdict on some counts, but not others.
(2) The jury cannot consider lesser-included instructions regarding a particular count or charge, unless it has failed to reach a verdict on that count or charge.
(3) If the jury cannot reach a verdict on a count, even after serially considering each of the lesser-included instructions, the foreperson will so advise the court.
(4) The court may order the jury to continue deliberating or send them the following question:
Do each of you unanimously agree that further deliberations as to count (fill in the blank) would not produce a verdict?
If the answer is “No,” he will order them to continue deliberating on that count.
If the answer is “Yes,” he will declare the jury hung on that count.
(5) At no time may the court ask or the foreperson reveal the status of the vote or describe the disagreement.
(6) Federal courts and some state courts have what is called an “Allen charge” in which the court tells the jury that a lot of time, effort and expense went into trying this case and it should accordingly make every reasonable effort to reach a verdict. Don’t know if Florida follows this practice.
(7) The prosecution can, but is not required, to retry a count where the jury could not reach a verdict.