The following excerpt is from State v. O’Neil, 801 A.2d 730 (Conn. 2002), where the Connecticut Supreme Court reviewed the validity of Connecticut version of the Allen charge (the “Chip Smith instruction”) and in so doing canvassed the law of many other federal and state jurisdictions.  During its discussion the court quotes the language of the Allen charge, as well as the language of its primary alternative, Standard 15-4.4 of the American Bar Association Standards for Criminal Justice.  (Note that while jury deadlock instructions in civil cases have not given rise to nearly as much litigation as in criminal cases, neither the Allen charge nor the ABA Standard are specific to any particular type of case, and they constitute the two predominant models in civil as well as criminal cases):

We initially note that the language of the Chip Smith instruction, as presently given by the trial courts of this state, is substantially similar to the language of the antideadlock charge approved by the United States Supreme Court for use in the federal courts. In Allen v. United States, 164 U.S. 492, 501-502, 17 S.Ct. 154, 41 L.Ed. 528 (1896), the United States Supreme Court approved the use of an antideadlock instruction [FN17] substantially similar to the instruction at issue in the present case. The court reasoned that "[w]hile, undoubtedly, the verdict of the jury should represent the opinion of each individual juror, it by no means follows that opinions may not be changed by conference in the jury-room. The very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves. It certainly cannot be the law that each juror should not listen with deference to the arguments and with a distrust of his own judgment, if he finds a large majority of the jury taking a different *65 view of the case from what he does himself. It cannot be that each juror should go to the jury-room with a blind determination that the verdict shall represent his opinion of the case at that moment; or, that he should close his ears to the arguments of men who are equally honest and intelligent as himself." Id. In Lowenfield v. Phelps, supra, 484 U.S. at 231, 108 S.Ct. 546 the court confirmed that "[t]he continuing validity of [its] observations in Allen [were] beyond dispute...." [FN18] Id., at 237, 108 S.Ct. 546. Moreover, "[d]espite a century of scrutiny and almost constant criticism of the [Allen charge], the [United States Supreme] Court has never withdrawn its approval of the ... charge, although it has permitted each court of appeals to exercise its supervisory powers in fashioning its own version of the [charge]." 1 L. Sand et al., Modern Federal Jury Instructions (2001) p. 9- 37. See generally United States v. McElhiney, 275 F.3d 928, 935-39 (10th Cir.2001) (discussing history of Allen charge and relevant decisional law); 2A Charles Alan Wright, Federal Practice and Procedure (3d Ed.2000) § 502, pp. 532-44 (discussing criticism of Allen charge and treatment of charge by federal courts of appeals). "[F]ederal courts have been reluctant to hold that the Allen charge--at least in its pure form--is impermissibly coercive and therefore a violation of due process." United States v. McElhiney, supra, at 938; see also 2A Charles Alan Wright, supra, at § 502, p. 540 ("[n]o [federal] court has held it unconstitutional to give [an Allen ] charge, and many [federal] courts, even while voicing doubts about the Allen charge, hold that it is not error to give it"). Thus, since the United States Supreme Court's release of its decision in Allen, "[a]ll of the [f]ederal Courts of *66 Appeals have upheld some form of a[n] [Allen ] jury charge." Lowenfield v. Phelps, supra, at 238 n. 1.

FN17. The federal equivalent of this state's Chip Smith instruction is the Allen charge, "[t]he purpose of [which] is to encourage unanimity (without infringement upon the conscientious views of each individual juror) by urging each juror to review and reconsider the evidence in the light of the views expressed by other jurors, in a manner evincing a conscientious search for truth rather than a dogged determination to have one's own way in the outcome of the deliberative process. In short, the substance of the Allen charge is the salutary admonition of Oliver Cromwell: 'I beseech you in the bowles [bowels] of Christ, think it possible you may be mistaken.' " United States v. Smith, 857 F.2d 682, 683-84 (10th Cir.1988).

FN18. In Lowenfield, the petitioner sought a writ of habeas corpus in federal court challenging the propriety of an antideadlock instruction administered in a Louisiana trial court. See Lowenfield v. Phelps, supra, 484 U.S. at 237, 108 S.Ct. 546. We note that the antideadlock instruction at issue in Lowenfield did not "speak specifically to the minority jurors"; id., at 238, 108 S.Ct. 546; unlike the Chip Smith charge given by the trial court in the present case.

A close analysis of federal case law reveals a diversity of permissible antideadlock instructions. [FN19] Federal case law may be categorized into three groups: "(1) those [cases] that still permit a charge which directs the minority alone to reconsider their position; (2) those that require that a charge which directs the minority to reconsider their position also contain balancing language directing the majority to reconsider their position as well; and (3) those that have banned any reference to the majority or minority." 1 L. Sand et al., supra, at p. 9-43. Furthermore, those federal cases that sanction the use of an antideadlock charge urging minority view jurors to reconsider their position often permit district court judges to deliver other instructions that include language directing both majority and minority view jurors to reconsider their respective positions or that exclude any reference to majority and minority view jurors. Id.

FN19. A review of decisions from our sister states reveals a similar pattern. See generally annot., 97 A.L.R.3d 96 (1980 & Sup.2001) (surveying cases addressing use of antideadlock instructions in state courts). While at least one state court prohibits the use of antideadlock instructions; see Foster v. State, 698 N.E.2d 1166, 1170 n. 10 (Ind.1998) (when jury is deadlocked, proper procedure for trial court to follow is to reread instructions given to jury prior to deliberations without any further comment), citing Lewis v. State, 424 N.E.2d 107, 111 (Ind.1981); other state courts continue to approve the use of either the original Allen charge or a modified version thereof. See, e.g., Miller v. State, 645 So.2d 363, 365-66 (Ala.Crim.App.1994); Desmond v. State, 654 A.2d 821, 827 (Del.1994); McMillan v. State, 253 Ga. 520, 523, 322 S.E.2d 278 (1984). The Supreme Judicial Court of Massachusetts recommends that the trial courts of Massachusetts follow either a modified version of the Allen charge, known as a Tuey charge, or an antideadlock instruction based on what is now standard 15-4.4 of the American Bar Association's Standards for Criminal Justice (ABA standard). Commonwealth v. Rodriquez, 364 Mass. 87, 98-101, 300 N.E.2d 192 (1973); see 3 A.B.A., Standards for Criminal Justice (2d Ed.1980) c. 15, standard 15-4.4, p. 15-133; A.B.A., Standards Relating to Trial by Jury (1968) § 5.4, pp. 145-46 (approved draft) (predecessor to standard 15-4.4 of Standards for Criminal Justice that court in Rodriquez cited with approval); cf. Commonwealth v. Mitchell, 943 S.W.2d 625, 626-28 (Ky.1997) (recommending use of instruction based on ABA standard, but upholding instruction directing jury to return verdict); State v. Nicholson, 315 So.2d 639, 641 (La.1975) (prohibiting use of Allen charge or "any coercive modification thereof"). But cf. State v. Wilson, 806 So.2d 854, 859-61 (La.App.2001) (instruction encouraging jurors to reach verdict in light of expenses being incurred upheld as noncoercive). Many other state appellate courts, however, either recommend or require that the trial courts of their respective states use instructions patterned after the ABA standard. See, e.g., Fields v. State, 487 P.2d 831, 842 (Alaska 1971) (citing § 5.4 of the Standards Relating to Trial by Jury [hereinafter predecessor to ABA standard] ); People v. Gainer, 19 Cal.3d 835, 856 & n. 21, 566 P.2d 997, 139 Cal.Rptr. 861 (1977) (citing predecessor to ABA standard); Allen v. People, 660 P.2d 896, 898 (Colo.1983); State v. Clay, 112 Idaho 261, 264-65 & n. 1, 731 P.2d 804 (1987) (citing predecessor to ABA standard); People v. Prim, 53 Ill.2d 62, 74-76, 289 N.E.2d 601 (1972), cert. denied, 412 U.S. 918, 93 S.Ct. 2731, 37 L.Ed.2d 144 (1973) (citing predecessor to ABA standard); State v. Campbell, 294 N.W.2d 803, 812 (Iowa 1980) (citing predecessor to ABA standard); State v. Weidul, 628 A.2d 135, 136 (Me.1993); Goodmuth v. State, 302 Md. 613, 621-22, 490 A.2d 682 (1985); State v. Jordan, 130 N.H. 48, 49-50, 534 A.2d 378 (1987); State v. Czachor, 82 N.J. 392, 405, 407, 413 A.2d 593 (1980) (citing predecessor to ABA standard). Florida courts stand alone in recommending an antideadlock charge that resembles neither an instruction based on the ABA standard nor a modified version of the original Allen charge. See, e.g., Roma v. State, 785 So.2d 1269, 1271 (Fla.App.2001); cf. id., at 1272-73 (upholding use of modified Allen charge).

The Courts of Appeals for the Second, Fifth, Ninth, Tenth and Eleventh Circuits permit the district courts within their respective jurisdictions to deliver an antideadlock charge urging minority view jurors to reconsider their conclusions. [FN20] See, e.g., Vichare v. AMBAC, Inc., 106 F.3d 457, 462 (2d Cir.1996); United States v. Melendez, 60 F.3d 41, 51- 52 (2d Cir.), cert. denied sub nom. Rosario v. United States, 516 U.S. 900, 116 S.Ct. 258, 133 L.Ed.2d 182 (1995), cert. denied sub nom. Rodriguez v. United States, 516 U.S. 969, 116 S.Ct. 429, 133 L.Ed.2d 345 (1995), vacated on other grounds sub nom. Colon v. United States, 516 U.S. 1105, 116 S.Ct. 900, 133 L.Ed.2d 834 (1996), and cert. denied sub nom. Sanchez v. United States, 516 U.S. 1148, 116 S.Ct. 1020, 134 L.Ed.2d 99 (1996); United States v. Miller, 478 F.2d 1315, 1320 (2d Cir.), cert. denied, 414 U.S. 851, 94 S.Ct. 144, 38 L.Ed.2d 100 (1973); United States v. Winters, 105 F.3d 200, 203-204 (5th Cir.1997); United States v. Nguyen, 28 F.3d 477, 484 & n. 4 (5th Cir.1994); United States v. Kimmel, 777 F.2d 290, 294-95 & n. 4 (5th Cir.1985), cert. denied, 476 U.S. 1104, 106 S.Ct. 1947, 90 L.Ed.2d 357 (1986); United States v. Wills, 88 F.3d 704, 716-18 (9th Cir.), cert. denied, 519 U.S. 1000, 117 S.Ct. 499, 136 L.Ed.2d 390 (1996); United States v. Arney, 248 F.3d 984, 987-90 & n. 3 (10th Cir.2001); United States v. Reed, 61 F.3d 803, 805 & n. 5 (10th Cir.1995); United States v. Butler, 904 F.2d 1482, 1487-88 (10th Cir.1990); United States v. Smith, 857 F.2d 682, 684 (10th Cir.1988); *69 United States v. Dickerson, 248 F.3d 1036, 1050 (11th Cir.2001); United States v. Trujillo, 146 F.3d 838, 846 (11th Cir.1998).

FN20. For example, the Eleventh Circuit pattern antideadlock instruction provides in relevant part: "If a substantial majority of your number are in favor of a conviction, those of you who disagree should reconsider whether your doubt is a reasonable one since it appears to make no effective impression upon the minds of the others. On the other hand, if a majority or even a lesser number of you are in favor of an acquittal, the rest of you should ask yourselves again, and most thoughtfully, whether you should accept the weight and sufficiency of evidence which fails to convince your fellow jurors beyond a reasonable doubt...." Eleventh Circuit Pattern Jury Instructions, Criminal (West 1997) p. 434.

Although the Fifth and Ninth Circuit Courts of Appeals permit district courts within their respective jurisdictions to give an Allen instruction in its original form; see Allen v. United States, supra, 164 U.S. at 501-502, 17 S.Ct. 154; certain committees associated with the Fifth and Ninth Circuit Courts of Appeals recommend alternative language that urges minority and majority view jurors to reflect upon their respective conclusions in the event of a deadlock. The Committee on Pattern Jury Instructions of the Fifth Circuit District Judges Association has proposed the following language for district courts in the Fifth Circuit: "Those of you who believe that the government has proved the defendant guilty beyond a reasonable doubt should stop and ask yourselves if the evidence is really convincing enough, given that other members of the jury are not convinced. And those of you who believe that the government has not proved the defendant guilty beyond a reasonable doubt should stop and ask yourselves if the doubt you have is a reasonable one, given that other members of the jury do not share your doubt." Fifth Circuit Pattern Jury Instructions, Criminal (West 2001) instruction 1.45, p. 70; see also Ninth Circuit Manual of Model Jury Instructions, Criminal (West 2000) instruction 7.7, p. 116 ("[e]ach of you should ask yourself whether you should question the correctness of your present position") (language recommended by Ninth Circuit Jury Committee).

The Courts of Appeals for the First, Fourth, Sixth and Eighth Circuits sanction the use of a modified Allen charge that directs majority as well as minority view jurors to reconsider their respective positions. [FN21] See, e.g., United States v. Hernandez-Albino, 177 F.3d 33, 38 (1st Cir.1999); United States v. Paniagua-Ramos, 135 F.3d 193, 197 (1st Cir.1998); Tucker v. Catoe, 221 F.3d 600, 610 (4th Cir.), cert. denied, 531 U.S. 1054, 121 S.Ct. 661, 148 L.Ed.2d 563 (2000); United States v. Cropp, 127 F.3d 354, 360 (4th Cir.1997), cert. denied, 522 U.S. 1098, 118 S.Ct. 898, 139 L.Ed.2d 883 (1998); **743 United States v. Burgos, 55 F.3d 933, 936- 38 (4th Cir.1995); United States v. Frost, 125 F.3d 346, 374-75 & n. 11 (6th Cir.1997), cert. denied, 525 U.S. 810, 119 S.Ct. 40, 142 L.Ed.2d 32 (1998); United States v. Tines, 70 F.3d 891, 896 (6th Cir.1995), cert. denied, 516 U.S. 1180, 116 S.Ct. 1280, 134 L.Ed.2d 225 (1996); United States v. Robinson, 953 F.2d 433, 436 (8th Cir.1992); Potter v. United States, 691 F.2d 1275, 1279-80 (8th Cir.1982); United States v. Smith, 635 F.2d 716, 720-21 & n. 7 (8th Cir.1980).

FN21. For example, the First Circuit pattern antideadlock instruction provides in relevant part: "Not only should jurors in the minority re-examine their positions, but jurors in the majority should do so also, to see whether they have given careful consideration and sufficient weight to the evidence that has favorably impressed the persons in disagreement with them...." First Circuit Pattern Jury Instructions, Criminal (West 1998) instruction 6.06, p. 136.

The Courts of Appeals for the Third, Seventh and the District of Columbia Circuits are the only federal appellate courts that prohibit instructions directing minority view jurors to reconsider their position in light of the position of the majority view jurors. See, e.g., United States v. Eastern Medical Billing, Inc., 230 F.3d 600, 607-10 (3d Cir.2000); *70 United States v. Graham, 758 F.2d 879, 883 (3d Cir.), cert. denied, 474 U.S. 901, 106 S.Ct. 227, 88 L.Ed.2d 227 (1985); United States v. Fioravanti, 412 F.2d 407, 420 (3d Cir.), cert. denied sub nom. Panaccione v. United States, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969); United States v. Sblendorio, 830 F.2d 1382, 1386-87 (7th Cir.1987), cert. denied, 484 U.S. 1068, 108 S.Ct. 1034, 98 L.Ed.2d 998 (1988); United States v. Silvern, 484 F.2d 879, 883 (7th Cir.1973); United States v. Strothers, 77 F.3d 1389, 1391 (D.C.Cir.), cert. denied, 519 U.S. 956, 117 S.Ct. 374, 136 L.Ed.2d 263 (1996); United States v. Dorsey, 865 F.2d 1275, 1277-78 (D.C.Cir.), cert. denied, 492 U.S. 924, 109 S.Ct. 3257, 106 L.Ed.2d 603 (1989); United States v. Thomas, 449 F.2d 1177, 1187 & n. 71 (D.C.Cir.1971). Indeed, these three circuits prohibit any and all references to minority or majority view jurors. In modifying the original Allen charge, each of these three circuits, like other circuits, have acted pursuant to their respective supervisory authority over the district courts; e.g., United States v. Silvern, supra, at 882 ("in the interest of judicial economy and uniformity, and under our supervisory power, district courts in this circuit are henceforth required to [comply with the American Bar Association standards [FN22] in giving an antideadlock instruction]"); ** Government of the Virgin Islands v. Hernandez, 476 F.2d 791, 792 (3d Cir.1973) ("[r]ecognizing the inherent potential of the charge to coerce and the inscrutable problem of determining in each case whether such coercion actually existed, we prospectively banned the use of the Allen [c]harge in this circuit ... as part of our supervisory authority over the district courts" [citation omitted] ); United States v. Thomas, supra, at 1187 ("in the exercise of our supervisory power over the administration of the law in this circuit, we adopt the [American Bar Association] standard [FN23] for the guidelines [by] which future renditions of Allen-type charges must abide, and the [American Bar Association] approved instruction [FN24] as the vehicle for informing jurors of their responsibilities in situations wherein judges decide to do so"); and not because they have held that an antideadlock charge containing references to minority or majority view jurors is per se unconstitutional. See, e.g., United States v. Silvern, supra, at 880 ("no court has held that the [Allen ] instruction itself is unconstitutional"). As the District of Columbia Circuit Court of Appeals has explained, the decisions of the Third, Seventh and District of Columbia Circuit Courts of Appeals were motivated in large part by the view that continued reference to majority and minority view jurors in antideadlock instructions was "an invitation for perennial appellate review"; (internal quotation marks omitted) United States v. Thomas, supra, at 1185, quoting United States v. Fioravanti, supra, at 420; and by the administrative burdens that the original Allen charge and its variations engendered. United States v. Thomas, supra, at 1185.
 

FN22. The Seventh Circuit Court of Appeals refers to § 5.4 of the American Bar Association's Standards Relating to Trial by Jury; see footnote 19 of this opinion; which provides in relevant part: "(a) Before the jury retires for deliberation, the court may give an instruction which informs the jury:

"(i) that in order to return a verdict, each juror must agree thereto;

"(ii) that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;

"(iii) that each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors;

"(iv) that in the course of deliberations, a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous; and
"(v) that no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict...." A.B.A., Standards Relating to Trial by Jury (1968) § 5.4, pp. 145-46 (approved draft). In 1980, the American Bar Association incorporated the foregoing standards, save some minor stylistic changes, into standard 15-4.4 of its Standards of Criminal Justice. See 3 A.B.A., Standards for Criminal Justice (2d Ed.1980) c. 15, standard 15-4.4, p. 15-133.

In its commentary to § 5.4 of the Standards Relating to Trial by Jury, the American Bar Association identifies the following illustrative example of an antideadlock instruction that incorporates the foregoing standards: "The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous.

"It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.

"You are not partisans. You are judges--judges of the facts. Your sole interest is to ascertain the truth from the evidence in the case." (Internal quotation marks omitted.) A.B.A., Standards Relating to Trial by Jury, supra, at pp. 146-47 (commentary to § 5.4[a] ); accord 3 A.B.A., Standards for Criminal Justice, supra, at p. 15-134 (commentary to standard 15-4.4[a] ); see also Seventh Circuit Federal Jury Instructions, Criminal (West 1999) instruction 7.06, p. 116 (instruction substantially similar to American Bar Association example).

FN23. See footnote 22 of this opinion.

FN24. See footnote 22 of this opinion.

It also is important to note that shortly following the release of the Third, Seventh and District of Columbia Circuit decisions rejecting the use of the Allen charge, [FN25] "the debate over the [Allen ] charge's validity tapered off dramatically, leaving for the federal courts the framework discussed above: in some courts, the pure charge still persists, though certain modified forms [are] recommended instead because of their inclusion of cautionary language, while, in other courts, the Allen charge has been formally replaced by a substitute charge, also containing cautionary language to ward off the potential for coercion. The [United States] Supreme Court, surveying the [state of the law] in the late 1980s, commented that, in spite of all the past controversy over the Allen instruction, '[a]ll of the [f]ederal [Circuit] Courts of Appeals have upheld some form of [such] a charge.' Lowenfield [v. Phelps, supra, 484 U.S. at 238 n. 1].... Or, as the Fourth Circuit put it, 'not a single one of the [circuit courts of appeals] has outlawed ... instructions to juries for the purpose of inducing further deliberation and agreement upon a verdict.' United States v. Sawyers, 423 F.2d 1335, 1343 (4th Cir.1970). This fact remains true today." (Emphasis in original.) United States v. McElhiney, supra, 275 F.3d at 939; cf. annot., 97 A.L.R.3d 96 (1980 & Sup.2001) (discussing similarly divergent treatment of antideadlock instructions among state courts).

FN25. Decisions of the Third, Seventh and District of Columbia Circuit Courts of Appeals to abandon the Allen charge in favor of an antideadlock instruction that adheres to the standards approved by the American Bar Association; see 3 A.B.A., Standards for Criminal Justice (2d Ed.1980) c. 15, standard 15-4.4, p. 15-133; A.B.A., Standards Relating to Trial by Jury (1968) § 5.4(a), p. 145 (approved draft); all predate Lowenfield v. Phelps, supra, 484 U.S. at 237-38, 108 S.Ct. 546, in which the United States Supreme Court reaffirmed its reasoning in Allen v. United States, supra, 164 U.S. at 501-502, 17 S.Ct. 154. See United States v. Thomas, supra, 449 F.2d at 1187; United States v. Fioravanti, supra, 412 F.2d at 420 n. 32; United States v. Brown, 411 F.2d 930, 933-34 (7th Cir.1969), cert. denied, 396 U.S. 1017, 90 S.Ct. 578, 24 L.Ed.2d 508 (1970).


[9] As the foregoing summary indicates, the delivery of an antideadlock instruction that urges minority view jurors to think again about the views of majority view jurors generally constitutes an acceptable method of encouraging a deadlocked jury to reach unanimity, especially when the instruction is balanced with cautionary language directing jurors not to abandon their conscientiously held views. See Smalls v. Batista, 191 F.3d 272, 283 (2d Cir.1999) ("[w]hile a proper charge can encourage dialogue and debate and inform jurors that they may attempt to convince others that a particular view is correct, such a charge must caution the jurors never to abandon their conscientiously held beliefs, even if holding firm will result in a deadlock"). After carefully considering the widely divergent treatment of antideadlock instructions by the federal courts and the courts of other states, [FN26] we reaffirm the use of the Chip Smith charge as an acceptable method of *74 encouraging jury unanimity. We do so because, in our view, the charge strikes a fair balance between encouraging a jury to reach a unanimous verdict, an important public policy goal itself; see State v. Feliciano, supra, 256 Conn. at 441-42, 778 A.2d 812 (Chip Smith instruction "embodie[s] the very essence of the jury system, which is to secure unanimity by a comparison of views, and by arguments among the jurors themselves" [internal quotation marks omitted] ); and protecting the criminal defendant's due process rights. See Smalls v. Batista, supra, at 279 (cautionary language directing jurors not to surrender conscientiously held beliefs is "necessary component" of any antideadlock instruction). We, therefore, conclude that the defendant has failed to present "the most cogent reasons and inescapable logic"; (internal quotation marks omitted) State v. Alvarez, 257 Conn. 782, 794, 778 A.2d 938 (2001); for overruling our prior case law dealing with the Chip Smith charge.

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