Key Takeaways

  • An Allen charge (aka “dynamite charge”) is a supplemental jury instruction courts may give when the jury reports it is deadlocked, urging further deliberations without requiring anyone to change a conscientiously held view.
  • The charge traces to Allen v. United States (1896), where the Supreme Court approved such instructions in federal cases.
  • Typical elements include: (1) consider one another’s views, (2) minority jurors reflect on reasonableness of their positions, and (3) no juror should surrender an honestly held conviction.
  • Use is controversial; some states limit or ban Allen-style charges (e.g., California after People v. Gainer), and judges should avoid coercive language about cost, time, or the need to reach a verdict.
  • Federal circuits and many states use “model” or modified instructions that stress open-minded deliberation and neutrality; the Fifth Circuit’s model is a common reference.
  • If repeated Allen charges fail, courts typically declare a mistrial; the case may be retried. 

Need tailored guidance on Allen charges or trial strategy? You can find a qualified criminal defense attorney through UpCounsel.

What Is an Allen Charge?

A term used, usually in the federal court context, to describe the instructions given to a jury when, after deliberation, it is unable to decide on a verdict.

When Courts Give an Allen Charge

Courts consider an Allen charge after the jury sends word that it cannot reach a unanimous verdict. In most jurisdictions, criminal verdicts must be unanimous, so judges sometimes deliver this supplemental instruction to encourage renewed, good-faith deliberation before declaring a mistrial. The instruction should emphasize that no juror must abandon an honestly held belief merely to reach a verdict.

Core Elements (and What to Avoid)

  • Common elements courts include:
    • Jurors should consider each other’s viewpoints with an open mind.
    • Jurors in the minority should reassess whether their doubt (or belief) is reasonable.
    • No one should surrender a conscientiously held conviction.
  • Language to avoid as coercive:
    • Statements implying jurors must reach a verdict or should defer to the majority.
    • References to the expense, time, or burden of retrial that could pressure jurors to change votes.
    • Repeated charges in close succession without assessing potential coercive effect.

History and Legal Status

The U.S. Supreme Court approved Allen-style instructions in Allen v. United States (1896) for federal courts, and many jurisdictions have adopted modified, more “neutral” versions. Still, use of the charge remains contested; several states restrict or forbid it, preferring balanced, non-coercive reminders about deliberation.

State Variations and Model Instructions

  • Bans/limits: Some states have barred Allen-style charges or specific formulations (e.g., California’s People v. Gainer), largely due to concerns about coercion and references to extraneous factors.
  • Models: Many jurisdictions rely on pattern instructions that stress open-minded discussion and respect for individual judgment; for example, the Fifth Circuit’s model Allen charge is a frequently cited template.

Defense Concerns and Objections

Defense counsel often scrutinize Allen charges for coercion. Red flags include: urging jurors to consider cost/time of retrial, implying the minority should yield, or giving multiple charges in a way that pressures holdout jurors. Where state law limits the practice, courts look to standards (including ABA guidance) to police coercive effects.

Example of an Allen Charge

An example of a modified Allen Charge follows:

Members of the Jury:

I'm going to ask that you continue your deliberations in an effort to reach agreement upon a verdict and dispose of this case; and I have a few additional comments I would like for you to consider as you do so.

This is an important case. The trial has been expensive in time, effort, money and emotional strain to both the defense and the prosecution. If you should fail to agree upon a verdict, the case will be left open and may have to be tried again. Obviously, another trial would only serve to increase the cost to both sides, and there is no reason to believe that the case can be tried again by either side any better or more exhaustively than it has been tried before you.

Any future jury must be selected in the same manner and from the same source as you were chosen, and there is no reason to believe that the case could ever be submitted to twelve men and women more conscientious, more impartial, or more competent to decide it, or that more or clearer evidence could be produced.

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.

Remember at all times that no juror is expected to give up an honest belief he or she may have as to the weight or effect of the evidence; but, after full deliberation and consideration of the evidence in the case, it is your duty to agree upon a verdict if you can do so.

You must also remember that if the evidence in the case fails to establish guilt beyond a reasonable doubt the Defendant should have your unanimous verdict of Not Guilty.

You may be as leisurely in your deliberations as the occasion may require and should take all the time which you may feel is necessary.

I will ask now that you retire once again and continue your deliberations with these additional comments in mind to be applied, of course, in conjunction with all of the other instructions I have previously given to you.

Applying Safeguards to Sample Language

If you use a sample Allen charge, align it with best practices: explicitly tell jurors they should not give up sincerely held views; avoid suggesting that the majority view is inherently more reasonable; and omit any mention of expense, time, or the need to reach a verdict. If deadlock persists, the appropriate remedy is typically a mistrial rather than escalating pressure.

What Happens If the Jury Still Can’t Agree?

Courts may try a single, carefully worded Allen charge; if the jury remains deadlocked, a mistrial is usually declared and the case may be retried. Judges should avoid repeated supplemental charges that could be viewed as coercive.

Frequently Asked Questions

1) What is an Allen charge in simple terms?

It’s a supplemental instruction a judge may give a deadlocked jury, encouraging continued deliberations while reminding jurors not to surrender sincere beliefs. 

2) Is an Allen charge mandatory if the jury is hung?

No. Judges have discretion. Some jurisdictions limit or prohibit Allen-style instructions, and a mistrial may be declared instead. 

3) Why do some courts disapprove of Allen charges?

Critics say they risk coercion—especially where language pressures minority jurors or references the cost/time of retrial. 

4) What safeguards make an Allen charge less coercive?

Balanced language: consider others’ views, but do not give up an honestly held conviction; avoid cost/time references; and use the instruction sparingly. 

5) Where can I see a model Allen instruction?

Many courts publish pattern instructions; the Fifth Circuit’s criminal model is a common reference point. 

If you need help with any legal matters, you can post your legal needs on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.