Boom Goes the Dynamite: How Dynamite Charges Blow Up Jury Deliberations and Inappropriately Pressure Jurors

by Madisen Zent, Associate Member, University of Cincinnati Law Review Vol. 93.

I. Introduction

Every criminal defendant, not charged with a petty offense, has the right to an impartial jury of their peers.[1] The right to a jury trial is required because it is “a basic and fundamental feature of our system.”[2] In a jury trial, members of the jury serve as fact finders, while the judge oversees questions of law. This means that the jury analyzes the evidence and comes to one of two decisions: guilty or not guilty.[3] Sometimes, if a jury cannot agree on a decision, they are deemed a hung jury.[4]

With such an important role in the system of justice, juries should not be unduly pressured or influenced by outside forces. Yet, sometimes, when the jury is struggling to decide, the judge will give further instructions called dynamite charges, which are intended to speed up the jury process. However, instead of assisting jurors in making decisions, dynamite charges further pressure jurors, oftentimes leading to improper jury verdicts.

This article argues that dynamite charges are coercive and have no role in a fair criminal system. Part II explains the use of dynamite charges and the psychology of jury decision-making. Part III argues there are better ways to promote jury deliberations than the current dynamite charge. Part IV concludes by reiterating the importance of proper jury decisions.

II. Background

This section will first provide background on how juries come to a verdict. Then it will look at a specific jury instruction called a dynamite charge, also referred to as an Allen charge, which often impacts jury determinations.

A. Jury Decision Making

Being on a jury can be a stressful experience. Jury members feel the weight of their decisions because a decision of guilt or innocence impacts all parties involved. Group dynamics and stress can create situations where jurors rely on poor decision-making tactics to reach important decisions that impact the defendant’s life.

When summoned for jury duty, a person typically experiences stress.[5] Nearly forty percent of all people called for jury duty report experiencing some level of stress, mostly stemming from the burden of having to come to a verdict.[6] Specifically, stress can arise due to having to participate in jury deliberations, possible conflicts among jurors, and fears of making a mistake in the verdict or sentencing process.[7]

Naturally, stress has a negative effect on a person during a decision-making process.[8] Specifically, people are more susceptible to outside influences to make decisions when they are in stressful situations.[9] Therefore, when stressed, jurors might be more prone to make determinations of guilt or innocence based on social pressures and not the facts presented.

Group dynamics can also influence verdicts. When a group, like a jury, must make a unanimous decision, outliers in the groups may succumb to the majority view instead of focusing on making factual determinations.[10] When making decisions, people are susceptible to different social influences, specifically informational and normative social influences.[11] Informational social influences are from factual evidence.[12] Making decisions based on informational influences is preferred because the decision is based on facts, not coercion.[13] Normative social influences are from the pressure of others to change and align their views.[14] Psychological studies show that when making group decisions, people are susceptible to normative influence.[15] Specifically, when a person feels they are in the minority of the group, they are more likely to conform to the views of the majority.[16]

For jurors, normative social influence can cause jurors in the minority to make decisions that are not based on facts. Instead, the pressure of being in a group causes jurors to be more stressed and thus disregard their factual determination of the defendant’s guilt or innocence.

B. Jury Instructions

Jury instructions are given to juries by the judge to explain the rules and guide their discussions.[17] Ideal jury instructions are brief, relevant to the case, understandable to the average juror, and correctly state the law without misleading the jury.[18] Jury instructions are given multiple times throughout the trial. The most common type of jury instruction is given after closing arguments when the judge instructs the jury on how to deliberate and define the relevant law in reaching the verdict.[19] Jury instructions can also be given to the jury when they ask questions or are deadlocked during deliberation.[20]

C. The Dynamite (or Allen) Charge

Juries have the important role of making factual determinations in a case. In most criminal proceedings, the jury is required to unanimously decide guilt or innocence.[21] Sometimes, juries cannot come to a unanimous decision, resulting in a hung jury.[22] When a jury is deadlocked or hung, the judge can give a dynamite charge, also known as an Allen charge, to encourage continued deliberations until a verdict is rendered and reduce the chance of a mistrial.[23]

1. History of Dynamite Charges

Dynamite charges have a long history in United States’ jurisprudence. Even before the namesake case, judges used coercive language to expedite jury decisions.[24] These jury instructions typically included language indicating that the jurors need to come to a verdict and instructing the jurors in the minority to be open to the majority’s points.[25]

The Supreme Court upheld the use of dynamite charges, or similar charges, in the case Allen v. United States.[26] In Allen, the defendant was on trial for murder.[27] After a lengthy deliberation, the jury could not reach a verdict.[28] So, the trial judge gave the jury further instructions suggesting the jurors in the minority reevaluate their position.[29] Specifically, the trial court instructed the jurors to:

listen, with a disposition to be convinced, to each other’s arguments; that if much the large number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself.[30]

Essentially, the trial judge pressured the minority to reconsider their position and conform to the majority’s view, given there was a reasonable basis to do so. The Supreme Court held this charge was permissible because each juror should be made aware that their job is to listen to other people’s views and come to a verdict.[31]

2. Psychological Effects of the Dynamite Charge

Dynamite charges are coercive because they single out jurors in the minority and inherently pressure them to change their views in favor of the majority.[32] The dynamite charge creates stress, coercive group dynamics, and implied pressure from the judge.[33]

First, the dynamite charge creates additional stress on jurors that affects their decision-making.[34] Being a juror is already a stressful endeavor because they are in an unpredictable situation, the process is inefficient, and jurors feel uncomfortable in their surroundings.[35] The initial stress of being a juror is then confounded by the pressure of being forced to come to a unanimous verdict.[36] Once a dynamite charge is given, the stress is multiplied leading to reliance on less than ideal judgment strategies.[37]

Second, a dynamite charge makes jurors more susceptible to normative influences.[38] In group decision making, there is a tendency for people to be susceptible to normative influences.[39] When the minority is singled out by a dynamite charge, the judge overly pressures the minority to follow the group norm.[40] Finally, there is implied pressure from the judge because they are in a position of power.[41] Jurors may feel pressure from the judge to comply with the majority and reach a verdict.[42] When the pressure comes from an authority figure it is more persuasive and can lead to rushed verdicts.[43] The dynamite charge applies pressure to the jury and coerces them to come to a verdict. Stress and group dynamics negatively affect jury verdicts. The dynamite charge pushes jurors to rushed verdicts based on normative influences, harming criminal defendants.

3. The Effects of the Dynamite Charge on Verdict Determinations

 It is difficult, if not impossible, to do research on real juries because of the privacy awarded to people who sit on a jury. Therefore, empirical studies are done with mock juries to study the psychology of jury deliberations.

Vicki Smith and Saul Kassin conducted a study on the effects of dynamite charges on deadlocked juries.[44] Smith and Kassin gave mock jurors trial transcripts and then placed them into a jury where the majority of jurors were in favor of either a guilty or innocent verdict.[45] Then, they gave certain mock juries a dynamite charge to see the effect it would have on group dynamics.[46] After being given the dynamite charge, the jurors in the minority changed their verdict significantly more than when there was no dynamite charge given.[47] Additionally, the jurors in the minority changed their votes at a significantly higher rate compared to the jurors in the majority regardless of which verdict was in the majority.[48]

Furthermore, in the Smith and Kassin study, the minority jurors felt more pressure from the majority after the dynamite charge was given.[49] There was more reliance on normative factors after the dynamite charge was given instead of coming to a decision based on the factual evidence presented.[50] Many of the jurors in the minority commented that after the dynamite charge, they felt their vote was no longer important.[51] For example, one mock juror stated “[b]eing in the minority I guess I’d better reconsider.”[52] In contrast, the jurors in the majority commented about having the right amount of votes and therefore the minority jurors are supposed to change their minds.[53]

Smith and Kassin’s research highlighted the problems with dynamite charges and how they affect jury deliberations. State courts and the federal courts have echoed similar concerns; however, the Supreme Court has yet to reevaluate the constitutionality of dynamite charges. 

4. Changes to the Dynamite Charge

There have long been concerns about the coercive nature of dynamite charges.[54] Due to these concerns, the American Bar Association’s Trial Committee enacted Standard 15-5.4 to help combat the overly coercive dynamite charges given to many juries.[55]

The ABA standard attempts to reduce coercion with different suggestions on how jury instructions and dynamite charges should be given.[56] First, they suggest the judge should give a dynamite charge before deliberations, as opposed to only giving it once the jury is deadlocked.[57] This instruction should outline the jury’s duty to come to a verdict after an impartial consideration of all the evidence and other juror’s views, yet each juror must come to their own determination and not surrender their honest belief simply because they are pressured by other jurors.[58] Then, if a jury still becomes deadlocked, the judge should simply repeat the same instruction.[59] Finally, the ABA standard reiterates that if there appears to be no reasonable probability the jury can reach an agreement, they may be discharged without reaching any verdict.[60] This standard has subsequently been adopted or modified by many state and federal courts, however, it is not required, meaning there is a lack of consistency in the application of dynamite charges.[61]

IV. Discussion

Juries must be free to come to a verdict without any restriction or undue influence. Dynamite charges unduly pressure juries by not only adding stress but also taking away one of their options. A jury is allowed to be deadlocked and if there is no reasonable chance they will come to a verdict, they may be discharged.[62] The state or government may then retry the case. This system is essential to ensure that the state meets its burden of beyond a reasonable doubt.[63] If twelve people cannot freely decide beyond a reasonable doubt, they have the option to be hung. Therefore, to ensure that juries can function properly without undue influence, the court must use less coercive language when giving instructions to the jury.   

A. Analysis of the ABA Recommendations

The ABA’s recommendations improve the coercive nature of dynamite charges but are still insufficient to significantly decrease the coercion the dynamite charge imposes. The best improvement from the recommendations regarding dynamite charges is the reminder the jury does not have to come to a determination on guilt or innocence.[64]

However, the recommendations are insufficient because the judge still tells the jurors to listen to each other’s views in making their determination of guilt or innocence.[65] Therefore, the jurors are still being influenced by normative influence as opposed to the facts presented at trial. Even if the judge gives the dynamite charge before jury deliberations, jurors still can feel pressured. The normative influences may be stronger because from the beginning jurors are pressured to conform the entire deliberations in favor of the majority.

Furthermore, the recommendations are insufficient because they are not required to be implemented by courts. Therefore, the judges are not required to adhere to the recommendations, leading to inconsistencies in the justice system. Consistency is important in ensuring everyone has a fair trial, therefore different juries should not be subjected to different levels of coercion without a check.

B. Jury Instructions to Refocus the Jury

Generally, jury charges in the middle of deliberations should not be entirely excluded because of their ability to promote judicial efficiency, but they should not be as coercive as the dynamite charge. [66] To alleviate the coercive nature of these charges, the best solution is to rewrite these jury instructions in a non-coercive way by refocusing the jury on the evidence presented.

The jury instructions should not include the language that pressures the minority to conform to the majority’s view.[67] Instead, the language should instruct the jury to reexamine the evidence presented and reiterate the standard of evidence needed to reach a verdict. This way, the jury is more likely to use informational influences in their decision-making as opposed to leaning into the social pressure from the majority.

For example, in the District of Columbia, Instruction 2.601 should be given instead of the dynamite charge. This instruction first acknowledges the jury has not reached a decision, then gives the following instructions:

I’m thankful that I do not know that, and my instruction not to reveal how you are divided continues unless and until you reach a unanimous verdict.

In addition, the Court is not interested in a decision. What I am interested in is offering help to you if you think the Court can be of help to you.

And when I say if the Court can be of help to you, I may enlist the assistance of the attorneys for each side in trying to be of help to you.

The goal here is not to force you to reach a verdict, or to suggest in any way what your verdict should be.

I am proposing that it may be helpful for you in the privacy of your jury room to identify areas of agreement and areas of disagreement that you are having.

If you care to make such identification, you may then wish to discuss the law and the evidence as they relate to those areas of disagreement.

If you still have disagreement, I invite you, but I do not require you to identify any questions about the evidence or the final instructions of law regarding which you would like assistance from the Court or counsel.

If you choose this option, then please list in writing, in as clear and simple language as you can fashion, where further assistance might help you in bringing about a verdict.

In closing, I want to repeat that I do not wish or intend to force a verdict. I am merely trying to respond to your latest note.

If you think this offer might be of assistance, then I think it would be wise to give it a try.[68]

This instruction from the District of Columbia is clearly less coercive than the dynamite charge. First, the proposed instruction clearly tells the jurors the judge is not interested in a verdict. This permits the jury to not come to a verdict, which decreases coercion. Second, the instruction is offering to answer any of the jury’s evidentiary or legal questions, which allows the jury to not be pressured to listen to the other jury members and become susceptible to normative influences. The District of Columbia’s charge to the jury is more likely to refocus and assist the jury, while a dynamite charge coerces the jury to come to a verdict.

C. The Attorney Should Propose Less Coercive Jury Instructions

Ideally, the judge would not give a dynamite charge, but this change will likely be slow because the dynamite charge has been held as constitutional for over 100 years.[69] Therefore, attorneys should take action by proposing less coercive jury instructions. Before the judge gives any instruction to the jury, most states require the judge to discuss those instructions with the attorneys.[70] The judge considers the lawyer’s requested instructions but still has the final say.[71]

If there is a suggestion to give further instruction in the middle of jury deliberations, the attorneys should request the judge give uncoercive instructions. The proposed instructions should mirror the ones explained above. There must be an emphasis on the informative influences and the evidence presented to the jury instead of trying to force the jury to return a verdict.

IV. Conclusion

Dynamite charges were intended to increase efficiency in the court system, but instead pressure jurors to come to a rushed decision. The system should not be willing to forfeit fairness in jury trials nor overly stress jurors because it is possibly more efficient. The coercive effects of dynamite charges are too high.

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[1] U.S. Const. amend. VI.

[2] Duncan v. Louisiana, 391 U.S. 145, 148. 

[3] Jury Trial, Legal Info. Inst. (Apr. 2023), https://www.law.cornell.edu/wex/jury_trial.

[4] Id.

[5] Brian H. Bornstein et al., Juror Reactions to Jury Duty: Perceptions of the System and Potential Stressors, 23 Behavioral Science and the Law, 321 (2005).

[6] Id. at 335.

[7] Id.

[8] Sarah Thimsen et al., The Dynamite Charge: Too Explosive for its Own Good?, 44 Val. Univ. L. Rev. 93, 105-07 (2009).

[9] Id.

[10] Morton Deutsch & Harold B. Gerard, A Study of Normative and Informational Influences Upon Individual Judgement, 51 The Journal of Abnormal and Social Psychology 629, 635-36 (1955).

[11] Id. at 629.

[12] Id.

[13] Id.

[14] Id.

[15] Id. at 635.

[16] Id.

[17] Jury Instruction, Legal Info. Inst. (Apr. 2023), https://www.law.cornell.edu/wex/jury_instruction.

[18] Id.

[19] Id.

[20] Id.

[21] American Bar Association, ABA Standards for Criminal Justice Discovery and Trial by Jury 125-26, (3d ed., 1996).

[22] Hung Jury, Legal Info. Inst. (Jan. 2023), https://www.law.cornell.edu/wex/hung_jury#:~:text=A%20hung%20jury%20is%20a,is%20not%20a%20common%20practice.

[23] Allen v. United States, 164 U.S. 492, 501 (1896).

[24] Commonwealth v. Tuey, 62 Mass. (8 Cush.) (Mass. Sup. Ct. 1851) & State v. Smith, 49 Conn. 376, 386 (Conn. 1881).

[25] Allen, 164 U.S. at 501.  

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] Thimsen, supra note 8, at 102.

[33] Id. at 104.

[34] Id. at 105-06.

[35] Id.

[36] Id.

[37] Id. at 107.

[38] Id. at 109.

[39] Deutsch, supra note 10, at 635-36.

[40]  Thimsen, supra note 8, at 110.

[41] Id. at 110-11.

[42] Id.

[43] Id.

[44] Vicki L. Smith & Saul M. Kassin, Effects of the Dynamite Charge on the Deliberations of Deadlocked Mock Juries, 17 L. and Hum. Behav. 625, 627-28 (1993).

[45] Id. at 628-30.

[46] Id.

[47] Id. at 634.

[48] Id.

[49] Id. at 639.

[50] Id. at 640-41.

[51] Id.

[52] Id. at 640.

[53] Id.

[54] American Bar Association, ABA Standards for Criminal Justice Discovery and Trial by Jury 258-61, (3d ed., 1996).

[55] ABA Comm. on Crim Just. Standards at 15-5.4, Am. Bar Ass’n (1968), https://www.americanbar.org/groups/criminal_justice/resources/standards/trial-by-jury/

[56] Id.

[57] Id.

[58] Id.

[59] Id.

[60] Id.

[61] United States v. Silvern, 484 F.2d 879, 882 (7th Cir.1973).

[62] American Bar Association, ABA Standards for Criminal Justice Discovery and Trial by Jury, 125-26, (3d ed., 1996).

[63] Id.

[64] ABA Comm. on Crim Just. Standards at 15-5.4, Am. Bar Ass’n (1968), https://www.americanbar.org/groups/criminal_justice/resources/standards/trial-by-jury/.

[65] Id.

[66] United States v. Chigbo, 38 F.3d 543, 545 (1994); Allen v. United States, 164 U.S. 492, 501 (1896).

[67] Allen, 164 U.S. at 501.

[68] 1 Criminal Jury Instructions for DC Instruction 2.601 (2024).

[69] Id.

[70] How Courts Work: Steps in a Trial, Am. Bar Ass’n (Sept. 9, 2019), https://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/juryinstruct/.

[71] Id.

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Cover Photo by Catherine MacBride on Flickr.