Justice Story Cuts the Gordian Knot of Hung Jury Instructions

31 Pages Posted: 15 Feb 2006 Last revised: 15 Sep 2008

See all articles by George C. Thomas

George C. Thomas

Rutgers, The State University of New Jersey - Rutgers Law School

Mark Greenbaum

Rutgers, The State University of New Jersey - Rutgers Law School

Date Written: January 23, 2006

Abstract

Abstract: Constitutional law grows more complex over time. The complexity is due, in large part, to the rule of stare decisis. When faced with precedents that it does not wish to follow, the Court usually distinguishes the case before it. Thus, the constitutional landscape is littered with cases that do not fit well together. Navigating past these shoals is often difficult for courts following the Supreme Court's lead. One example is the law governing instructions that a trial judge can give a deadlocked jury in a criminal case. The right to a jury trial entails the right to have the jury reach a verdict without pressure from the judge, but giving voice to that principle has resulted in a bewildering array of approved instructions. This article argues that the law of 1824, manifested in Justice Story's opinion in United States v. Perez, was superior to today's morass. In 1824, judges had virtually uncontrolled discretion to decide when to declare a hung jury. We argue for a return to 1824 with one twist: that judges give deadlocked juries the instruction: "Please continue to deliberate." This simple change will result in fewer hung juries and far fewer appeals about whether the instructions were too coercive.

Keywords: Courts, Criminal Law and Procedure, Legal History

Suggested Citation

Thomas, George C. and Greenbaum, Mark, Justice Story Cuts the Gordian Knot of Hung Jury Instructions (January 23, 2006). Rutgers School of Law-Newark Research Papers No. 017, Available at SSRN: https://ssrn.com/abstract=884227 or http://dx.doi.org/10.2139/ssrn.884227

George C. Thomas (Contact Author)

Rutgers, The State University of New Jersey - Rutgers Law School ( email )

Newark, NJ
United States

Mark Greenbaum

Rutgers, The State University of New Jersey - Rutgers Law School

Newark, NJ
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
75
Abstract Views
1,323
rank
380,054
PlumX Metrics