Dynamite Charge

In a majority of U.S. courts, particularly criminal courts, jury verdicts are required to be unanimous. Occasionally, however, juries are unable to reach a consensus. In such instances, judges will sometimes prompt juries to reach a decision by issuing an instruction that is often referred to as the “dynamite charge.” The dynamite charge stresses the importance of reaching a unanimous verdict and puts particular pressure on jurors who hold the minority opinion to reconsider their position. Researchers have begun to explore the effects of this controversial instruction.

During jury deliberations, jurors are expected to engage in a process of social influence. Ideally, juries are supposed to come to a unanimous decision by engaging in reasoned discussion designed to convince one another that a particular decision is the correct one. By the end of the deliberations, if a unanimous verdict is reached, each juror should privately believe that the jury verdict is in fact the correct verdict. This type of influence, in which a person adopts a position because he or she has been convinced that it is truly the correct position, has been termed informational social influence. Another type of influence, normative social influence, may also play a role in jury decision making. Normative social influence occurs when a juror outwardly agrees with the jury verdict (i.e., he or she goes along with the majority’s position) but privately disagrees with the decision. The juror only acquiesces due to perceived or real pressure to go along with the group decision. This, ideally, should not occur during jury deliberation.

If a jury deadlocks (i.e., members are unable to reach a consensus), the jury is considered to be “hung.” A hung jury results in a mistrial, and a retrial may be held. Most courts view a hung jury as an outcome to be avoided because the time and resources devoted to the case do not lead to a verdict. If a jury indicates to the judge that it is unable to reach a unanimous verdict, in an effort to avoid a mistrial, the judge may order continued deliberation after issuing a supplemental instruction known as the dynamite charge. The U.S. Supreme Court first sanctioned the use of the dynamite charge (also known as the Allen charge) in 1896 in Allen v. United States. The exact wording of the dynamite charge can vary, but in its typical form, it reminds the jurors of their duty to reach a unanimous decision, and it suggests to jurors holding the minority position that they reconsider their position in light of the majority’s opinion.

Proponents of the dynamite charge point out that it appears to be an effective means of encouraging verdicts. There are numerous case examples in which the dynamite charge seemed to “blast” deadlocked juries into returning unanimous verdicts soon after the charge was delivered (earning it its nickname). On the other hand, critics of the dynamite charge argue that it unfairly pressures minority jurors into changing their votes by suggesting that it is primarily their responsibility, and not the duty of majority jurors, to reconsider their position. Critics worry that the charge encourages minority jurors to acquiesce to the majority because of normative social influence (i.e., conforming due to social pressure) rather than informational social influence (i.e., a true change in opinion). In addition, there is concern that the charge incorrectly suggests to jurors that they must reach a verdict and that the jury is not permitted to hang. As a result of these concerns, some courts have ruled against the use of the dynamite charge, while others have attempted to create modified versions of it. Notably, the American Bar Association (ABA) developed guidelines for an alternate version of the dynamite charge, which reminds jurors of their duty to deliberate but does not single out minority jurors; in fact, the ABA recommends that the instruction include an admonition that specifically instructs jurors not to simply acquiesce to pressure from other jurors.

The criticisms and proposed reforms of the dynamite charge assume that the charge affects jurors in a particular way; however, only a few studies have attempted to directly assess the effect of the dynamite charge on jury decision making. In the first study on this topic, Saul Kassin and his colleagues recruited undergraduates to participate as mock jurors, and after reading a summary of a trial, the participants engaged in what they thought were deliberations with other jurors via written notes (in reality, there were no other jurors). The researchers manipulated whether the participants were part of the majority or minority group during deliberation and whether they received the dynamite charge or no supplementary charge after deadlocking. Consistent with critics’ fears, the results indicated that minority jurors who received the dynamite charge were more likely to feel pressurized to change their votes and more likely to actually change their votes than majority jurors who received the dynamite charge. Minority jurors were no more likely to change their votes than majority jurors in the no-instruction condition. In addition, majority jurors exerted more normative pressure after receiving the dynamite charge, suggesting perhaps that the dynamite charge encourages the use of normative social pressure.

In another study, Vicki Smith and her colleague continued to explore the effect of the dynamite charge by having participants read a trial transcript and then engage in face-to-face deliberations in groups of six. They manipulated the type of supplemental charge deadlocked juries received, and they varied whether the participants were a part of the majority or minority. Consistent with the results from the first study, minority jurors who received the dynamite charge felt more pressure and were more likely to change their votes than majority jurors who received the dynamite charge. Surprisingly, there was no corresponding increase in the amount of normative pressure exerted by majority jurors who received the dynamite charge, indicating that the increased pressure felt by minority jurors was directly due to the dynamite instruction.

The published research in this area suggests that critics’ concerns that the dynamite charge may selectively coerce minority jurors to capitulate to the majority are warranted. A number of pressing questions remain, including the effects of modified versions of the dynamite charge and variations in how and when the dynamite charge is delivered. In a more recent exploration, Ludmyla Washula compared the traditional dynamite charge with a version consistent with the ABA’s recommendations. The results indicated that the ABA version attenuated the majority’s influence under certain conditions and jurors who received the ABA version were less likely to misunderstand the law regarding hung juries than those who received the traditional dynamite charge. More research is needed to understand the full effects and parameters of the dynamite charge as well as to explore alternatives in the event that the dynamite charge is found to unfairly pressure minority jurors.

References:

1. Allen v. United States, 164 U.S. 492 (1896).
2. Kassin, S. M., Smith, V. L., & Tulloch, W. F. (1990). The dynamite charge: Effects on perceptions and deliberation behavior of mock jurors. Law and Human Behavior, 14, 537-550.
3. Smith, V. L., & Kassin, S. M. (1993). Effects of the dynamite charge on the deliberations of deadlocked mock juries. Law and Human Behavior, 17, 625-643.

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