Number range CHAPTER

**Chapter 9.00**

**SUPPLEMENTAL INSTRUCTIONS**

*Table of Instructions*

**Instruction**

9.01 Supplemental Instructions in Response to Juror Questions

9.02 Rereading of Testimony

9.03 Partial Verdicts

9.04 Deadlocked Jury

9.05 Questionable Unanimity After Polling

**9.01 SUPPLEMENTAL INSTRUCTIONS IN RESPONSE TO JUROR QUESTIONS**

\(1\) Members of the jury, I have received a note from you that says
\_\_\_\_\_\_\_.

\(2\) Let me respond by instructing you as follows: \_\_\_\_\_\_\_.

\(3\) Keep in mind that you should consider what I have just said
together with all the other instructions that I gave you earlier. All
these instructions are important, and you should consider them together
as a whole.

\(4\) I would ask that you now return to the jury room and resume your
deliberations.

**Use Note**

This instruction should be used when the court gives supplemental
instructions in response to juror questions.

**Committee Commentary 9.01**

(current through December 31, 2007)

The Committee made no change in the instruction.

In United States v. Combs, 33 F.3d 667 (6^th^ Cir. 1994), the Sixth
Circuit held that the trial court's supplemental instructions were
inadequate but did not rise to the level of plain error.

The court identified two problems with the content of the supplemental
instructions: they answered jurors' questions with a categorical yes or
no, and they referred jurors to the previous instructions without
elaborating on them. The Sixth Circuit stated that generally, standards
regarding supplemental instructions were "well-settled." The court
explained, "In United States v. Giacalone, we made clear that a
supplemental instruction is one that goes beyond reciting what has
previously been given; it is not merely repetitive. Reiterating the rule
\... that a trial court has a duty 'to clear up uncertainties which the
jury brings to the court's attention,' we stated that the propriety of a
supplemental instruction must be measured 'by whether it fairly responds
to the jury's inquiry without creating \... prejudice.'" *Combs*, 33
F.3d at 669-70 (citations omitted), *quoting* United States v.
Giacalone, 588 F.2d 1158, 1166 (6th Cir. 1978) and United States v.
Nunez, 889 F.2d 1564, 1568 (6^th^ Cir. 1989).

The Sixth Circuit also stated that ordinarily, a categorical yes or no
in response to a jury question does not discharge the court's duty:
"Upon receipt of questions from a deliberating jury, it is incumbent
upon the district court to assume that at least some jurors are
harboring confusion, which the original instructions either created or
failed to clarify. Therefore, the trial judge must be meticulous in
preparing supplemental instructions, taking pains adequately to explain
the point that obviously is troubling the jury. To be sure, the court
must ensure that, in responding, it does not stray beyond the purpose of
jury instructions, but the jury's questions here did not seek collateral
or inappropriate advice." *Combs*, 33 F.3d at 670.

Finally, the *Combs* court also explained the procedures to be used for
supplemental instructions: "The district court is required to follow the
same procedure in giving supplemental instructions as in giving original
instructions. (Citation omitted.) '\[I\]t \[i\]s error for the trial
judge to respond to the jury's question other than in open court and in
the presence of counsel for both sides.' (Citation omitted)." *Id.* *See
also* Fed. R. Crim. P. 43(a), which provides that "The defendant must be
present at \... every stage of the trial including the impaneling of the
jury and the return of the verdict, and at the imposition of sentence,
except as otherwise provided by this rule." The exceptions are listed in
Rule 43(b) and (c).

*1991 Edition*

This instruction is patterned after Devitt and Blackmar Instruction
18.13. It is designed to provide a standardized response to juror
questions which includes a reminder that all the instructions should be
considered together as a whole.

For a summary of when supplemental instructions should be given, see
United States v. Nunez, 889 F.2d 1564, 1568 (6th Cir.1989). See also
United States v. Brown, 915 F.2d 219, 223 (6th Cir.1990).

**9.02 REREADING OF TESTIMONY**

\(1\) Members of the jury, the court reporter will now read
\_\_\_\_\_\_\_\'s testimony.

\(2\) Keep in mind that you should consider this testimony together with
all the other evidence. Do not consider it by itself, out of context.
Consider all the evidence together as a whole.

**Use Note**

This instruction must be used when testimony is reread to the jury.

**Committee Commentary 9.02**

(current through December 31, 2007)

The Committee made no change in the text of the instruction.

The Committee changed the Use Note from providing that this instruction
"should" be used to providing that this instruction "must" be used. The
change responds to United States v. Rodgers, 109 F.3d 1138 (6^th^ Cir.
1997), in which the Sixth Circuit stated, "\[W\]e hold that if a
district court chooses to give a deliberating jury transcribed
testimony, or chooses to reread testimony to a deliberating jury, the
district court must give an instruction cautioning the jury on the
proper use of that testimony." *Id.* at 1145. The court noted that
although it had not explicitly held a cautionary instruction was
required in the past, in numerous cases where the court found no abuse
of discretion, it had relied on the affirmative steps the district
courts took to avoid the dangers of the situation. The Sixth Circuit
explained, "This holding makes explicit a rule we have consistently
applied in the past." *Id.* Thus, if testimony is reread or a transcript
provided to the jury, a cautionary instruction is no longer within the
trial court's discretion but rather is required.

As the Sixth Circuit stated, it had consistently relied on the giving of
a cautionary instruction like Pattern Instruction 9.02 in finding that
rereading testimony was not error. *See, e.g.,* United States v. Epley,
52 F.3d 571, 579 (6^th^ Cir. 1995), where the court held that it was not
error for the trial court to reread one witness's testimony upon request
of jury, in part because the trial court gave a cautionary instruction
both before and after the reading to consider the testimony as a whole
and not to emphasize this piece of evidence over the others. In
addition, the jury heard the entire testimony of the witness, so it was
not taken out of context, and the testimony turned out to be cumulative.

On rereading testimony generally, the Sixth Circuit relies on guidelines
established in United States v. Padin, 787 F.2d 1071, 1076-77 (6^th^
Cir. 1986). *See, e.g.*, United States v. Rodgers, *supra* at 1142;
United States v. Epley, *supra* at 579 (6^th^ Cir. 1995). In *Padin*,
the Sixth Circuit identified two inherent dangers in reading testimony
to a jury during deliberations. First, undue emphasis may be accorded
the testimony. Second, the limited testimony that is reviewed may be
taken out of context. These concerns escalate after a jury reports it is
unable to reach a verdict. *Padin*, 787 F.2d at 1077, *citing* Henry v.
United States, 204 F.2d 817 (6^th^ Cir. 1953); *see also* United States
v. Rodgers, 109 F.3d 1138, 1143-44 (6^th^ Cir. 1997); United States v.
Epley, 52 F.3d 571, 579 (6^th^ Cir. 1995) .

In United States v. Rodgers, supra, the Sixth Circuit stated that in
addition to the inherent dangers identified in *Padin*, more general
concerns also exist in allowing a jury to read a transcript of
testimony. These concerns are that "(1) any transcript provided to a
jury should be accurate; (2) transcription of side bar conferences, and
any other matters not meant for jury consumption, must be redacted; and
(3) as a purely practical matter, a district court should take into
consideration the reasonableness of the jury's request and the
difficulty of complying therewith." *Rodgers*, 109 F.3d at 1143
(internal quotations omitted).

*1991 Edition*

The purpose of this instruction is to caution the jury not to give undue
emphasis to selected testimony. See generally United States v.
Osterbrock, 891 F.2d 1216, 1219 (6th Cir.1989) (affirming defendant\'s
conviction in part on the ground that a similar cautionary instruction
was given). See also Instruction 9.01, which cautions the jury not to
give undue emphasis to selected instructions.

The decision whether selected testimony should be reread to the jury at
all is left to the trial court\'s sound discretion. E.g., United States
v. Thomas, 875 F.2d 559, 562 (6th Cir.), cert. denied, \_\_\_ U.S.
\_\_\_, 110 S.Ct. 189, 107 L.Ed.2d 144 (1989).

**9.03 PARTIAL VERDICTS**

\(1\) Members of the jury, you do not have to reach unanimous agreement
on all the charges before returning a verdict on some of them. If you
have reached unanimous agreement on some of the charges, you may return
a verdict on those charges, and then continue deliberating on the
others. You do not have to do this, but you can if you wish.

\(2\) If you do choose to return a verdict on some of the charges now,
that verdict will be final. You will not be able to change your minds
about it later on.

\(3\) Your other option is to wait until the end of your deliberations,
and return all your verdicts then. The choice is yours.

\(4\) I would ask that you now return to the jury room and resume your
deliberation.

**Use Note**

This instruction should be used if the jurors ask about, attempt to
return or otherwise indicate that they may have reached a partial
verdict. It may also be appropriate if the jury has deliberated for an
extensive period of time.

**Committee Commentary 9.03**

(current through December 31, 2007

The Committee made no change in the instruction.

The Sixth Circuit held it was not an abuse of discretion to refuse a
supplemental instruction on partial verdicts under the circumstances in
United States v. Ford, 987 F.2d 334 (6^th^ Cir. 1992). The trial court
had given a partial verdict instruction in its initial instructions, and
the verdict forms examined by the district judge during deliberations at
the request of all the defendants showed that the jury had not reached
unanimous verdicts on any defendants or any charges. The court stated,
"Before declaring a mistrial and dismissing a hung jury, a trial judge
may inquire whether the jury has reached a partial verdict with respect
to any of the defendants or any of the charges, but such an inquiry is
not required where the trial judge has already given clear instructions
on the point." *Ford*, 987 F.2d at 340, *citing* United States v.
MacQueen, 596 F.2d 76, 82 (2d Cir. 1979).

*1991 Edition*

Fed.R.Crim.P. 31(b) states that at any time during the deliberations in
a multi-defendant case, the jury \"may return a verdict or verdicts with
respect to a defendant or defendants as to whom it has agreed.\" In a
series of cases, other circuits have recognized that partial verdicts
may be accepted not only as to less than all defendants, but also as to
less than all counts. E.g., United States v. Levasseur, 816 F.2d 37, 45
(2d Cir.1987); United States v. Ross, 626 F.2d 77, 81 (9th Cir.1980).

In United States v. DiLapi, 651 F.2d 140, 147 (2d Cir.1981), cert.
denied, 455 U.S. 938, 102 S.Ct. 1427, 71 L.Ed.2d 648 (1982), and United
States v. Burke, 700 F.2d 70, 78-80 (2d Cir.), cert. denied, 464 U.S.
816, 104 S.Ct. 72, 78 L.Ed.2d 85 (1983), the Second Circuit indicated
that when the jury asks about or attempts to return a partial verdict,
the district court should neutrally explain the jury\'s options of
either returning the verdicts reached, or deferring any verdicts until
the deliberations are concluded. Such an instruction should not
encourage or discourage a partial verdict, and should advise the jury
that any verdict it does return is not subject to later revision. See
United States v. Hockridge, 573 F.2d 752, 756-760 (2d Cir.) (once a
partial verdict is returned, it may not later be impeached), cert.
denied, 439 U.S. 821, 99 S.Ct. 85, 58 L.Ed.2d 112 (1978).

If a partial verdict is returned, the district court may require the
jury to continue its deliberations on the remaining counts. United
States v. Delaughter, 453 F.2d 908, 910 (5th Cir.), cert. denied, 406
U.S. 932, 92 S.Ct. 1769, 32 L.Ed.2d 135 (1972); United States v. Barash,
412 F.2d 26, 32 (2d Cir.), cert. denied, 396 U.S. 832, 90 S.Ct. 86, 24
L.Ed.2d 82 (1969).

None of the circuits that have drafted pattern instructions include an
instruction on partial verdicts. But all five of the other sources
surveyed do in one form or another. See Federal Judicial Center
Instruction 58, D.C. Bar Instruction 2.92, Devitt and Blackmar
Instructions 18.08 and 18.16, Saltzburg and Perlman Instruction 3.68 and
Sand and Siffert Instruction 9-8.

Two of these five (Federal Judicial Center Instruction 58 and Saltzburg
and Perlman Instruction 3.68) include this subject in their general
instruction on verdict forms which is given before the jury retires to
deliberate. The other three include it in a special instruction to be
given only after the jury has indicated that it wants to return a
partial verdict, or after the jury has deliberated for an extensive
period of time.

The Committee believes that the latter approach is preferable.
Initially, at least, the jury should be encouraged to try and reach
unanimous agreement on all counts.

Even if the jury has not specifically asked about or attempted to return
a partial verdict, an instruction like this may be appropriate if the
jury has deliberated for an extensive period of time. What constitutes
an extensive period of time will depend on the nature and complexity of
the particular case.

**9.04 DEADLOCKED JURY**

\(1\) Members of the jury, I am going to ask that you return to the jury
room and deliberate further. I realize that you are having some
difficulty reaching unanimous agreement, but that is not unusual. And
sometimes after further discussion, jurors are able to work out their
differences and agree.

\(2\) Please keep in mind how very important it is for you to reach
unanimous agreement. If you cannot agree, and if this case is tried
again, there is no reason to believe that any new evidence will be
presented, or that the next twelve jurors will be any more conscientious
and impartial than you are.

\(3\) Let me remind you that it is your duty as jurors to talk with each
other about the case; to listen carefully and respectfully to each
other\'s views; and to keep an open mind as you listen to what your
fellow jurors have to say. And let me remind you that it is your duty to
make every reasonable effort you can to reach unanimous agreement. Each
of you, whether you are in the majority or the minority, ought to
seriously reconsider your position in light of the fact that other
jurors, who are just as conscientious and impartial as you are, have
come to a different conclusion.

\(4\) 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. None of you should hesitate to change your mind if, after
reconsidering things, you are convinced that other jurors are right and
that your original position was wrong.

\(5\) But remember this. Do not ever change your mind just because other
jurors see things differently, or just to get the case over with. As I
told you before, in the end, your vote must be exactly that\--your own
vote. As important as it is for you to reach unanimous agreement, it is
just as important that you do so honestly and in good conscience.

\(6\) What I have just said is not meant to rush or pressure you into
agreeing on a verdict. Take as much time as you need to discuss things.
There is no hurry.

\(7\) I would ask that you now return to the jury room and resume your
deliberations.

**Use Note**

This instruction is designed for use when the court concludes that the
jury has reached an impasse and that an Allen charge is appropriate.

A stronger, more explicit reminder regarding the government\'s burden of
proof than the implicit one contained in paragraph (4) may be
appropriate in unusual cases.

**Committee Commentary 9.04**

(current through December 31, 2007)

The Committee made no change in the instruction.

The Sixth Circuit has endorsed the wording of this instruction in United
States v. Clinton, 338 F.3d 483, 487-88 (6^th^ Cir. 2003), quoting the
instruction in full and stating:

> In this circuit, while we have generally approved use of the Sixth
> Circuit Pattern Instruction, we have never explicitly mandated the use
> of that or any instruction to the exclusion of others. We decline to
> do so now, although we take the occasion to express a strong
> preference for the pattern instruction and to point out that its use
> will, in most instances, insulate a resulting verdict from the type of
> appellate challenge that we now face in this case.

*See also* United States v. Reed, 167 F.3d 984, 991 (6^th^ Cir. 1999);
United States v. Frost, 125 F.3d 346, 374-75 (6^th^ Cir. 1997); United
States v. Tines, 70 F.3d 891, 896-97 (6^th^ Cir. 1995).

A related issue is whether giving this instruction is error even when
the content is correct because it is coercive under the circumstances of
the case. Although the Sixth Circuit has stated that it is possible that
giving Instruction 9.04 can be error as coercive even though the content
is correct, the Sixth Circuit has never reached that conclusion in the
cases decided since the promulgation of Instruction 9.04. Rather, it has
concluded that giving Instruction 9.04 was not coercive and was not
error. *See* United States v. Reed, *supra* (instruction given on
twelfth day of deliberations); United States v. Frost, *supra*; United
States v. Tines, *supra*. As the Sixth Circuit explained, "Although
circumstances alone can render an Allen charge coercive, we
traditionally have found an Allen charge coercive when the instructions
themselves contained errors or omissions, not when a defendant alleges
that the circumstances surrounding an otherwise correct charge created
coercion." *Frost*, 125 F.3d at 375.

*1991 Edition*

As its name implies, this instruction is designed for use when the court
concludes that the jury has reached an impasse and that an Allen charge
is appropriate. When such an instruction should be given is left to the
trial court\'s sound discretion. E.g., United States v. Sawyers, 902
F.2d 1217, 1220 (6th Cir.1990).

Instruction 9.04 is a modified version of the instruction approved by
the United States Supreme Court in Allen v. United States, 164 U.S. 492,
501-502, 17 S.Ct. 154, 157, 41 L.Ed. 528 (1896). The Allen decision and
its progeny are thoroughly analyzed in the Committee Commentary to
Instruction 8.04.

Paragraph (1) is patterned after parts of the first paragraph of Fifth
Circuit Instruction 1.41, Eleventh Circuit Trial Instruction 6 and the
third paragraph of Sand and Siffert Instruction 9-11. It is an
introductory, transitional paragraph designed to advise the jurors in a
non-threatening way that further deliberations will be required.

Paragraph (2) is a plain English restatement of certain concepts found
in Fifth Circuit Instruction 1.41, Eleventh Circuit Trial Instruction 6,
D.C. Bar Instruction 2.91 (Alternative B) and Devitt and Blackmar
Instruction 18.14. It emphasizes the importance of trying to reach
unanimous agreement, and explains that no subsequent jury is likely to
be in any better position to decide the case. It does not explicitly
include any admonition about the burden and expense of trial. Although
such language does not necessarily constitute reversible error in the
Sixth Circuit, see United States v. Giacalone, 588 F.2d 1158, 1167 (6th
Cir.1978) (not reversible error, at least in the absence of any specific
objection), cert. denied, 441 U.S. 944, 99 S.Ct. 2162, 60 L.Ed.2d 1045
(1979), it has been criticized as a \"questionable extension\" of Allen.
See United States v. Harris, 391 F.2d 348, 354 (6th Cir.), cert. denied,
393 U.S. 874, 89 S.Ct. 169, 21 L.Ed.2d 145 (1968).

Paragraph (3) reminds the jurors of their duty to consult with each
other, using the same language used in Instruction 8.04.

Paragraph (4) admonishes all the jurors, whether they are in the
majority or the minority, to reconsider their position in light of the
contrary position taken by other jurors, and concludes by telling the
jurors that they should not hesitate to change their minds if they
decide that their original position should be abandoned.

Admonishing the majority to reconsider their position represents a
significant departure from the instructions approved by the Supreme
Court in Allen. The instructions in Allen focused exclusively on the
jurors who were in the minority, and directed them to reconsider their
position in light of the fact that the majority had come to a different
conclusion. Although the Supreme Court recently reaffirmed the
continuing validity of Allen in Lowenfield v. Phelps, 484 U.S. 231, 108
S.Ct. 546, 98 L.Ed.2d 568 (1988), the Court noted that there is even
less doubt about the validity of Allen charges that omit the language
focusing exclusively on minority jurors. Id. at 238, 108 S.Ct. at 551.

Focusing exclusively on the minority jurors has been criticized by the
American Bar Association Standards for Criminal Justice, Trial by Jury
Standard 15-4.4, Commentary at page 15-140, as unduly coercive of
minority jurors. See also Williams v. Parke, 741 F.2d 847, 850 (6th
Cir.1984) (\"A major criticism of the Allen charge focuses on \'its
potentially coercive effect on minority jurors\'.\"), cert. denied, 470
U.S. 1029, 105 S.Ct. 1399, 84 L.Ed.2d 787 (1985). Such language has been
omitted entirely from the pattern instructions promulgated by the
Seventh and Ninth Circuits and the Federal Judicial Center. The Fifth
and Eleventh Circuits retain this language, although in slightly
modified form. See Fifth Circuit Instruction 1.41 and Eleventh Circuit
Trial Instruction 6.

The language in paragraph (4) admonishing all the jurors to reconsider
their position is a plain English restatement of language found in D.C.
Bar Instruction 2.91 (Alternative B). Although it does not go as far as
Allen would allow, it still encourages jurors to reconsider their
positions in light of the fact that other jurors disagree, and does so
in a more evenhanded way that should be much less susceptible to
successful appellate attack. It is based on the philosophy that the
purpose of a supplemental charge should not be to coerce minority jurors
into joining the majority. Instead, such a charge should be aimed at
breaking down the barriers to communication that have developed and
rekindling reasoned discussion.

Paragraph (5) is a plain English restatement of the required admonition
that jurors should never surrender a conscientious belief merely for the
purpose of reaching agreement. See for example United States v. Scott,
547 F.2d 334, 337 (6th Cir.1977) (referring to this admonition as \"one
of the most important parts of the Allen charge\"). The language used is
patterned after the language used in Instruction 8.04.

Some Allen charges include language telling the jurors that if, after
further deliberation, they cannot conscientiously agree, the court will
discharge them. See Hyde v. United States, 225 U.S. 347, 383, 32 S.Ct.
793, 808, 56 L.Ed. 1114 (1912), and United States v. Barnhill, 305 F.2d
164, 165 (6th Cir.), cert. denied, 371 U.S. 865, 83 S.Ct. 126, 9 L.Ed.2d
102 (1962). See also Williams v. Parke, supra, 741 F.2d at 850 (trial
court\'s instructions implicitly advised jurors of their right to
continue disagreeing by alluding to the possibility that a new jury
might be necessary, and by telling them to return to court if they could
not agree). The Committee believes that such language is not necessary
given the other language in the instruction minimizing its coercive
effect. See also United States v. Arpan, 887 F.2d 873, 876 (8th
Cir.1989) (specific instruction on \"hung jury\" alternative is not
required where the district court\'s original instructions advised the
jurors that they should try to reach agreement if they could do so
without violence to individual judgment, and that they should not
surrender their honest convictions for the mere purpose of returning a
verdict).

Paragraph (6) is patterned after language included in Fifth Circuit
Instruction 1.41 and Eleventh Circuit Trial Instruction 6. It is
designed to blunt the potential coercive effect of a supplemental charge
by explicitly telling the jurors that they should take as much time as
they need, and that nothing said by the court in the supplemental charge
was meant to try and rush or pressure them into reaching a verdict. As
indicated by the Sixth Circuit in United States v. Markey, 693 F.2d 594,
597 (6th Cir.1982), supplemental instructions should convey the
impression that it is more important to be thoughtful than it is to be
quick.

A strong argument can be made that a supplemental charge should
explicitly remind the jurors that the government bears the burden of
proof in a criminal case, and that if the government has failed to prove
guilt beyond a reasonable doubt, then the defendant is entitled to a not
guilty verdict. These concepts were included in the seminal version of
the Allen charge. See Pugliano v. United States, 348 F.2d 902, 903-904
(1st Cir.), cert. denied, 382 U.S. 939, 86 S.Ct. 390, 15 L.Ed.2d 349
(1965), discussing Commonwealth v. Tuey, 62 Mass. (8 Cush) 1, 2-3
(1851). Sixth Circuit cases have said that such a reminder \"may be
desirable,\" United States v. LaRiche, 549 F.2d 1088, 1093 (6th Cir.),
cert. denied, 430 U.S. 987, 97 S.Ct. 1687, 52 L.Ed.2d 383 (1977), or
even required under particular circumstances. See United States v.
Lewis, 651 F.2d 1163, 1165 (6th Cir.1981) (given the weakness of the
evidence against the defendant and the jury\'s difficulty in weighing
the evidence, it was improper not to reinstruct on the government\'s
burden of proving guilt beyond a reasonable doubt). Fifth Circuit
Instruction 1.41, Eleventh Circuit Trial Instruction 6 and Devitt and
Blackmar Instruction 18.14 all include an explicit reminder regarding
these concepts.

The Committee rejected this approach in favor of an implicit reminder in
paragraph (4). Language in that paragraph directs those jurors who
believe that the government has proved the defendant guilty beyond a
reasonable doubt to stop and ask themselves if the evidence is
sufficiently convincing in light of the fact that other jurors are not
convinced. Other language then directs those jurors who believe that the
government has not proved the defendant guilty beyond a reasonable doubt
to stop and ask themselves if their doubt is a reasonable one in light
of the fact that other jurors do not share their doubt. This language
works the reasonable doubt concept into the instruction in a neutral and
evenhanded way that does not tip the scales towards a not guilty
verdict. While an explicit reminder that is slanted toward a not guilty
verdict may be appropriate in unusual cases, or in supplemental
instructions like Fifth Circuit Instruction 1.41, Eleventh Circuit Trial
Instruction 6, or Devitt and Blackmar Instruction 18.14, all of which
single out and focus exclusively on minority jurors, such a reminder
would upset the balanced nature of this instruction, which directs all
the jurors to reconsider their views.

The Sixth Circuit has strongly condemned language that tells jurors the
case must be \"decided\" at some time by some jury, on the ground that
such language is coercive and misleading because it precludes the right
of a defendant to rely on the possibility of continuing juror
disagreement. United States v. Harris, supra, 391 F.2d at 355. In
contrast, the Sixth Circuit has said that there is a clear distinction
between language stating that the case must be \"decided\" and language
stating that the case must be \"disposed\" of. Id. at 356. The latter
\"merely restates the obvious proposition that all cases must come to an
end at some point, whether by verdict or otherwise.\" United States v.
LaRiche, supra, 549 F.2d at 1092.

While this distinction may be clear to lawyers, lay jurors are unlikely
to grasp or understand it without further explanation. For this reason,
the proposed instruction omits any such language. It should be noted,
however, that paragraph (2) emphasizes the related concept that no
subsequent jury is likely to be in any better position to decide the
case.

**9.05 QUESTIONABLE UNANIMITY AFTER POLLING**

\(1\) It appears from the poll we just took that your verdict may not be
unanimous. So I am going to ask that you return to the jury room.

\(2\) If you are unanimous, tell the jury officer that you want to
return to the courtroom, and we will poll you again. If you are not
unanimous, please resume your deliberations. Talk to each other, and
make every reasonable effort you can to reach unanimous agreement, if
you can do so honestly and in good conscience.

**Use Note**

This instruction should be used when a poll of the jury indicates that a
proffered verdict may not be unanimous.

Depending on the circumstances, the court may wish to expand on the
concepts contained in the last sentence of paragraph (2).

**Committee Commentary 9.05**

(current through December 31, 2007)

The Committee made no change in the instruction. The Committee also
decided that no change in or addition to the 1991 Committee Commentary
is warranted.

*1991 Edition*

Most of the sources surveyed include an instruction to be used when a
poll of the jury indicates that a proffered verdict may not be
unanimous. See Seventh Circuit Instruction 7.07, Eighth Circuit
Instruction 10.03, Ninth Circuit Instruction 7.06, Federal Judicial
Center Instruction 59, D.C. Bar Instruction 2.93, Devitt and Blackmar
Instruction 18.17, Saltzburg and Perlman Instruction 3.70 and Sand and
Siffert Instruction 9-12.

This instruction is patterned after Saltzburg and Perlman Instruction
3.70 and Federal Judicial Center Instruction 59. Depending on the
circumstances, the district court may wish to expand on the last
sentence which briefly summarizes the concepts contained in Instructions
8.04 and 9.04.