green
Positive treatment
Doctrinal family: Lowenfield v. Phelps ↗
Issue: reasons ruleFL ↗
Issue: wording instructionOH ↗
Issue: Allen instructionUT ↗
Issue: missing witness instructionNY ↗
Quoted verbatim 6×
34.8 score
Quick Summary
A trial judge's inquiry into the numerical division of a deadlocked jury constitutes grounds for reversal even if the defense fails to object.
After a jury failed to reach a verdict, the trial judge inquired into the numerical division of the jury members. Although the foreman did not indicate which side favored conviction, the petitioners challenged the inquiry. The court considers whether a judge's inquiry into the extent of a jury's numerical division constitutes reversible error. The court holds that such an inquiry is improper because it serves no useful purpose that cannot be achieved through other means and tends to be coercive. Because the inquiry itself affects the fair and impartial conduct of the trial, it constitutes grounds for reversal.
G Cite
cited 6× by 1 distinct case, last quoted 1984 ·
…we deem it essential to the fair and impartial conduct of the trial that the inquiry itself should be regarded as grounds for reversal.
✓
cited 3× by 2 distinct cases, last quoted 2006 ·
…failed to agree after some hours of deliberation,
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cited 3× by 1 distinct case, last quoted 2003 ·
…such procedure serves no useful purpose that cannot be attained by 576 questions not requiring the jury to reveal the nature or extent of its division
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Treatment trajectory · 1927 → 2026 · click a year to view as-of
1927
1976
2026
Top citers, strongest first. 50 distinct citers.
How cited ↗
examined
Cited "but see"
State v. Robinette
(12×)
also: Cited "see"
But see Brasfield v. United States, 272 U.S. 448 , 47 S.Ct. 135 , 71 L.Ed. 345 ; Hodges v. United States, 408 F.2d 543, 554 (8 Cir. 1969); and Jacobs v. United States, 279 F.2d 826 (8 Cir. 1960).
discussed
Cited as authority (verbatim quote)
United States v. Malik Nasir
failure of petitioners' counsel to particularize an exception to the court's inquiry does not preclude this court from correcting the error.
discussed
Cited as authority (verbatim quote)
United States v. Malik Nasir
failure of petitioners' counsel to particularize an exception to the court's inquiry does not preclude this court from correcting the error.
examined
Cited as authority (verbatim quote)
Dawson v. State
(3×)
also: Cited as authority (quoted)
the inquiry into the jury's numerical division necessitated reversal because it was generally coercive and always brought to bear 'in some degree, serious although not measurable, an improper influence on the jury'.
examined
Cited as authority (quoted)
State v. Parisien
(3×)
we deem it essential to the fair and impartial conduct of the trial, that the inquiry itself 313 should be regarded as ground for reversal
examined
Cited as authority (quoted)
State v. Tremblay
(3×)
such procedure serves no useful purpose that cannot be attained by 576 questions not requiring the jury to reveal the nature or extent of its division
examined
Cited as authority (quoted)
United States v. Daphne W. Essex
(6×)
we deem it essential to the fair and impartial conduct of the trial that the inquiry itself should be regarded as grounds for reversal.
discussed
Cited as authority (rule)
People v. Herring
(2×)
The court's request for clarification of an ambiguous jury note regarding the status of deliberations did not inadvertently "coerce the jury" merely because it inadvertently elicited a note in response that set forth the numerical division among the jurors ( see Brasfield v United States , 272 US 448, 449 [1926]).
discussed
Cited as authority (rule)
David Sanchez v. the State of Texas
Finally, Sanchez observes that “[i]f a trial judge inquires into the numerical division of the jury and then gives an Allen charge, the charge is per se coercive and requires reversal.” United States v. Ajiboye, 961 F.2d 892 , 893–94 (9th Cir. 1992) (citing Brasfield v. United States, 272 U.S. 448, 450 (1926) (finding that a trial court may not “inquir[e] of a jury, unable to agree, the extent of its numerical division”)).
discussed
Cited as authority (rule)
Thorn v. Greene
See Lowenfield, 484 U.S. at 239–40 (acknowledging that there is a potential danger for jury coercion when a judge is aware of the numerical division of the jury on the merits of the verdict); cf. Brasfield v. United States, 272 U.S. 448, 450 (1926) (holding under the Supreme Court’s supervisory powers that a federal judge's affirmative inquiry into how the jury was divided was per se coercive and required reversal).
cited
Cited as authority (rule)
Dimas Gonzales v. the State of Texas
However, this purported conference is not supported by the contemporaneous reporter’s record from when the jury returned its verdict. 22 minority.” Brasfield v. U.S., 272 U.S. 448, 450 (1926).
discussed
Cited as authority (rule)
United States v. Denzell Russell
Co. v. Johnson, 279 U.S. 310, 318 (1929) (correcting plain error where “paramount considerations are involved”); Brasfield v. United States, 272 U.S. 448, 450 (1926) (“The failure of petitioners’ counsel to particularize an exception to the court’s inquiry does not preclude this court from correcting the error.
discussed
Cited as authority (rule)
Abbott v. E.I. du Pont de Nemours and Company
The Sixth Circuit has “held that the trial court’s mere knowledge of the jury’s numerical split is not dispositive under Brasfield [v. United States, 272 U.S. 448, 450 (1926)], if the information was volunteered by the jury, but that it is incumbent on the court, in such a case, to instruct both sides to reconsider their positions.” Bhat, 23 Fed.
discussed
Cited as authority (rule)
Swartz v. E.I. du Pont de Nemours and Company
The Sixth Circuit has “held that the trial court’s mere knowledge of the jury’s numerical split is not dispositive under Brasfield [v. United States, 272 U.S. 448, 450 (1926)], if the information was volunteered by the jury, but that it is incumbent on the court, in such a case, to instruct both sides to reconsider their positions.” Bhat, 23 Fed.
discussed
Cited as authority (rule)
United States v. Jabree Williams
(2×)
also: Cited "see"
When the error threatens “the fair and impartial conduct of the trial,” the fact that it was not raised contemporaneously “does not preclude [the appellate court] from correcting [it].” Brasfield v. United States, 272 U.S. 448, 450 (1926).
discussed
Cited as authority (rule)
Moore v. Wachtendorf
We believe the type of question asked by the trial court in this case is exactly what the Court in Brasfield implicitly approved when it stated: “[An inquiry as to numerical division] serves no useful purpose that cannot be attained by questions not requiring the jury to reveal the nature or extent of its division.” Lowenfield v. Phelps, 484 U.S. 231, 240 (1988) (quoting Brasfield v. United States, 272 U.S. 448, 450 (1926)).
discussed
Cited as authority (rule)
Corey Darnell Moore, Applicant-Appellant v. State of Iowa
We believe the type of question asked by the trial court in this case is exactly what the Court in Brasfield implicitly approved when it stated: “[An inquiry as to numerical division] serves no useful purpose that cannot be attained by questions not requiring the jury to reveal the nature or extent of its division.” Lowenfield v. Phelps, 484 U.S. 231, 240 (1988) (quoting Brasfield v. United States, 272 U.S. 448, 450 (1926)).
discussed
Cited as authority (rule)
Jones v. the State
For this proposition Jones relies on Brasfield v. United States, 272 U. S. 448, 449 ( 47 SCt 135 , 71 LE 345) (1926), where the United States Supreme Court states “this Court condemned the practice of inquiring of a jury unable to agree, the extent of its numerical division.” Id. at 449 .
cited
Cited as authority (rule)
United States v. Javier Amaya
Brasfield v. United States, 272 U.S. 448, 450 (1926).
discussed
Cited as authority (rule)
State v. Joseph Paul Mobley
See Jenkins v. United States, 380 U.S. 445, 446 (1965) (holding that an instruction given after the jury informed the judge that it was unable to reach a verdict, and the judge told the jury it had to reach a decision, was improper after relying on other cases involving the exercise of supervisory powers, and not relying on constitutional grounds); Brasfield v. United States, 272 U.S. 448, 449-50 (1926) (holding that the judge’s inquiry into the jury’s numerical division was improper due to the potential dangers of jury polling by relying on the Court’s supervisory powers).
discussed
Cited as authority (rule)
People v. Valdez
He first challenges the court’s statement, “I am going to assume only because statistical probabilities favor[] my assumption that you are not deadlocked 6-6, that it’s some other numerical division.” He bases his challenge on the high court’s decision in Brasfield v. United States (1926) 272 U.S. 448, 449 [71 LJEd. 345, 47 S.Ct. 135 ], which held that a trial court reversibly errs in asking a jury that is unable to reach a verdict how it is divided numerically, even where the numbers for conviction and acquittal are neither requested nor revealed.
discussed
Cited as authority (rule)
United States v. Delgado
(2×)
See Hemphill v. United States, 312 U.S. 657, 657 (1941) (per curiam) (remanding to the Ninth Circuit “with directions to consider the sufficiency of the evidence to support the verdict” even though the issue had not been raised below); United States v. Atkinson, 297 U.S. 157, 160 (1936) (“In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial pr…
discussed
Cited as authority (rule)
United States v. Delgado
(2×)
See Hemphill v. United States, 312 U.S. 657, 657 (1941) (per curiam) (remanding to the Ninth Circuit “with directions to consider the sufficiency of the evidence to support the verdict” even though the issue had not been raised below); United States v. Atkinson, 297 U.S. 157, 160 (1936) (“In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial pr…
discussed
Cited as authority (rule)
United States v. Joseph Mudekunye
See, e.g., Wiborg, 163 U.S. at 658 (reversing judgment where no evidence showed captain’s mates had knowledge of criminal act); see also Clyatt v. United States, 197 U.S. 207, 221-22 (1905) (remand required where “there [wa]s not a scintilla of testimony” supporting defendant’s conviction); Brasfield v. United States, 272 U.S. 448, 450 (1926) (judge’s polling jurors during their deliberations created specter of juror-coercion); Weems v. United States, 217 U.S. 349, 362, 382 (1910) (holding statute unconstitutional).
discussed
Cited as authority (rule)
State v. Pullin
(2×)
See Jenkins v. United States, 380 U.S. 445, 446 , 85 S.Ct. 1059, 1060 , 13 L.Ed.2d 957, 958 (1965) (holding that an instruction given after the jury informed the judge that it was unable to reach a verdict, and the judge told the jury it had to reach a decision, was improper after relying on other cases involving the exercise of supervisory powers, and not relying on constitutional grounds); Brasfield v. United States, 272 U.S. 448, 449-50 , 47 S.Ct. 135, 135-36 , 71 L.Ed. 345, 346 (1926) (holding that the judge’s inquiry into the jury’s numerical division was improper due to the potential…
discussed
Cited as authority (rule)
Harrison v. Gillespie
The Court has held that it is permissible for courts to instruct dissenting jurors to be willing to reconsider their views, Allen v. United States, 164 U.S. 492, 501 (1896), and to poll them to determine whether further deliberations would be ben- eficial, Lowenfield v. Phelps, 484 U.S. 231, 240 (1988), but it has barred federal courts (though not state courts) from inquiring about the numerical breakdown of a divided jury, Brasfield v. United States, 272 U.S. 448, 450 (1926), and from requiring the jury to return a verdict, either explicitly, Jenkins v. United States, 380 U.S. 445, 446 (1965)…
discussed
Cited as authority (rule)
United States v. McCaleb
Coercion can occur when, for example, a district court tells a jury that it must reach a decision, Jenkins v. United States, 380 U.S. 445, 446 (1965), a district court polls a jury before it reaches a verdict, Bras- field v. United States, 272 U.S. 448, 449-50 (1926), or a spe- cial verdict form “reformulate[s] the elements of the crime,” United States v. Reed, 147 F.3d 1178, 1181 (9th Cir. 1998). [2] We conclude that McCaleb’s assertion that the district court coerced a verdict lacks merit.
discussed
Cited as authority (rule)
Brown v. Bradshaw
Unlike Brasfield v. United States, 272 U.S. 448, 449-50 (1926), where the trial court inquired into the numerical division of the jury, the trial court in Lowenfield inquired whether further deliberations might assist the jury in returning a verdict.
cited
Cited as authority (rule)
State v. Williams
Defendant also relies upon Brasfield v. United States, 272 U.S. 448, 450 , 71 L.
discussed
Cited as authority (rule)
Lyell v. Renico
The instant case arguably represents the most objectionable form of polling conceivable prior to a court giving an Allen charge, and constitutes the kind of inquiry impliedly disproved of by Brasfield v. United States, 272 U.S. 448, 449 (1926) and Lowenfield v. Phelps, 484 U.S. 231, 240 (1988).
discussed
Cited as authority (rule)
State v. Raye
(2×)
also: Cited "see, e.g."
For example, in Brasfield v. United States, 272 U.S. 448, 449 (1926), the United States Supreme Court considered the propriety of a district court's inquiry into the numerical division of a stalled jury.
cited
Cited as authority (rule)
Richard Roll v. State
This was held to be impermissibly coercive in Brasfield v. United States , 272 U.S. 448, 449 (1926).
discussed
Cited as authority (rule)
Richard Anthony Tucker v. William D. Catoe, Director, South Carolina Department of Corrections Charles M. Condon, Attorney General, State of South Carolina, Richard Anthony Tucker v. William D. Catoe, Director, South Carolina Department of Corrections Charles M. Condon, Attorney General, State of South Carolina
See Burton v. United States, 196 U.S. 283, 307-08 (1905) (condemning trial court knowledge of jury voting and noting: "Cases may easily be imagined where a practice of this kind might lead to improper influences, and for this reason it ought not to obtain."); Brasfield v. United States, 272 U.S. 448, 449-50 (1926) (same).
discussed
Cited as authority (rule)
United States v. McCoy
While it would be error for the judge to inquire into the numerical division of the jury, see Brasfield v. United States, 272 U.S. 448, 450 (1926), here the judge was inadvertently told about the split and then discussed the ramifica- tions with counsel.
discussed
Cited as authority (rule)
People v. Gill
(Brasfield v. United States (1926) 272 U.S. 448, 450 [ 47 S.Ct. 135, 136 , 71 L.Ed. 345 ].) California courts do allow the practice of inquiring into the jury’s numerical division, without finding out how many are for conviction and how many for acquittal.
cited
Cited as authority (rule)
State v. Adkisson
R.R. v. Johnson, 279 U.S. 310, 318-19 , 49 S.Ct. 300, 303-04 , 73 L.Ed. 706, 710-11 (1929); Brasfield v. United States, 272 U.S. 448, 450 , 47 S.Ct. 135, 136 , 71 L.Ed. 345, 346 (1926).
cited
Cited as authority (rule)
State v. McMahon
Brasfield v. United States, 272 U.S. 448, 450 (1926) (citations omitted).
discussed
Cited as authority (rule)
People v. Johnson
(2×)
Defendant acknowledges that a trial court has discretion to determine whether or not there is a reasonable probability that the jurors will be able to agree (ง 1140; People v. Rodriguez, supra, 42 Cal.3d at p. 775 ), and correctly observes that the court must exercise its power without coercing the jury, to avoid displacing the jury's independent judgment "`in favor of considerations of compromise and expediency.'" ( Ibid., quoting People v. Carter (1968) 68 Cal.2d 810, 817 [ 69 Cal. Rptr. 297 , 442 P.2d 353 ].) He notes that the United States Supreme Court, as an exercise of its supervisory…
discussed
Cited as authority (rule)
United States v. Maryland and Virginia Milk Producers Cooperative Association, Inc., D/B/A Marva Maid Dairy
The instruction allowed the jury to properly consider whether an agreement to rig bids between Elliott and Pet Dairy ever existed, which is the gravamen of the Sherman Act count, and thus, the instruction did not "undermine the fundamental fairness of the trial and [result in] a miscarriage of justice." Brasfield v. United States, 272 U.S. 448, 450 (1926); United States v. Polowichak, 783 F.2d 410, 416 (4th Cir. 1986).
discussed
Cited as authority (rule)
John C. Camel v. Dewey Sowders
And, I'll ask that you retire back to the jury room at his time for further deliberations and we'll be in recess until the jury returns. 27 (Jury left courtroom.)" 28 In Brasfield v. United States, 272 U.S. 448, 450 (1926), the Supreme Court held that it is reversible error for a federal trial judge to give an Allen charge after having inquired as to the division of the jury.
cited
Cited as authority (rule)
Rodriguez v. State
Brasfield v. United States, 272 U.S. 448, 450 , 47 S.Ct. 135, 135-36 , 71 L.Ed. 345, 346 (1926).
examined
Cited as authority (rule)
Lowenfield v. Phelps
(4×)
Observing that *251 the court's inquiries regarding the helpfulness of further deliberations were "clearly independent" of an inquiry regarding the jury's stance on the merits, the Court concludes that the pollings of the jury did not " `reveal the nature or extent of its division.' " Ante, at 240 (quoting Brasfield v. United States, 272 U. S. 448, 450 (1926)).
discussed
Cited as authority (rule)
United States v. Young
(2×)
Although the Court is surely correct in emphasizing the impropriety of the crude oil condensate blending scheme that Young participated in, there was significant evidence that, if believed, might well have suggested Young’s innocent though ignorant motives. 15 Third, the Court altogether fails to consider whether the prosecutor’s gross misconduct and flouting of the professional canons “seriously affect[ed] the . . . integrity or public reputation of [the] judicial proceedings.” United States v. Atkinson, 297 U. S., at 160 ; see also United States v. Frady, 456 U. S., at 162, n. 11 ; B…
examined
Cited as authority (rule)
People v. Duran
(4×)
The question before the United States Supreme Court in Brasfield was whether the trial court in a criminal case had committed reversible error by asking the jury “how it was divided numerically, . . . although a response indicating the vote in favor of or against conviction was neither sought nor obtained.” (See Brasfield v. Unites States, supra, 272 U.S. 448 at p. 449 [ 71 L.Ed. 345 at p. 346 ].) The court found reversible error, stating: “We deem it essential to the fair and impartial conduct of the trial, that the inquiry itself should be regarded as ground for reversal.
discussed
Cited as authority (rule)
State v. Roberts
(2×)
Brasfield v. United States, 272 U.S. 448, 450 , 47 S.Ct. 135 , 71 L.Ed. 345, 346 (1962).
discussed
Cited as authority (rule)
United States v. Leon Dudley Noah, Ronnie Kinsey, and Joseph Corre Lamb, Jr., Defendants
(2×)
Such a practice, which is never useful and is generally harmful, is not to be sanctioned. 3 272 U.S. at 450 , 47 S.Ct. at 135, 136 . 4 In the present case, the inappropriate inquiry was not only made once, but was made twice, once on two separate days.
discussed
Cited as authority (rule)
Dean P. Epperson v. United States
(2×)
Brasfield v. United States, 272 U.S. 448, 450 ( 47 S.Ct. 135 , 71 L.Ed. 345 ).' 24 For the reasons set forth herein, I would reverse and remand for a new trial. 1 Senior District Judge of the District of Utah sitting by designation
examined
Cited as authority (rule)
Fields v. State
(4×)
To presume that an average juror will not recognize and succumb to these pressures in the face of indefinite confinement is to presume the absurd. [12] In condemning the practice of inquiring into the numerical division of a jury unable to agree, the United States Supreme Court has indicated "every consideration other than that of the evidence and the law as expounded in a proper charge, should be excluded." Brasfield v. United States, 272 U.S. 448, 450 , 47 S.Ct. 135, 136 , 71 L.Ed. 345, 346 (1926).
discussed
Cited as authority (rule)
United States v. Francis G. Brooks
(2×)
Its effect upon a divided jury will often depend upon circumstances which cannot properly be known to the trial judge or to the appellate courts and may vary widely in different situations, but in general its tendency is coercive. * * * Such a practice, which is never useful and is generally harmful, is not to be sanctioned. 272 U.S. at 450 , 47 S.Ct. at 135 (emphasis added).
discussed
Cited "see"
Danita Carol Thetford v. State
(2×)
See Lowenfield, 484 U.S. at 240 , 108 S. Ct. at 552 (recognizing that Brasfield v. United States, 272 U.S. 448, 450 , 47 S. Ct. 135, 136 (1926) implicitly approved inquiries as to whether further deliberations would be beneficial because such inquiries do not “requir[e] the jury to reveal the nature or extent of its division”).
Retrieving the full opinion text from the archive…
BRASFIELD Et Al.
v.
UNITED STATES
v.
UNITED STATES
243.
Supreme Court of the United States.
Nov 22, 1926.
Mr. John W. Preston for the petitioner, submitted., Assistant to the Attorney General Donovan, with whom Solicitor General Mitchell and Mr. William D. Whitney, Special Assistant to the Attorney General, were on the brief, for the United States.
Stone.
Cited by 487 opinions | Published
Mr. Justice Stone
delivered the opinion of the Court.
Petitioners were convicted in the District Court for northern California of the offense (§ 37 of the Criminal Code) of conspiracy to possess and transport intoxicating liquors in violation of the National Prohibition Act. The conviction was affirmed by the Court of Appeals for the Ninth Circuit. 8 Fed. (2d) 472. This Court granted certiorari. 269 U. S. 550; Jud. Code, § 240(a) as amended.
The only errors assigned which are pressed upon us concern proceedings had upon the recall of the jury after its retirement. The jury having failed to agree after some hours of deliberation, the trial judge inquired how it was divided numerically, and was informed by the foreman that it stood nine to three, without his indicating which number favored a conviction.
In Burton v. United States, 196 U. S. 283, 307, where a conviction was reversed on other grounds, this Court condemned the practice of inquiring of a jury unable to agree, the extent of its numerical division, although a response indicating the vote in favor of or against conviction was neither sought nor obtained. This Court then said (p. 308):
"... we do not think that the proper administration of the law requires;such knowledge or permits such a question on the part of the presiding judge.”
There is a diversity of view in the circuit courts of appeals whether non-compliance with the rule as stated in the Burton case is reversible error, or whether the .expressions in that opinion are hortatory only. See St. Louis & S. F. R. R. v. Bishard (C. C. A. 8th), 147 Fed. 496; Stewart v. United States (C. C. A. 8th), 300 Fed. 769, 782, et seq.; Nigro v. United States (C. C. A. 8th), 4 Fed.[*450] (2d) 781, holding that the inquiry requires a reversal; and compare Bernal v. United States (C. C. A. 5th), 241 Fed. 339, 342; Quong Duck v. United States (C. C. A. 9th), 293 Fed. 563, 564, supporting the view that the practice, while improper, is not prejudicial error.
We deem it essential to the fair and impartial conduct of the trial, that the inquiry itself should be regarded as ground for reversal. Such procedure serves no useful purpose that cannot be attained by questions not requiring the jury to reveal the nature or extent of its division. Its effect upon a divided jury will often depend upon circumstances which cannot properly be known to the trial judge or to the appellate courts and may vary widely in different situations, but in general its tendency is coercive. It can rarely be resorted to without bringing to bear in some degree, serious although not measurable, an improper influence upon the jury, from whose deliberations every consideration other than that of the .evidence and the law as expounded in a proper charge, should be excluded. Such a practice, which is never useful and is generally harmful, is not to be sanctioned.
The. failure of petitioners’ counsel to particularize an •exception to the court’s inquiry does not preclude this Court from correcting the error. Cf. Wiborg v. United States, 163 U. S. 632, 658, et seq.; Clyatt v. United States, 197 U. S. 207, 220, et seq.; Crawford v. United States, 212 U. S. 183, 194; Weems v. United States, 217 U. S. 349, 362. This is especially the case where the error, as here, affects the proper relations of the court to the jury, and cannot be effectively remedied by modification of the judge’s charge after the harm has been done.
It is unnecessary to consider other assignments of error directed to the instructions given the jury at the time of its recall.
Judgment reversed.