Third Circuit finds no reversible error in judge telling deadlocked jurors, “the note is you are unable to come to a unanimous decision, but you have to.”

As we just saw with the Lindsay Clancy case, juries can deadlock, leading to a hung jury and a mistrial. So, what should happen when the jury sends a note that they’re deadlocked to the judge, who responds with a supplemental instruction that they must reach a unanimous verdict? That was the question addressed by the Third Circuit in its recent opinion in United States v. Epps, 2026 WL 2451703 (3rd Cir. 2026).

In Epps, a search of the defendant’s SUV uncovered “two firearms, ammunition, about $15,000 in cash, a digital scale, assorted drug paraphernalia, and drugs in a variety of packages. The smaller packages of drugs bore ‘Papa Smurf’ and ‘Skull Crusher’ stamps. Testing later revealed that the drugs marked ‘Papa Smurf’ contained fentanyl and other substances, while the drugs marked ‘Skull Crusher’ contained fentanyl, cocaine, methamphetamine, heroin, and other substances.”

The defendant was charged with various crimes in connection with these discoveries. At the close of the case, the judge instructed the jury that, inter alia, “Whatever your verdict is, it will have to be unanimous. All of you have to agree on it, or there will be no verdict.” After about three hours of deliberations, the jurors sent a note to the judge that they were deadlocked. In response, the judge issued a supplemental jury instruction tellin the jurors, inter alia, “All right. I understand you have a note, and the note is you are unable to come to a unanimous decision, but you have to.” The jurors thereafter returned with a guilty verdict.

The district court later granted the defendant a new trial based upon the impropriety of this supplemental instruction. The Third Circuit disagreed, ruling as follows:

Here, the supplemental instruction was not unduly coercive. The record shows that the District Court was not trying “to blast a hung jury into verdict” when it gave the supplemental instruction….Instead, the District Court made a misstatement after repeatedly giving the jury correct instructions about unanimity.

In its preliminary instructions on the first day of trial, the District Court told the jury that there would be no verdict absent unanimous agreement. That implicitly acknowledged the possibility that the jury would return “no verdict because of a lack of unanimity.”…And on the second (and last) day of trial, the District Court’s final charge again included a correct statement about unanimity: “Whatever your verdict is, it will have to be unanimous.”…

In both its preliminary and final instructions, the District Court said each juror would need to make up his or her own mind. In the final charge, the District Court said, “[I]t’s your vote, your individual vote, and don’t ever change your mind just because other jurors see things differently or just to get the case over with. It’s important for you to reach a unanimous agreement, but only if you can do so honestly and in good conscience.”…The District Court also repeatedly told the jury that it must make its decision based solely on the evidence presented during trial.

A few hours after giving the final jury charge, the District Court made its incorrect statement about unanimity. But it did not make that statement in isolation. The supplemental instruction also repeated correct messaging, reminding the jury: “[Y]ou’ve got the time. Be respectful to each other, listen to each other, and apply the law to the facts, the evidence. Remember, you are not to be motivated by biases or sympathy or prejudice o[r] any kind of preconceived notions. You are just to apply the law to the facts.”…So, unlike cases in which we discerned undue coercion, the District Court’s supplemental instruction never introduced improper considerations into the jury’s deliberations….

Nor did the supplemental instruction encourage any jurors to change their votes or otherwise disparage the views of any jurors….

Considering all this, the supplemental instruction, reviewed in full and in context, “did not so prejudice the jury’s deliberations such that the jury reached [its] verdict upon considerations of matters other than the evidence in the record.”…So it was not unduly coercive.

I fundamentally disagree with the Third Circuit’s opinion. When a jury tells the judge it is deadlocked and he responds “the note is you are unable to come to a unanimous decision, but you have to,” I don’t see how that’s anything other than unduly coercive.