State v. Bracken: Louisiana Embraces the Modified Allen Charge and Overrules Nicholson

1. Introduction

The Supreme Court of Louisiana’s decision in State of Louisiana v. Dionte Bracken, 2024-K-00375 (La. June 27, 2025) marks a seismic shift in Louisiana criminal procedure. For the first time in five decades, trial judges in Louisiana may again issue a supplemental “Allen charge” to encourage deadlocked juries to continue deliberating, provided the charge is not coercive when viewed in its totality. The Court reversed the First Circuit’s order granting Bracken a new trial, expressly abrogated its own 1975 decision in State v. Nicholson, 315 So.2d 639 (La. 1975), and aligned state practice with the federal Fifth Circuit’s model Allen charge.

The case arose from Dionte Bracken’s convictions for second-degree murder and attempted second-degree murder stemming from an August 2020 shooting. During deliberations the jury asked several questions about hung juries. The trial judge gave a supplemental instruction that the court of appeal deemed an impermissible Allen charge. On certiorari, the Supreme Court disagreed, concluding the charge was neither coercive nor constitutionally infirm.

2. Summary of the Judgment

Holding: The supplemental instructions were not coercive; Bracken’s convictions are reinstated.
New Rule: Louisiana courts may deliver a modified Allen charge substantially similar to the Fifth Circuit’s Pattern Jury Instruction §1.53, provided it is non-coercive under a totality-of-the-circumstances test.
Precedent Overruled: State v. Nicholson (1975) is expressly abrogated.
Disposition: Court of appeal judgment reversed; matter remanded for consideration of remaining issues.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

Allen v. United States, 164 U.S. 492 (1896)
Origin of the Allen charge. Approved supplemental instructions urging jurors in the minority to re-examine their views but emphasized no juror should surrender honest conviction. The Bracken Court affirms Allen’s continued constitutional validity.
State v. Nicholson, 315 So.2d 639 (La. 1975)
A split 4-3 Louisiana decision that banned Allen charges statewide without anchoring the ban in either state or federal constitutional text. The Bracken Court characterizes Nicholson as an “outlier,” grounded in policy rather than law, and formally overrules it.
Lowenfield v. Phelps, 484 U.S. 231 (1988) & Jones v. United States, 527 U.S. 373 (1999)
U.S. Supreme Court cases affirming the constitutional permissibility of non-coercive Allen-type instructions. Cited to rebut any due-process challenge.
Fifth Circuit Cases: United States v. Winters, 105 F.3d 200 (5th Cir. 1997); United States v. Andaverde-Tinoco, 741 F.3d 509 (5th Cir. 2013)

Provide the two-part test (semantic deviation + circumstances) for assessing coercion and recognize trial-court discretion. Adopted by the Louisiana Court as the governing analytical framework.

3.2 The Court’s Legal Reasoning

The majority, speaking per curiam, conducted a totality-of-the-circumstances analysis and found that:

The trial judge explicitly acknowledged that a hung jury was permissible and stated willingness to accept one, mitigating any coercive effect.
The judge’s language encouraged mutual consideration, not capitulation of the minority, and did not single out holdout jurors.
Timing and duration of deliberations (roughly four hours total with supplemental charge given after only two hours) did not unduly pressure jurors.

Rejecting the First Circuit’s reliance on Nicholson, the Court emphasized that almost every jurisdiction now permits some form of Allen charge, and that due-process concerns are safeguarded by evaluating potential coercion rather than imposing a categorical ban.

Additionally, Chief Justice Weimer’s concurrence stressed an independent procedural bar: Bracken’s failure to make a contemporaneous objection to the supplemental instruction, reinforcing that future litigants must preserve such claims at trial.

3.3 Impact on Louisiana Law and Future Litigation

Uniformity with Federal Practice: State and federal courts sitting in Louisiana will now operate under analogous standards, reducing confusion during joint or parallel prosecutions.
Jury Efficiency: Trial judges regain a tool to avoid mistrials, potentially lowering retrial costs, witness fatigue, and docket congestion.
Litigation Strategy: Defense counsel must now routinely evaluate whether to request or object to a modified Allen charge. Failure to contemporaneously object will likely forfeit the issue on appeal, per Weimer, C.J.
Appellate Review: Courts will review challenges under the “two-pronged” Fifth Circuit test. The focus shifts from categorical prohibition to nuanced coercion analysis, generating new jurisprudence on what language or circumstances cross the line.
Retroactivity Questions: Although Bracken is prospective in procedural application, defendants with cases on direct review may invoke the new standard. Collateral attacks (post-conviction) are less certain because the decision articulates a new procedural allowance, not a substantive right.

4. Complex Concepts Simplified

Allen Charge: A supplemental instruction given to a deadlocked jury encouraging it to continue deliberations and attempt to reach a unanimous verdict while respecting each juror’s conscientious judgment.
Hung Jury / Mistrial: When jurors cannot reach unanimity, the judge declares a mistrial, and the prosecution may retry the case before a new jury.
Contemporaneous Objection Rule (La. C.Cr.P. art. 841): To preserve an issue for appeal, counsel must object at the time the alleged error occurs; silence generally waives the claim.
Totality-of-the-Circumstances Test: Courts examine the entire context—language used, timing, jury questions, length of deliberations—to determine whether an instruction improperly pressured jurors.
Abrogation vs. Overruling: “Abrogation” formally nullifies a prior precedent, indicating it is no longer good law; “overruling” usually denotes the same result but may carry stronger repudiation of reasoning. The Court here uses “abrogate.”

5. Conclusion

State v. Bracken realigns Louisiana with mainstream American criminal procedure by resurrecting the Allen charge under a modern, safeguards-laden framework. The decision clarifies that:

Non-coercive, modified Allen charges are permissible and constitutional in Louisiana.
The analytical lens is a flexible totality-of-circumstances inquiry, not a rigid ban.
Defense counsel must timely object to preserve Allen-charge issues for appellate review.

Beyond reinstating Bracken’s conviction, the ruling curbs mistrials, harmonizes state and federal practice, and punctuates the Court’s willingness to revisit and retire outdated precedents. Trial judges now possess clear authority—and a vetted template—to guide juries toward verdicts while respecting the independence of each juror’s conscience.