We granted certiorari in this case to consider whether a portion of this State’s pattern Allen charge is accurate and should continue to be used.1 For the reasons that follow, we conclude that the portion of the charge in question is inaccurate and should no longer be given by trial courts. However, we also conclude that, considering the Allen charge as a whole, it was not impermissibly coercive. Accordingly, we affirm Burchette’s conviction. Following the trial court’s charge, the jury began its deliberations of Burchette’s case at 11:45 a.m. At 2:45 p.m., the jury sent the trial court a note that it was deadlocked. The trial court gave an Allen charge, and instructed the jury, in relevant part, that “this case must be decided by some jury selected in the same manner this jury was selected and there is no reason to think a jury better qualified than you would ever be chosen.” Burchette objected to this portion of the charge, but the trial court overruled the objection. After deliberating until 5:00 p.m., the jury returned a guilty verdict on the charge of arson, the only crime with which Burchette was charged. On appeal, Burchette contended that the trial court erred by giving the foregoing portion of the Allen charge. The Court of Appeals, however, found no error and affirmed.2 We granted certiorari to consider whether the foregoing language should continue to be included in the Allen charge. For the reasons that follow, we conclude that it should not. To begin, we note that the language in question is included in this State’s pattern charge,3 and that in several cases, this Court has held the language not to be impermissibly coercive when considered in the context of the charge as a whole.4 However, upon further reflection, we agree with the conclusion of many courts that the statement that the case “must be decided by some jury” is inaccurate.5 Because of this inaccuracy, these courts have ruled that the statement should not be included in their states’ Allen charges.6 Moreover, the statement is not included in the charge approved for deadlocked juries in the ABA Standards for Criminal Justice.7 In addition, our recognition of the statement’s inaccuracy was foreshadowed in our decision in Romine v. State .8 In that case, this Court reaffirmed the proposition that the “must-be-decided” language could not be given in the death penalty phase of murder trials because it was inaccurate. In this regard, we cited to a previous decision of this Court in which we held that the charge is inaccurate in death penalty cases because OCGA § 17-10-31 provides that if a jury cannot reach unanimity on the sentence, the trial court is required to impose a life sentence, thus meaning that no retrial is permissible.9 In Romine , however, we did not discuss § 17-10-31 in stating that the charge is inaccurate, and although we cited Legare for the proposition that the language was inaccurate, we also relied on Gainer ,10 a non-death penalty case that explains that it is not true that a criminal trial that ends with a hung jury must always be retried.11 Thus, in Romine , we recognized that the charge is inaccurate in murder cases in which only a life sentence is sought.
Because we agree with the courts that have concluded that the “must-be-decided” charge is inaccurate in non-death penalty cases,12 and because such an inaccurate charge should not be given in a criminal trial,13 we now hold that the “must-be-decided” charge should no longer be included in Allen charges in this State.
