If the jury informs the court it has reached an impasse, the court, after conferring with counsel, may invite the jurors to list in writing the divisive issues, which if addressed further in the courtroom might bring about a verdict. After receiving the jurors' written response, the judge, after conferring with counsel, may direct further proceedings to occur as appropriate.
Rule 6.9 is patterned after Rule 39(h), Ariz.R.Civ.P., and Rule 22.4, Ariz.R.Crim.P. When a jury reports it is at an impasse, the rule allows a judge to offer assistance in hopes of improving the chances of a verdict. A judge must be careful not to be coercive, suggestive, or unduly intrusive. The comments to the Arizona rules suggest the judge's response to the jurors' report of impasse take the following form:
"This instruction is offered to help your deliberations, not to force you to reach a verdict.
You may wish to identify areas of agreement and areas of disagreement. You may then wish to discuss the law and the evidence as they relate to areas of disagreement.
If you still have disagreement, you may wish to identify for the court and counsel which issues or questions of law or fact you would like counsel or the court to assist you with. If you elect this option, please list in writing the issues where further assistance might help bring about a verdict.
I do not wish or intend to force a verdict. We are merely trying to be responsive to your apparent need for help. If it is reasonably probable that you could reach a verdict as a result of this procedure, it would be wise to give it a try."
Some of the ways a judge may give assistance include: giving additional instructions, clarifying earlier instructions, directing the attorneys to make additional closing argument, reopening the evidence for limited purposes, or a combination of these measures. The court may decide it is not legally or practically possible to respond to the jury's concerns.