The sole issue before *21this court is whether the supplemental jury instruction given to the jury on July 31,1981 was coercive in the sense that it pressured members of the jury who were in the minority to abandon their positions. The essential question becomes whether the supplemental instruction given to the jury by the trial judge, known as the Allen charge, is allowed in Ohio.
The Allen charge or “dynamite” charge, as it is also known, arises from Allen v. United States (1896), 164 U.S. 492. In Allen, the United States Supreme Court set forth a summary of the supplemental instruction given by the trial court:
“* * * [Although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of his fellows, yet they should examine the question submitted with candor and with a proper regard and deference to the opinions of each other; that it was their duty to decide the case if they could conscientiously do so; that they should listen, with a disposition to be convinced, to each other’s arguments; that, if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, upon the other hand, the majority was for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority. * * *”
Allen, supra, at 501.
This is, in essence, what the supplemental jury instruction in the case before us stated. In fact, the complete language of the supplemental instruction given by the judge in Allen is nearly, though not exactly, the same as the language of the supplemental instruction given in this case.3
*22Although the trial judge gave a supplemental charge to the jury that substantially conformed to the traditional Alim charge, it is clear that Ohio has neither adopted nor rejected the Allen charge as a proper supplemental instruction. As we stated in State v. Maupin (1975), 42 Ohio St. 2d 473, 484, 71 O.O. 2d 485, 491, 330 N.E. 2d 708, 715, “* * * the original Alim charge has never been a part of Ohio jurisprudence.” We now directly meet the issue and find that the trial judge’s supplemental instruction was improper.
The Allen charge has long been the subject of criticism from legal scholars.4 The brunt of this criticism is directed at the potentially coercive impact the language of the Allen charge can have on a jury. The criticism centers on the effect of language advising the jury that a decision must be reached, thereby depriving either the state or the defendant of the possibility of a hung jury and a mistrial. In addition, and of particular importance to this court, is the criticism that the Allen charge is unduly coercive to members of the jury in the minority because it, in effect, orders those members to reevaluate their position in light of the fact that fellow jurors are unswayed, but does not require jurors in the majority to undertake a corresponding reevaluation. The effect of this charge is to place the authority of the trial judge behind the position of the majority. This, potentially, creates a force that few dissenting jurors can resist. It subtly changes the requirement that the jury verdict be unanimous to one more closely resembling majority rule.
The criticism of the Allen charge has not fallen on deaf ears. Many jurisdictions have either modified the Allen charge or abandoned it entirely because, as the state of Arizona concluded in abandoning Allen, in State v. Thomas (1959), 86 Ariz. 161, 166, 342 P. 2d 197, 200, “* * * the evils far outweigh the benefits * * *” of continuing its use. Other jurisdictions abandoning or modifying the Allen charge are the District of Columbia in Winters v. United States (D.C. App. 1974), 317 A. 2d 530, Colorado in Taylor v. People (1971), 176 Colo. 316, 490 P. 2d 292, and California in People v. Gainer (1977), 19 Cal. 3d 835, 139 Cal. Rptr. 861, 566 P. 2d 997.5
*23In addition to the foregoing states that have acted to abandon or modify the Allen charge, several federal courts have taken the same steps. Using supervisory power over courts within their circuits, federal courts of appeals have prohibited use of the Allen charge, to the extent that it tends to coerce jurors in the minority to defer to those in the majority, in United States v. Silvern (C.A.7, 1973), 484 F. 2d 879, United States v. Thomas (C.A.D.C. 1971), 449 F. 2d 1177, and United States v. Fioravanti (C.A.3, 1969), 412 F. 2d 407. Other circuits have limited the use of Allen charges. See United States v. Scott (C.A.6, 1977), 547 F. 2d 334, and United States v. Angiulo (C.A.1, 1973), 485 F. 2d 37.
In short, we firmly position ourselves with those jurisdictions that have abandoned the traditional Allen charge.6 Our reasoning today echoes the criticism of the Allen charge voiced by this court in Maupin, supra, at 483, 71 O.O. 2d at 490, 330 N.E. 2d at 715, where we stated:
“* * * The principle [sic] and most frequent reason advanced [for rejecting the Allen charge] is that it lacks balance; that the thrust of the Alien instruction is directed to the minority jurors only and is potentially coercive upon them to agree with those jurors constituting the majority.” (Citations omitted.)
Accordingly, since we find that the use of the Allen charge was improper, we agree with the court of appeals that failure by appellee’s former counsel to raise this error on direct appeal, for whatever reason, constituted ineffective assistance of counsel, in violation of appellee’s rights as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, and Section 10, Article I of the Ohio Constitution. Certainly the facts of this case, where only one hour after the Allen charge was given, a unanimous verdict was reached when nearly two and one-half days of deliberation had failed to produce agreement, raise at least the inference of coercion affecting appellee’s substantial right to a fair and impartial jury. “The test in determining if the accused had effective retained counsel is whether the accused, under all the circumstances, including the fact that he had retained counsel, had a fair trial and substantial justice was done.” State v. Hester (1976), 45 Ohio St. 2d 71, 74 O.O. 2d 156, 341 N.E. 2d 304, paragraph four of the syllabus. We agree with the court of appeals that substantial justice was not accorded to the appellee herein and that his case should be remanded to the trial court for a new trial.
Though we have determined that the use of the traditional Allen charge is improper, our duty is not yet complete. We would be remiss in our responsibility of supervising lower courts if we did not provide a supplemental instruction that, in our opinion, avoids the pitfalls of the traditional Allen charge.
In formulating such an instruction, we are cognizant of several conflicting considerations. On one hand, a supplemental instruction must not be coercive by stressing that the jury must *24reach a verdict, a clear misstatement of law.7 On the other hand, the instruction must allow the trial judge to remind the jury of the reason a jury is assembled, namely, to reach a unanimous decision if each juror can conscientiously agree to a verdict.
Finally, and most significant to our decision, the supplemental instruction must be balanced and neutral. It cannot, like Allen, single out jurors in the minority and urge them to reconsider their position. To be balanced, it must urge jurors in the majority to do the same.
Several approaches have been taken by jurisdictions in moving away from the traditional Allen charge. The most popular approach has been to adopt the standard proposed in the American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Trial by Jury (1968) 145-146, Standard 5.4. First proposed in 1968, the most recent version of the ABA standard is found in 3 American Bar Association Standards for Criminal Justice (2 Ed. 1986) 15-133. The ABA standard r63rds'
“Standard 15-4.4. Length of deliberations; deadlocked jury
“(a) Before the jury retires for deliberation, the court may give an instruction which informs the jury:
“(i) that in order to return a verdict, each juror must agree thereto[;]
“(ii) that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;
“(iii) that each juror must decide the case for himself or herself but only after an impartial consideration of the evidence with the other jurors;
“(iv) that in the course of deliberations, a juror should not hesitate to reexamine his or her own views and change an opinion if the juror is convinced it is erroneous; and
“(v) that no juror should surrender his or her honest conviction as to the weight or effect of the evidence solely because of the opinion of the other jurors, or for the mere purpose of returning a verdict.
‘ ‘(b) If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in paragraph (a). The court shall not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.
“(c) The jury may be discharged without having agreed upon a verdict if it appears that there is no reasonable probability of agreement.”
The ABA also recommends, as complying with this standard, Instruction 8.11 found in Mathes, Jury Instructions and Forms for Federal Criminal Cases (1961), 27 F.R.D. 39, 97-98. See 3 American Bar Association Standards for Criminal Justice (2 Ed. 1986) 15-134. The recommended instruction reads:
“The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous.
“It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, *25if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.
“You are not partisans. You are judges — judges of the facts. Your sole interest is to ascertain the truth from the evidence in the case.”
A large number of states have abandoned the Allen charge by adopting the ABA standard. From California, in People v. Gainer, supra, to New Jersey, in State v. Czachor (1980), 82 N.J. 392, 413 A. 2d 593, states are disapproving of the Allen charge due to its coercive potential.8
While we likewise disapprove of the traditional Allen charge, we do not believe the ABA standard is the answer. Though we would not disapprove of its use, we believe a standard that more emphatically encourages the jury to reach a decision, if they can conscientiously do so, is preferable.
In searching for the proper balance in a supplemental instruction, we agree with United States v. Johnson (C.A.D.C. 1970), 432 F. 2d 626, 633, that the ABA standard is in reality a modified Allen charge. The major area of difference between the ABA standard and the traditional Allen charge is that the ABA standard does not require jurors in the minority to reconsider their opinions out of deference owed to the majority. We agree that jurors in the minority should not be singled out as being required to rethink their position; to our mind this is the most objectionable aspect of the traditional A Men charge. We search now for a “modified” Allen charge that eliminates this aspect while still encouraging a verdict, if a verdict can be conscientiously reached.
In promulgating a supplemental instruction to be used by this state’s trial courts in situations where it is appropriate, we are mindful of our two stated goals. It must encourage a verdict where one can conscientiously be reached. In addition, the instruction must be balanced, asking all jurors to reconsider their opinions in light of the fact that others do not agree. This even-handed treatment of all jurors would stand in contrast to the traditional Allen charge, as we noted in Maupin, supra, at 484, 71 O.O. 2d at 491, 330 N.E. 2d at 715.
Toward this end we propose a supplemental instruction that uses portions of the Allen charge language while ratifying the principle of neutrality contained in the ABA standard. In place of the traditional Allen charge, we approve the following supplemental instruction:
“The principal mode, provided by our Constitution and laws, for deciding questions of fact in criminal cases, is by jury verdict. In a large proportion of cases, absolute certainty cannot be attained or expected. Although the verdict must reflect the verdict of each individual juror and not mere acquiescence in the conclusion of your fellows, each question submitted to you should be examined with proper regard and deference to the opinions of others. You should consider it desirable that the case be decided. You are selected in the same manner, and from the same source, as any future jury would be. There is no reason to believe the case will ever be submitted to a jury more capable, impartial, or in*26telligent than this one. Likewise, there is no reason to believe that more or clearer evidence will be produced by either side. It is your duty to decide the case, if you can conscientiously do so. You should listen to one another’s arguments with a disposition to be persuaded. Do not hesitate to reexamine your views and change your position if you are convinced it is erroneous. If there is disagreement, all jurors should reexamine their positions, given that a unanimous verdict has not been reached. Jurors for acquittal should consider whether their doubt is reasonable, considering that it is not shared by others, equally honest, who have heard the same evidence, with the same desire to arrive at the truth, and under the same oath. Likewise, jurors for conviction should ask themselves whether they might not reasonably doubt the correctness of a judgment not concurred in by all other jurors.”
It is of interesting historical note to consider that in Allen, supra, at 501, the United States Supreme Court affirmed a supplemental instruction that was “* * * taken literally from a charge in a criminal case which was approved of by the Supreme Court of Massachusetts in Commonwealth v. Tuey [(1851), 62 Mass. 1], 8 Cush. 1 * * *." The Massachusetts court subsequently reconsidered the position it had taken in Tuey and, in Commonwealth v. Rodriquez (1973), 364 Mass. 87, 300 N.E. 2d 192, adopted a modified supplemental instruction that is similar to the instruction we adopt today.
In conclusion, we hold that the traditional Allen charge is not a proper supplemental charge to be given to juries in Ohio which have become deadlocked on the question of conviction or acquittal. Further, we reiterate that the supplemental instruction given by the trial judge in this case was improper and that appellee was denied effective assistance of counsel when the issue was not raised on appeal. Therefore, we affirm the judgment of the court of appeals granting post-conviction relief and remand this case for a new trial. Our judgment shall have only prospective effect.
Judgment affirmed and cause remanded.
Moyer, C.J., Sweeney, Wright and H. Brown, JJ., concur. Holmes, J., dissents. Re snick, J., dissents with opinion.The pertinent text of the supplemental instruction in Allen, supra, reads as follows:
“ ‘The only mode provided by our Constitution and laws for deciding questions of fact in criminal cases is by the verdict of a jury. In a large proportion of cases, and perhaps, strictly speaking, in all cases, absolute certainty can not be attained or expected. Although the verdict to which a juror agrees must, of course, be his own verdict, the result of his own convictions, and not a mere acqui[e]s[c]ence in the conclusion of his fellows, yet, in order to bring twelve minds to a unanimous result, you must examine the questions submitted to you with candor, and with a proper regard and deference to the opinions of each other. You should consider that the case must, at some time, be decided; that you are selected in the same manner, and from the same source from which any future jury must be; and there is no reason to suppose that the case will ever be submitted to twelve men more intelligent, more impartial, or more competent to decide it; or that more or clearer evidence will be produced on the one side or the other. And with this view it is your duty to decide the case if you can conscientiously do so. In order to make a decision more practicable the law imposes the burden of proof on one party or the other in all cases.’ In the present case the burden of proof is upon the Government of the United States. ‘But in conferring together you ought to pay proper respect to each other’s opinions, and listen, with a disposition to be convinced, to each other’s arguments. And, on the one hand, if much the larger number of your panel are for a conviction, a dissenting juror should consider whether a doubt in his own mind is a reasonable one which makes no impression upon the the [sic] minds of so many men, equally honest, equally intelligent with himself, and who have heard the same evidence with the same attention, with an equal desire to arrive at the truth, and under the sanction of the same oath. And, on the other hand, if a majority are for acquittal, the minority ought seriously to ask themselves whether they may not reasonably, and ought not to, *22doubt the correctness of a judgment which is not concurred in by most of those with whom they are associated, and distrust the weight or sufficiency of that evidence which fails to carry conviction to the minds of their fellows.’ ” Brief for United States at 29, Allen v. United States, reprinted in Briefs and Records of the United States Supreme Court, Part V.
This charge to the jury was omitted in printing the transcript of record of the Allen case. See Briefs and Records of the United States Supreme Court, Part V, Allen v. United States, Record at 127; Brief for United States at 2. However, the charge was reprinted in the brief of the United States, filed with the Clerk of the Supreme Court of the United States on October 21, 1896. See Brief for United States, supra, at 29.
See Note, Deadlocked Juries and Dynamite: A Critical Look at the “Allen Charge” (1964), 31 U. Chi. L. Rev. 386; Hennessey, The Allen Charge: Dead Law a Long Time Dying (1972), 6 U.S.F.L. Rev. 326; Note, The Allen Charge: Recurring Problems and Recent Developments (1972), 47 N.Y.U.L. Rev. 296, 316-317; Marcus, The Allen Instruction in Criminal Cases: Is the Dynamite Charge About to be Permanently Defused? (1978), 43 Mo. L. Rev. 613; O’Sullivan, Deadlocked Juries and the Allen Charge (1985), 37 Me. L. Rev. 167.
For a more complete list of jurisdictions that have abandoned or modified the *23Allen charge, see Annotation (1980), 97 A.L.R. 3d 96.
We are not unmindful that the United States Supreme Court still views Allen as good law. “The continuing validity of this Court’s observations in Allen are beyond dispute * * Lowenfield v. Phelps (1988), 484 U.S. __, __, 98 L. Ed. 2d 568, 577, 108 S. Ct. 546, 551. However, close scrutiny of the charge given in Lowenfield reveals that it was not the traditional Allen charge. The charge did not speak specifically to minority jurors. Id. at _, 98 L. Ed. 2d at 575, 108 S. Ct. at 549.
The trial judge in the case at bar went even further than the traditional Alim charge. When giving the second supplemental instruction, the judge said, “If you should fail to agree upon a verdict, the case is left open and undecided. Like all cases, this case must be disposed of sometime. * *
See Annotation (1980), 97 A.L.R. 3d 96, for a more complete listing of states.