BISTLINE, Justice, and OLIVER, Judge,
Pro Tern.
The defendant was charged with lewd conduct with a child under 16 years of age. The state moved for an order that defendant view the alleged victim’s testimony at the preliminary hearing through closed circuit television rather than being physically present in the courtroom. Following a hearing, the motion was granted. At the preliminary hearing over defendant’s objection, he was allowed only to observe the alleged victim’s testimony on closed circuit television from outside of the courtroom. His attorney was allowed to remain in the courtroom and to maintain telephone contact with defendant. Defense cross-examination of the alleged victim was allowed. The magistrate found probable cause, and defendant was bound over to the district court to stand trial.
A three-day jury trial held in May 1985, ended in a hung jury. A second trial began on September 3, 1985. Unlike the preliminary hearing, defendant was present in the courtroom when the alleged victim testified. The jury retired to deliberate at 5:15 p.m. on September 5, 1985. The district court trial was presided over by the same district judge who presided at the May trial. The judge discussed with counsel the possibility that, should jury deliberations continue late into the night, the jurors be allowed to separate at about 11 p.m. in order to retire to their homes for the night, returning the next morning to further deliberate. At 12:30 a.m. the court brought the jurors in again, and with the defendant and counsel present, the court addressed the jury as follows:
Ladies and gentlemen we will excuse you for the evening. Sometimes it is helpful for everyone to have a break and let things settle for a little while. We will allow you to recess, since I have had no objection from either the state or the defense about this procedure, until 9 o’clock tomorrow. You can resume your deliberations just by going directly into the jury room and get started again as soon as all of you are present. Please don’t discuss this with anyone at home who is not on the jury. You are free to discuss it when you have delivered your verdict. But until then please don’t discuss it with anybody except when you are in the group deliberating and we will [808]*808see if that helps. So I will excuse you for this evening and we will see you tomorrow and we will await your decision.
The jury resumed deliberations at 9 a.m. the next day. At about 10:20 a.m. the jury advised the court that it was unable to reach a verdict. The court brought the jury in and the following exchange ensued:
THE COURT: First I will poll the Foreperson.
Mrs. Edquist, do you feel if the jury were given more time you could reach . your verdict in this case?
JUROR: No.
THE COURT: Okay. Mrs. Kunter?
JUROR: No.
THE COURT: Mrs. Carlson?
JUROR: No.
THE COURT: Miss Cook?
JUROR: No.
THE COURT: Mrs. Osborn?
JUROR: No.
THE COURT: Mr. Posey?
JUROR: No.
THE COURT: Mr. Haas?
JUROR: No.
THE COURT: Mr. McGowan?
JUROR: No.
THE COURT: Okay, Miss Richardson?
JUROR: No.
THE COURT: Mr. Sam?
JUROR: No.
THE COURT: Okay, Mr. Hall?
JUROR: No.
THE COURT: Mr. Angelí?
JUROR: No.
The court then asked the counsel for both sides whether they wished to have the court give the instruction approved in the case of State v. Bailey, 94 Idaho 285, 486 P.2d 998 (1971). Counsel for the State responded that, “It is worth a try.” Defense counsel objected to any further instruction. He stated: “I certainly don’t want an instruction that might cause any juror to change its vote just to get it over with.” The court then orally addressed the jury as follows:
Well of course the State v. Bailey instruction is not — is an approved instruction. Well I think it may be in the interest of efficient judicial administration to read it to you and then to allow you to advise me after I have read it and you have returned.
The court wishes to suggest a few thoughts which you may desire to consider in your deliberations along with all the instructions previously given. In your further effort to reach a verdict in this case I would suggest that in your deliberations you examine the issues submitted with the proper regard and consideration for the opinions of each other.
Each of you should fairly and freely discuss with your fellow jurors the evidence and the decisions to be drawn therefrom and you should listen to each other’s arguments with an open mind. If, after doing so, any of you should be satisfied that a conclusion first reached by you was wrong and you should unhesitantly abandon that original opinion and render your verdict according to a final decision.
You should not hesitate to recede from a previously announced opinion or conclusion because of a sense of pride. Remember that you are not partisans or advocates but are judges. However you should not change the conclusion you have reached merely because one or more of your fellow jurors may have come to a different conclusion or merely to bring about a unanimous verdict.
Have in mind in your further deliberations that you will be making a definite contribution to efficient judicial administration if you arrive at a just and. proper verdict in this case. To this end you should make every reasonable effort to reach a verdict.
I’m going to allow you to retire and continue your deliberations and advise me what you think then. But I would like you to try at least a little bit longer to see if you can reach a decision without disturbing your individual conscience in light of the fact that I know that you have all struggled for quite awhile and I [809]*809know you have all been making a good faith effort to do so.
If you can, try. If you can’t then please advise me____
The members of the jury then retired to resume deliberations. Ninety minutes later they returned with a verdict of guilty.
The defendant’s motion for a new trial contended that the trial court erred in allowing the jury to separate over night during deliberations, and in not declaring a mistrial when the jury declared its inability to reach a verdict the next morning. The motion was denied.
I. THE USE OF CLOSED CIRCUIT TELEVISION AT THE PRELIMINARY HEARING
The initial issue raised by the defendant concerns the use of the closed circuit television at the preliminary hearing. Defendant contends that because he was denied face-to-face contact with the aHeged victim, his sixth amendment right to confront the witnesses against him was violated. Where an accused’s constitutional rights are violated at a preliminary hearing, any error will be held harmless only if the court is satisfied beyond a reasonable doubt that the violation did not affect the trial. State v. Wuthrich, 112 Idaho 360, 732 P.2d 329 (Ct.App.1986).
However, in this instance we are unable to evaluate the merits of defendant’s claim. Defendant’s notice of appeal did not specifically request that a transcript of the preliminary hearing be made part of the record on appeal. Idaho Appellate Rule 25(f) provides that “[tjranscripts of pre-trial or post-trial proceedings shall not be included in the reporter’s transcript unless specifically designated and requested.” Without a record of the preliminary hearing, we are unable to determine whether the violation of defendant’s sixth amendment guarantees, if any, was harmless beyond a reasonable doubt. Even without the testimony of the victim, sufficient independent evidence may have been presented by the state to justify a finding of probable cause. Consequently, we are unable to hold that, assuming error of constitutional dimension, the magistrate erred in holding the defendant to answer in district court.1 “We are restricted to the record before us and may not consider matters outside the record.” Parsons v. State, 113 Idaho 421, 428, 745 P.2d 300, 307 (Ct.App.1987). See also State v. Porath, 113 Idaho 974, 751 P.2d 670 (Ct.App.1988); 4A C.J.S. Appeal and Error § 702, p. 530.
II. JURY SEPARATION
Appellant next asserts that although no objection was made thereto, the trial court erred in allowing the jury to separate during the time of their deliberations.
As above noted, this case had been tried once before and resulted in a deadlocked jury. In the instant case the case was sent to the jury and they had retired to deliberate at 5:15 p.m. Thereafter the court discussed informally with counsel the possibility of deliberations continuing late into the night, and a separation of the jury at approximately 11:00 p.m. so that the members of the jury could return to their homes and return to deliberate the following morning. The jury was allowed to so separate and resumed deliberation at 9 a.m. the following day.
I.C. § 19-2126 provides in pertinent part: The jury sworn to try an indictment for any offense except murder may at any time during the trial before the submission of the cause in the discretion of the court be permitted to separate or they may be kept together in charge of a proper officer____
Concededly that statute can be read to provide by negative inference that jurors in a criminal trial may not be separated after the case has been submitted to the jury. That statute, however, has been amended to allow separation of the jury during deliberations, and now provides that except in a charge of first degree murder the jury [810]*810“may at any time during the trial and after submission of the cause in the discretion of the court be permitted to separate or they may be kept together in the charge of a proper officer.” I.C. § 19-2126 as amended by [ann. 1987, ch. 145, § 1, p. 289]. As noted, no objection was made to the separation procedure, and there is no showing in the record of any prejudice which resulted from the procedure. There is no assertion of any improper contacts with the jury during such time of separation, although some effort was apparently made by defense counsel to contact the jurors following the trial. As noted by the trial court, there was no news coverage of the trial, the separation of the jury was brief and allowed only sufficient time for jurors to go home, sleep, eat breakfast and return for further deliberations.
Appellant Flint argues that it is error per se to allow jury separation during deliberations, that an objection need not be raised to preserve the issue on appeal. We are cited to no authority by this Court which supports appellant’s argument. The weight of authority in other jurisdictions is to the contrary. In State v. Williams, 39 Ohio St.2d 20, 313 N.E.2d 859 (1974), the jurors were allowed to separate after the case had been submitted to them, and the court held that the conviction would not be reversed, “where it is not shown that the defendant was thereby prevented from having a fair trial, and where the defendant did not object to the separation.” Likewise, in Jones v. People, 711 P.2d 1270 (Colo.1986), the defendant entered no objection to the failure to sequester the jury in a first degree murder case, and the court stated:
A defendant should not be permitted to remain silent at trial when the jury is allowed to separate and then object to separation for the first time in his motion for a new trial____ [I]n the absence of a timely objection and the failure to sequester the jury in a capital case it is not reversible error unless the defendant establishes prejudice arising out of the separation of the jury.
711 P.2d at 1280.
Assuming without deciding, that the trial court erred in allowing the jury to separate during the deliberations, we hold the error, if any, was not preserved for appeal, and has not been shown to have resulted in any prejudice or that the proceedings were in any way tainted. See State v. Sharp, 101 Idaho 498, 616 P.2d 1034 (1980); State v. Haggard, 94 Idaho 249, 486 P.2d 260 (1971); State v. Watson, 99 Idaho 694, 587 P.2d 835 (1978); State v. Ellis, 99 Idaho 606, 586 P.2d 1050 (1978).
III. THE “DYNAMITE” INSTRUCTION
Defendant’s next argument concerns the “dynamite instruction,” set forth above, which was submitted to the deadlocked jury at the second trial. He contends that when the polling of the individual jurors disclosed a second hung jury, that jury should have been discharged, and the trial court acted improperly in proceeding to influence the jury to come to a verdict. We agree.
Just this last year in another case from the Fourth Judicial District, State v. Clay, 112 Idaho 261, 731 P.2d 804 (Ct.App.1987), the Court of Appeals stated that “the constitutional guaranty of due process demands that an accused person receive a fair and impartial trial. This guaranty is violated if jury deliberations are tainted by undue pressure.” 112 Idaho at 263, 731 P.2d at 806.2 The Court continued:
The opportunity to exert such pressure is presented when a jury, after long deliberation, reports a deadlock. During the nineteenth century, a deadlocked jury was regarded by some courts as an evil to be combatted by psychological or even physical coercion. Id. See also Note, [811]*811Deadlocked Juries and Dynamite: A Critical Look at the “Allen” Charge, 31 U.CHI.L.REV. 386 (1964). In this historical milieu, the United States Supreme Court approved the use of an instruction that directed a deadlocked jury to continue deliberating and exhorted jurors holding a minority view to reconsider their position. Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). This instruction, and others like it, eventually earned the appellation “dynamite” because they proved to be effective in “blasting” verdicts out of potentially hung juries. Id.
The past two decades have brought greater sensitivity to the problem of jury deadlock. Declaring that individual jurors must not be pressured to abandon their honest beliefs, many federal and state courts have limited or abolished the Allen instruction. Id. See, e.g. United States v. Thomas, 449 F.2d 1177 (D.C.Cir.1971); United States v. Brown, 411 F.2d 930 (7th Cir.1969), cert. denied, 396 U.S. 1017, 90 S.Ct. 578, 24 L.Ed.2d 508 (1970); Fields v. State, 487 P.2d 831 (Alaska 1971); People v. Gainer, 19 Cal.3d 835, 139 Cal.Rptr. 861, 566 P.2d 997 (1977); State v. Nicholson, 315 So.2d 639 (La.1975); State v. White, 285 A.2d 832 (Me.1972); State v. Martin, 297 Minn. 359, 211 N.W.2d 765 (1973); State v. Marsh, 260 Or. 416, 490 P.2d 491 (1971), cert. denied sub nom, 406 U.S. 974, 92 S.Ct. 2420, 32 L.Ed.2d 674 (1972).
112 Idaho at 263, 731 P.2d at 806.
However, in State v. Bailey, 94 Idaho 285, 486 P.2d 998 (1971), this Court approved a dynamite instruction virtually identical to the one given to the deadlocked jury in the instant case.3 94 Idaho at 292, 486 P.2d at 1005. The Court warned, however, that in order to avoid undue emphasis, a dynamite instruction, if given at all, must be given together with all of the other instructions, and not as a separate point of law presented after considerable deliberation had already taken place. 94 Idaho at 292, 486 P.2d at 1005. Likewise, the Idaho Trial Judges Manual, § 7-63, provides that dynamite instructions be given with all other instructions at the outset of deliberations. Such was not done in the case at bar, which seems unusual and particularly unacceptable where a first trial had already taken place and that jury was deadlocked.
In other cases, the giving of the Bailey dynamite instruction has not been held grounds for reversal. See, e.g., State v. Brown, 94 Idaho 352, 487 P.2d 946 (1971); State v. Byerly, 109 Idaho 242, 706 P.2d 1353 (Ct.App.1985); State v. Silcox, 103 Idaho 483, 650 P.2d 625 (1982). Unlike Silcox, however, defense counsel here did object to the dynamite instruction. Moreover, unlike Idaho Jury Instruction 142,4 [812]*812the instruction which was utilized here added a new concern that the jurors would “make a definite contribution to efficient judicial administration” if they were to agree to a verdict. The Court of Appeals noted in its Clay opinion as to similar language: “[although this reference may seem innocuous,” the implicit reference to cost and inconveniences gives the jury the inescapable message that criminal justice would not be served if they failed to return a verdict. Clay, supra, 112 Idaho 261, 265 n. 2, 731 P.2d 804, 808 n. 2 (1987).
Our review of applicable case law, sound policy considerations, and personal experiences from the perspective of both bench and bar, convinces us that the future use of dynamite instructions is not consistent with the orderly administration - of criminal justice. Accordingly, we overrule State v. Bailey, and its progeny. Today’s holding is consistent with the views of the Arizona Supreme Court:
When and wherever [a dynamite instruction’s] use is called into question it must stand or fall upon the facts and circumstances of each particular case____ No rule of thumb can circumscribe definite bounds of when and where, or under what circumstances it should be given or refused____ We are convinced that the evils far outweigh the benefits, and decree that its use shall no longer be tolerated and approved by this Court.
State v. Thomas, 86 Ariz. 161, 166, 342 P.2d 197, 200 (1959). See also United States v. Fioravanti, 412 F.2d 407 (3d Cir.1969). Similarly, the State of Washington, in order to eliminate the possibility of prejudice attendant upon the giving of dynamite instructions, adopted a rule which precludes the trial court from instructing a deadlocked jury in such a way to suggest to it the need for agreement, the consequences of not reaching an agreement, or the length of time a jury will be required to deliberate. See Washington Criminal Rule 6.15(f)(2) (cited in State v. Watkins, 660 P.2d 1117, 1121 (Wash.1983)).
Only a blanket prohibition against dynamite instructions will sufficiently protect the deadlocked jurors from coercion. A syllogism used by Justice Udall describes the pressure exerted on jurors when such instructions are given:
The majority think he is guilty; the Court thinks I ought to agree with the majority so the Court must think he is guilty. While the Court did tell me not to surrender my conscientious convictions, he told me to doubt seriously the correctness of my own judgment. The Court was talking directly to me, since I am the one who is keeping everyone from going home. So I will just have to change my vote.
State v. Voeckell, 69 Ariz. 145, 210 P.2d 972, 980 (1949) (dissenting opinion) (emphasis in original).
Perhaps the greatest attribute of the American system of government, including the judicial department, is the freedom to hold different points of view. Attorney Carl Burke said the same recently in his remarks presented at the swearing-in of Justice Byron Johnson. Dynamite instructions belittle this attribute. As one commentator forcefully argues, the hung jury is not a jurisprudential failure, but rather is a commendation on the fair and evenhanded administration of justice:
[S]ome cases will inevitably present close factual questions on which twelve people cannot agree. Where such is the [813]*813case the unanimous verdict requirement and the ultimate acceptance of the jury’s failure to reach accord protect the accused from conviction on the basis of evidence so close as to permit ... real and reasonable differences of opinion. In our system this is a desirable result. Despite the fact that each trial which ends in a hung jury may appear to be an exercise in futility and may create understandable judicial frustration, it should be remembered that a hung jury is only undesirable where the hanging jurors simply refuse to join in conscientious collective deliberations in an honest effort to reach a verdict.
Comment, Due Process, Judicial Economy and the Hung Jury: A Reexamination of the Allen Charge, 53 VA.L.REV. 123, 145-46 (1967) (quoted in Clay, supra, 112 Idaho at 263, 731 P.2d at 807).
Proscribing the use of dynamite instructions does not restrict a trial court, as happened here, from polling the individual jurors, and depending on the responses and appearances, then when appropriate guiding them toward another appropriate period of deliberation. This assumes, of course, that the jurors do not declare themselves deadlocked.
We reverse the district court’s order denying defendant’s motion for a mistrial and remand for further proceedings consistent with this opinion.
HUNTLEY, J. concurs.
Oliver, J., Pro Tem, retired Sixth Judicial District Judge, sitting at the designation of the Court.