A hung jury occurs when jurors cannot reach the agreement required to return a verdict after deliberating. It is also called a deadlocked jury.
In a criminal case requiring a unanimous verdict, even one unresolved juror can prevent the jury from convicting or acquitting the defendant on a particular charge. But a deadlock does not automatically end the trial. The judge may direct the jury to continue deliberating, provide additional instructions, accept a partial verdict when permitted, or eventually declare a mistrial.
If a mistrial is declared because the jury cannot agree, the defendant is not automatically acquitted. Prosecutors can generally retry unresolved charges before a new jury because a hung jury ordinarily does not trigger the Double Jeopardy Clause’s prohibition against another trial.
How Does a Jury Become Hung?
A jury becomes hung when jurors cannot reach the level of agreement required for a valid verdict after deliberating the case.
NOTE: A disagreement during deliberations does not automatically make a jury hung. Jurors are generally expected to continue:
- discussing the evidence,
- reviewing the court’s instructions, and
- considering one another’s views before the judge concludes that further deliberations are unlikely to produce a verdict.
For example, if 12 jurors are deciding a criminal charge that requires unanimity and the vote is 11–1 for guilty, the court cannot accept that vote as a guilty verdict. The judge may instruct the jury to continue deliberating in an effort to reach unanimous agreement.
If the jurors later tell the court that they remain unable to agree, the judge decides whether additional deliberations could reasonably help. When the judge determines that the deadlock cannot be resolved, the court may declare a mistrial because of a hung jury.
NOTE: A hung jury does not mean that the defendant has been found guilty or not guilty. It means that the jury was unable to reach the verdict required by law. When a mistrial is declared because of a hung jury, prosecutors may generally choose to retry the unresolved charges before a new jury.
What Happens When a Jury Is Hung?
When a jury reports that it cannot reach the agreement required for a verdict, the trial does not automatically end in a mistrial. The judge may first determine whether additional deliberations could resolve the disagreement. Depending on the case and jurisdiction, the jury may be instructed to continue deliberating, may return verdicts on charges it has resolved, or may ultimately be discharged if the deadlock cannot be broken.
Here is what may happen after a jury reports that it is hung.
1. The Jury Tells the Judge It Cannot Reach a Verdict
The jury typically sends a message to the judge stating that it has been unable to reach the required agreement.
That does not necessarily mean deliberations are over. A judge generally has discretion to determine whether the jury is genuinely deadlocked or whether further deliberations could still produce a verdict. Some federal appellate guidance recommends that a judge consider the jury’s own assessment of whether continued deliberations could overcome the impasse.
The court must also avoid improperly investigating how individual jurors have voted or placing pressure on jurors to change sincerely held views simply to reach a verdict.
2. The Judge May Send the Jury Back for Further Deliberations
If the judge believes additional discussion may be productive, the jurors may be directed to return to the jury room and continue deliberating.
A jury’s first report of disagreement therefore does not automatically make the trial a mistrial. Jurors may deliberate for additional hours or even days depending on the length and complexity of the trial, the issues being decided, and the circumstances of the deadlock.
There is no universal number of hours or days after which a jury must be declared hung.
3. The Judge May Give a Supplemental Deadlock Instruction
The court may also provide the jury with an additional instruction encouraging further deliberation. In federal practice, one form of this type of instruction is often referred to as an Allen charge or a deadlock instruction.
The instruction may remind jurors to:
- reconsider the evidence carefully;
- listen to and consider the views of other jurors;
- reexamine their own conclusions when appropriate; and
- continue attempting to reach a verdict without surrendering an honestly held belief merely to achieve unanimity.
The purpose is to encourage meaningful deliberation, not to force a verdict. Courts must be careful that a supplemental instruction does not become improperly coercive or pressure holdout jurors into changing their votes simply to end the case.
4. The Jury May Return a Partial Verdict
A jury can be deadlocked on part of a criminal case without being deadlocked on everything.
For example, if a defendant faces four criminal counts, jurors might unanimously agree on verdicts for three counts but remain unable to agree on the fourth.
In federal criminal cases, Federal Rule of Criminal Procedure 31(b) allows the jury to return verdicts on counts on which it has agreed even when other counts remain unresolved. The rule also permits partial verdicts in cases involving multiple defendants when the jury has reached agreement as to some defendants but not others.
The resolved counts remain subject to the verdict returned by the jury, while the deadlocked counts can be addressed separately.
5. The Court May Consider Alternatives Before Declaring a Mistrial
Before ending a federal criminal trial with a mistrial, there may be an additional procedural step.
Under Federal Rule of Criminal Procedure 26.3, the court must give the defendant and the government an opportunity to comment on whether a mistrial should be declared, state whether they consent or object, and suggest possible alternatives.
The exact procedure differs among jurisdictions, but the broader point is that a mistrial should not necessarily be treated as the automatic response to the jury’s first indication of a deadlock.
6. The Judge May Declare a Mistrial on the Unresolved Charges
If the judge ultimately determines that the jury is genuinely unable to reach the required agreement and that further deliberations are unlikely to resolve the deadlock, the court may declare a mistrial.
A mistrial caused by a hung jury ends the current trial without a verdict on the unresolved charges.
In a case involving several charges, this can also be a partial mistrial. For example, the jury may return guilty or not-guilty verdicts on some counts while the court declares a mistrial only on the counts that remain deadlocked.
Federal Rule of Criminal Procedure 31 specifically authorizes a court to declare a mistrial on counts on which the jury cannot agree.
7. The Unresolved Charges May Be Tried Again
A hung jury is not an acquittal.
When a mistrial is properly declared because the jury genuinely cannot reach a verdict, the prosecution may generally retry the defendant on the unresolved charges. The U.S. Supreme Court has held that retrial following a genuine hung jury ordinarily does not violate the Double Jeopardy Clause because the jury’s inability to reach a verdict does not terminate jeopardy in the same way an acquittal does.
For example, if a jury acquits a defendant on one count but is deadlocked on two others, the acquitted count ordinarily cannot be retried, while the unresolved counts may potentially be prosecuted again.
Whether prosecutors actually pursue another trial can depend on the circumstances of the case. They may proceed with a retrial, reconsider the charges, seek another resolution where legally appropriate, or decline to prosecute the unresolved charges further.
State procedures and rules governing hung juries can differ, so the precise steps after a deadlock depend on the jurisdiction and the particular case.
Does a Jury Have to Be Unanimous?
In most U.S. criminal trials, yes. A jury must reach a unanimous verdict to convict or acquit a defendant. However, unanimity rules can differ in civil cases and may depend on whether the case is in federal or state court.
In a federal criminal trial, Federal Rule of Criminal Procedure 31 requires the jury’s verdict to be unanimous. This means every juror must agree on the verdict for a particular charge before the court can accept it.
The same basic rule applies to state prosecutions for serious criminal offenses. In Ramos v. Louisiana, the U.S. Supreme Court held that the Sixth Amendment requires a unanimous jury verdict to convict a defendant of a serious criminal offense in state court.
If even one juror disagrees in a case requiring unanimity, the jury cannot return a valid verdict on that charge unless the disagreement is resolved through further deliberations.
The rule is different in some civil cases.
| Type of Proceeding | Is a Unanimous Jury Verdict Required? |
|---|---|
| Federal criminal trial | Yes |
| State criminal prosecution for a serious offense | Yes to convict |
| Federal civil jury trial | Generally yes, unless the parties stipulate to a nonunanimous verdict |
| State civil case | Depends on the state’s laws and procedural rules |
Therefore, whether a jury must be unanimous depends on the type of case and the jurisdiction. Unanimity is generally required in criminal prosecutions, while civil jury rules may allow a verdict with less than complete agreement in some jurisdictions.
This distinction is particularly important in a hung-jury situation. If a case requires unanimity and the jurors remain divided, the court cannot simply accept the majority’s position as the verdict.
What Is a Mistrial in Court?
A mistrial occurs when a judge ends a trial before it produces a valid final resolution on some or all of the charges or claims being tried. Depending on the circumstances, the case may later be tried again.
A hung jury is one possible reason for a mistrial, but a hung jury and a mistrial are not the same thing. A hung jury describes the jury’s inability to reach the agreement required for a verdict. A mistrial is the court’s decision to terminate the affected trial proceedings.
| Hung Jury | Mistrial |
|---|---|
| Means jurors cannot reach the agreement required for a verdict. | Means the judge has terminated the current trial or part of it. |
| Does not automatically end the trial. | Ends the affected trial proceedings. |
| May result in additional jury deliberations. | Occurs only after the court declares a mistrial. |
| Can eventually lead to a mistrial. | Can occur for reasons other than jury deadlock. |
For example, if jurors tell the judge that they cannot agree, the judge may first direct them to continue deliberating. The case becomes a mistrial only if the judge ultimately determines that the deadlock cannot reasonably be resolved and formally declares a mistrial.
A mistrial can also occur for reasons unrelated to a hung jury, such as:
- serious juror misconduct;
- exposure of jurors to highly prejudicial information;
- significant procedural or evidentiary problems;
- circumstances that make it impossible to continue the trial fairly; or
- certain other events that prevent the proceeding from reaching a lawful verdict.
What Happens After a Mistrial Is Caused by a Hung Jury?
When a mistrial results from a genuinely deadlocked jury, the unresolved criminal charge generally remains pending.
The prosecution may then decide to:
- retry the defendant before a new jury;
- reconsider which charges to pursue;
- negotiate another lawful resolution; or
- dismiss an unresolved charge.
A second trial is not automatic simply because the law permits one. Prosecutors still decide whether another prosecution should proceed, subject to applicable court orders and state or federal law.
Can a Mistrial Be Retried?
Yes. A criminal case can generally be retried when the mistrial resulted from a hung jury.
Federal Rule of Criminal Procedure 31 states that when a jury cannot agree on one or more counts, a court may declare a mistrial on those counts and the government may retry the defendant on them.
The U.S. Supreme Court reached the same constitutional conclusion in Richardson v. United States. The Court held that neither a jury’s failure to reach a verdict nor the resulting mistrial terminates jeopardy in the same way that an acquittal does.
That is why retrial after a hung jury generally does not violate double jeopardy.
Brownstone Law explains the broader rule and its exceptions in its guide to double jeopardy and when a person can be tried for the same crime twice.
However, mistrials arising from other circumstances can raise different double-jeopardy questions. The reason for the mistrial and who requested it can matter.
If a criminal case proceeds to a conviction after a retrial, Brownstone Law’s criminal appeal lawyers can review the trial record and determine whether appealable errors or other grounds for appellate review may exist.
What Happens if a Jury Is Hung Twice?
If a second jury also fails to reach a verdict, prosecutors may still be legally permitted to try the case again.
There is no general constitutional rule stating that a case must be dismissed after two hung juries.
Each hung jury can result in another mistrial without producing an acquittal. As a result, another prosecution may remain legally possible.
In practice, however, repeated deadlocks may cause prosecutors to reassess:
- the strength of the evidence;
- whether witnesses remain available;
- why multiple juries have been unable to agree;
- whether different charges are appropriate;
- the resources required for another trial; and
- whether another lawful resolution is preferable.
The fact that a third trial may be constitutionally permitted therefore does not mean that prosecutors will always pursue one.
Conclusion
A hung jury occurs when jurors cannot reach the agreement required for a valid verdict. It does not automatically mean an acquittal, dismissal, or immediate mistrial. Depending on the circumstances, the court may order further deliberations, accept a partial verdict, or declare a mistrial, after which unresolved criminal charges may potentially be tried again.
If a criminal case results in a conviction, mistrial, or other trial-court ruling that may raise appellate issues, Brownstone Law‘s criminal appeal lawyers can review the case and explain the available appellate options. Contact Brownstone Law for a no-cost appeal evaluation.
Frequently Asked Questions (FAQs)
Q1. Is a Defendant Released After a Mistrial?
No. A defendant is not automatically released simply because a mistrial is declared.
If the criminal charges remain pending, the defendant’s custody or release status generally continues to be governed by the applicable bail and detention rules. The court may keep the existing conditions in place or reconsider them depending on what happens next in the case.
After a mistrial, a defendant may:
- remain in custody while awaiting a retrial;
- remain released under existing bail or pretrial conditions;
- ask the court to reconsider bail or detention; or
- be released if the charges are dismissed or there is no longer a lawful basis for continued detention.
A mistrial ends the current trial, but it does not automatically dismiss the charges or amount to an acquittal. Whether the defendant is released depends on the status of the charges, the court’s detention or bail decision, and the law that applies to the case.
Q2. How Long Can a Jury Deliberate Before It Is Considered Hung?
There is no fixed number of hours or days after which a jury is automatically considered hung. A jury becomes deadlocked when the judge determines that further deliberations are unlikely to produce the agreement required for a valid verdict.
Some juries may deliberate for only a few hours, while others may deliberate for several days or longer. The appropriate length of deliberations depends on the circumstances of the case.
A judge may consider factors such as:
- the length and complexity of the trial;
- the number of charges and defendants;
- the volume of evidence presented;
- how long the jury has already been deliberating;
- whether the jury has reported repeated difficulty reaching agreement; and
- whether jurors believe additional deliberations could still be productive.
For example, a complex trial involving multiple defendants, numerous charges, and extensive evidence may reasonably require much longer deliberations than a short trial involving a single straightforward charge.
The key issue is therefore not how much time has passed, but whether there is still a reasonable possibility that the jury can reach the required verdict. If the judge concludes that further deliberations would likely be futile, the jury may be declared deadlocked and a mistrial may be considered.
Q3. How Many Mistrials Can You Have?
There is no fixed nationwide limit on how many mistrials can occur in a criminal case. A case is not automatically dismissed after a second or third mistrial.
Whether prosecutors may try the case again depends on the circumstances surrounding each mistrial, including why the trial ended, whether the defendant requested or consented to the mistrial, applicable double-jeopardy protections, and the relevant state or federal law.
For example, repeated mistrials caused by genuinely hung juries do not automatically prevent another prosecution. However, mistrials caused by prosecutorial misconduct or other circumstances can raise different constitutional issues.
The applicable rules depend on the jurisdiction handling the case. There is no separate general rule imposing a specific mistrial limit simply because a case is being prosecuted in Boston or any other particular city.
