Mistrials and Hung Juries

A criminal trial is supposed to end with a verdict. Guilty or not guilty. A clean, final answer.

But sometimes the system cannot get there. Jurors cannot agree. Something happens in the courtroom that makes a fair verdict impossible. The judge declares a mistrial, and the case hits an unsettling legal pause: the defendant is not convicted, but also not cleared.

This is where the public conversation often goes off the rails. People hear “mistrial” and assume it means the government lost, or that trying again automatically violates the Constitution’s protection against double jeopardy. The real rule is more specific, and more practical: why the trial ended is what determines what can happen next.

One quick note: This article describes general U.S. criminal trial principles. The details can vary by state, by court rule, and sometimes by the kind of charge.

What a mistrial is

A mistrial is the court’s way of saying: this trial cannot legally or fairly reach a verdict, so it must stop. The judge ends the proceeding without a final decision from the jury (or, in a bench trial, without a final judgment).

A mistrial is not the same thing as an acquittal. An acquittal is a verdict of not guilty that triggers the strongest double jeopardy protection. A mistrial is a non-ending. The case generally returns to a pretrial posture unless the prosecutor dismisses the charge, the court bars retrial, or the parties resolve it by plea.

It also helps to separate three terms people often blend together:

• Mistrial: the trial ends without a verdict.
• Dismissal: the charge is thrown out (sometimes temporarily, sometimes permanently).
• Dismissal with prejudice: the charge cannot be refiled, which usually ends the case for good.

The most common reason

A hung jury happens when jurors cannot agree on a verdict after serious, good-faith deliberation. In most criminal jury trials in state and federal court, juries must be unanimous to convict. That is the general rule after Ramos v. Louisiana (2020) for serious offenses, though some jurisdictions have limited variations in lower-level cases or in systems with smaller juries.

Just as important: an acquittal is a verdict. To acquit, the jury must reach a unanimous not-guilty verdict. If the jurors cannot reach unanimity either way, there is no verdict. That is when you get a deadlock and, often, a mistrial.

When the jury reports that it is deadlocked, the judge has options before calling it:

• Send them back to deliberate longer, often after clarifying instructions.
• Give a deadlock instruction (often called an Allen charge in federal practice), urging jurors to keep talking without surrendering honest convictions.
• Declare a mistrial if it becomes clear the jury is not going to reach unanimity.

There is no magic number of hours that creates a hung jury. Judges look at the length and complexity of the trial, the volume of evidence, and whether additional deliberation seems likely to produce a verdict.

Other mistrial causes

Hung juries get the headlines, but mistrials can come from anything that makes the proceeding unreliable. Courts generally think in terms of prejudice, misconduct, or a breakdown in the basic machinery of trial.

Prejudicial statements or evidence

Trials are built on rules of evidence. If the jury hears something it should not, and the harm cannot be undone by a judge’s instruction to disregard it, a mistrial becomes a real possibility.

• A witness blurts out prior-crime information that was ruled inadmissible.
• The jury hears about excluded confessions or statements.
• The prosecutor or defense refers to barred facts in opening or closing.

Juror misconduct

Jurors are not allowed to investigate, experiment, or outsource their decision-making to the internet. When they do, the integrity of the verdict is threatened.

• Looking up the defendant or witnesses online.
• Reading news or social media about the case during trial.
• Discussing the case with outsiders before deliberations end.
• Conducting a personal “test” of evidence at home.

Attorney or prosecutorial misconduct

Not every mistake is misconduct, and not every misconduct leads to a mistrial. The question is whether the conduct likely deprived the defendant of a fair trial.

• Improper arguments that inflame the jury with prejudice.
• Violating discovery obligations in a way that cannot be cured mid-trial.
• Asking forbidden questions to plant an idea in jurors’ minds.

Outside events and breakdowns

Sometimes the problem is not in the courtroom, but it still poisons the process. Sometimes the process simply cannot continue.

• A juror is threatened or approached.
• High-profile media coverage reaches the jury despite instructions.
• A key participant becomes unable to proceed because of illness or emergency.
• A juror is disqualified mid-trial and no alternate is available.

In many of these situations, the judge tries lesser fixes first, like striking testimony, giving curative instructions, or replacing a juror with an alternate. A mistrial is the last resort when the court concludes those fixes will not work.

And a mistrial is not always all-or-nothing. Courts can declare a partial mistrial, for example, when the jury reaches verdicts on some counts but deadlocks on others. The decided counts stay decided. The unresolved counts are the ones the prosecutor may try again.

Who can ask for one

Either side can move for a mistrial, and judges can declare one on their own initiative. But the record matters. Who requested it, who objected, and what the judge found on the record often shapes whether a retrial is allowed.

Double jeopardy basics

The Fifth Amendment says a person cannot be “twice put in jeopardy” for the same offense. In plain English, it blocks the government from repeatedly prosecuting someone until it gets the outcome it wants.

But double jeopardy does not mean “the government only gets one shot no matter what.” The key is that the Constitution cares about finality.

When jeopardy starts

In a jury trial, jeopardy generally attaches when the jury is sworn. In a bench trial, it attaches when the first witness is sworn. That matters because, after that point, certain endings have constitutional consequences.

When a retrial is usually allowed

A retrial after a mistrial is often permitted because the first trial ended without a final verdict. The classic example is a hung jury. Courts treat a deadlock as a situation of “manifest necessity” to end the trial, and a second trial does not count as unconstitutional double jeopardy.

Also common: mistrials requested by the defense. If the defendant asks for a mistrial, a retrial is generally allowed because the defendant chose to end the proceeding. There is a major exception when the prosecutor’s conduct was intended to provoke the defense into requesting a mistrial. That “goading” standard is a high bar, and courts treat it as an intent question, not just a mistake question.

When a retrial may be barred

Some mistrials raise serious double jeopardy concerns, especially when the government is at fault and the defendant did not choose the mistrial. If a judge ends the trial over the defendant’s objection without a strong necessity, a retrial can be unconstitutional.

And if the case ends in an acquittal, even an acquittal that seems legally mistaken, the government typically cannot appeal in a way that would lead to a second trial. The core principle holds: final means final.

This is why you will see courts and lawyers argue intensely over a mistrial record. The transcript becomes the map for whether the Constitution permits a redo.

What happens next

Once a judge declares a mistrial for a hung jury, the case does not automatically restart the next morning. The system shifts into a quieter phase that still has real consequences for the defendant.

Step 1: The jury is discharged

Jurors are typically thanked and released. Depending on local practice and judicial instructions, they may be told they can discuss the case afterward, or they may be urged to respect privacy and safety considerations.

Step 2: A new court date is set

The court sets a status hearing where prosecutors and defense counsel report what they intend to do next. Courts also address custody status, bail conditions, and deadlines.

Step 3: The prosecutor decides

Prosecutors usually have three practical options:

• Retry the case with a new jury.
• Offer a plea deal, sometimes more favorable than before trial, sometimes less.
• Dismiss the charges, either because the evidence is weak or because the office chooses to prioritize other cases.

A hung jury does not tell you only one thing. It can mean the government nearly proved its case and just missed one juror. It can also mean the jury leaned heavily toward acquittal but could not reach unanimity. Prosecutors pay close attention to whatever lawful feedback they can get, including post-trial juror statements when jurors choose to speak.

Step 4: The defense recalibrates

Defense counsel often files or renews motions after a mistrial, including:

• Motions to dismiss on constitutional or procedural grounds (and, in rare situations, to seek dismissal with prejudice).
• Motions to suppress evidence if new issues surfaced during testimony.
• Motions in limine to limit what the jury can hear next time.

And yes, the human reality matters. A second trial means new stress, new expense, and more time in limbo, even if the defendant remains legally presumed innocent.

One point of confusion

A mistrial is not a conviction, so there is no sentencing. Appeals also look different. Most criminal appeals flow from a final judgment, which usually means a conviction and sentence. A mistrial, by contrast, is usually followed by retrial, dismissal, or some other resolution that creates a final order.

What jurors experience

Jurors often walk out of a mistrial feeling like they failed. Legally, they did not. Deadlock is not misconduct. It is the system admitting something important: forcing unanimity sometimes means accepting that unanimity will not happen.

After discharge, jurors may encounter:

• A short debrief from the judge, sometimes reminding them not to reveal private juror discussions in ways that could invite harassment.
• Requests from reporters in high-profile cases. Jurors are generally free to decline.
• Contact from attorneys, which is regulated and varies by jurisdiction and court order.

One thing jurors do not do is “continue deliberating later.” Once discharged, that jury is done. A retrial is a brand-new trial with a brand-new jury.

What defendants face

For a defendant, a mistrial can feel like purgatory. The prosecution did not win, but the defendant is still under the weight of a pending accusation.

Custody and release

If the defendant is in custody pretrial, a mistrial can mean continued detention unless bail is granted or modified. If the defendant is out on bond, the same conditions usually remain in place. Either way, the court will set future dates, and missed appearances can create new legal trouble.

Speedy trial questions

A retrial has to be scheduled within constitutional and statutory limits, but “speedy trial” is not a simple stopwatch. Courts consider reasons for delay and who asked for continuances. After a mistrial, both sides may need time to prepare again, and courts balance that against the defendant’s right not to wait indefinitely.

Leverage shifts

Hung juries change bargaining dynamics. A prosecutor may fear losing outright in a second trial and offer better terms. Or the prosecutor may believe the second jury will convict and press harder. The defense must decide whether to negotiate, retool, or fight again.

Can they retry forever

The Constitution does not set a strict numeric limit like “two trials max.” In theory, multiple retrials after multiple hung juries can be permitted because each trial ended without a final verdict.

In practice, repeated retrials run into real constraints, most of them concrete rather than philosophical:

• Resources: trials are expensive, and offices triage.
• Witness fatigue: memories degrade, willingness changes, credibility suffers.
• Speedy trial and due process: long delays and repeated resets can create constitutional and statutory problems in extreme cases.
• Supervision and discretion: judges manage dockets and can scrutinize whether continued prosecution is fair, while prosecutors can choose to dismiss when a case stops making sense to pursue.
• The jury signal: repeated deadlock can indicate the community is not willing to convict on the available proof.

The deeper point is still practical. The law may allow another try after a non-verdict, but the system is supposed to recognize when a case has reached its realistic limits.

The bottom line

A mistrial is not a verdict. It is the court admitting the verdict process broke down, either because jurors could not agree or because something compromised fairness.

After a hung jury, retrial is usually allowed because the first proceeding ended without a final decision. That does not mean retrial is automatic, wise, or inevitable. It means the Constitution draws the line at final outcomes, not at attempts.

If you want to understand what happens next, look for three things: why the mistrial was declared, whether the defense agreed or objected, and what the judge put on the record. That is where the law lives when a trial ends without an answer.