What happens when a jury is hung

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Posted on August 15, 2022

A hung jury is when the jurors in a criminal or civil trial cannot reach an agreement as to the verdict. Most jurisdictions require a unanimous jury decision for verdicts. This means all jurors have to agree on guilt or innocence to render a trial complete.

If there is a hung jury in a case, then any of the following may occur:

• the judge may ask the jurors to deliberate for longer,
• the judge can declare a mistrial,
• the prosecution can retry or dismiss the case, or
• the prosecution may enter into a plea bargain with the defendant.

1. What is a hung jury?

A hung jury is a legal term for a jury that is divided in opinion in so far that they cannot agree on whether to issue a guilty verdict or an acquittal. Hung juries can occur in both criminal trials and civil trials.1

Note that most states require that all jurors on a case have to agree on the issue of whether a defendant is guilty or innocent. In other words, the jurors have to make a unanimous decision as to guilt or innocence.

If no unanimous decision, then there is a hung jury.

2. What happens if there is a hung jury?

If there is a hung jury in a legal case, the following may happen:

• the judge may ask the jurors to deliberate or consider the case further,
• the judge may schedule a hearing where the jurors can ask questions to the parties involved,
• the prosecution may decide to retry the case,
• the prosecution may decide to dismiss the case or enter into a plea bargain with the defendant, or
• the judge may declare a mistrial.

If a judge does declare a mistrial or retrial due to a deadlocked jury, the prosecution has the opportunity to retry the case or ask for a new trial. But the prosecution is under no obligation to do so.

If, for example, the jurors in the hung jury were stuck at 11 votes in favor of acquittal and only one juror would have found the defendant guilty, the prosecution may see that as the writing on the wall and decide not to try the case again.

3. Is it double jeopardy to retry a case after a mistrial?

Not necessarily. The Double Jeopardy Clause has been written into the Fifth Amendment of the United States Constitution.2

The double jeopardy clause guarantees that there will be

• no prosecution after acquittal for the same offense,
• no double convictions for the same offense and,
• no multiple punishments for the same offense.

The Clause usually does not apply in the case of a hung jury and a prosecutor’s decision to retry a case.

If there is some “legal necessity” that required a jury to be discharged, a case may be retried.3 In these circumstances, the double jeopardy defense is not available.

A legal necessity may arise from

• a juror’s illness or other incapacity,
• a juror’s absence,
• a hung jury, or
• the incapacity or absence of the defendant, defense counsel, or the judge.4

4. What is jury misconduct?

Jury misconduct is defined as any conduct that conflicts with the judge’s instructions as to how jurors should perform their duties.

This type of conduct can include (but is not limited to) a juror:

• speaking to people about the case who are not on the same jury,
• speaking to a fellow juror about the case other than when the full jury is together engaged in an official session of deliberations,
• refusing to deliberate,
• conducting an independent (and unauthorized) investigation about the facts of the case, and/or
• purposely concealing personal beliefs and/or experiences that could influence impartial deliberations.

Once a judge determines that one or more jurors have engaged in jury misconduct and that that misconduct has interfered with the defendant’s right to a fair trial, the judge has several options.

The judge may:

• admonish the jury about the misconduct,
• discharge the tainted juror (and replace him/her with an alternate juror or, if no alternate juror is available, proceed with an 11-member jury if the parties stipulate to doing so),
• discharge the entire jury panel, or
• declare a mistrial (and the judge can either dismiss the charge(s) or order a retrial of the case).

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Recently, the high profile prosecution of ex-police officer David Duckenfield relating to the Hillsborough tragedy ended without reaching a conclusion. A number of papers reported that there was a hung jury.  So, what does that mean?

In an ideal world, a jury will reach a clear conclusion by either convicting or acquitting the defendant.

Where a case retains the original 12 jurors at least 10 must agree on the verdict.  If the numbers fall short, for example, with 8 wanting to acquit and 4 wanting to convict, that will not be an acceptable verdict.

If the jury indicates that they will not be able to reach a verdict in accordance with the law then then that jury will need to be discharged.

In legal terms, this is often referred to as a hung jury.

What happens if there is a hung jury?

The prosecution can apply to have the defendant tried again.  This will be the outcome in most cases.

The decision is one for the trial Judge who will consider whether or not it is in the interests of justice for a retrial to take place.

Typically, the court considers questions which include (but are not limited to) whether:

• the alleged offence is sufficiently serious to justify a retrial
• if re-convicted, the appellant would be likely to serve a significant period or further period in custody
• the appellant’s age and health
• the wishes of the victim of the alleged offence.

If prosecutorial misconduct is alleged then other factors will come into play, analogous with whether it is an abuse of process to allow a retrial.

In most cases, the defence will not be able to properly resist the application.  We would, however, always carefully consider all relevant factors and object if able to.

What happens if a second jury still cannot reach a verdict?

The usual practice in this scenario is for the prosecution to offer no evidence, although there are rare circumstances where a further retrial could take place.

Contact an expert in Crown Court representation

We are specialists in Crown Court litigation and advocacy.  You can read about how we prepare for such serious cases here.

Legal aid is likely to be available for defending a Crown Court case.

Here are some of the cases that we have dealt with recently:

Successful defence of a serious robbery in the home.

Successful challenge of expert evidence in drugs case.

Abuse of process in paedophile hunter case.

We have offices across the East Midlands.  From those we provide nationwide advice and representation.

You can find your nearest office here.

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