A hung jury does not automatically mean a retrial. When jurors cannot agree and the judge declares a mistrial, the prosecutor decides what comes next, and retrial is only one option. Research on hundreds of hung jury cases found that about a third led to a new trial, roughly a third ended in plea agreements, and about a fifth were dismissed outright.
What a Hung Jury Actually Is
A hung jury is a jury that finishes deliberating without reaching a unanimous verdict. In serious criminal cases, both federal and state verdicts must be unanimous to convict.1Constitution Annotated. Amdt6.4.4.3 Unanimity of the Jury One juror holding out is enough to deadlock the panel. A deadlock is neither a conviction nor an acquittal. The case has simply produced no outcome.
Civil trials follow a different rule: a federal civil verdict defaults to unanimous but the parties can agree in advance to accept a non-unanimous result, which makes true hangs less common on that side.2Legal Information Institute. Federal Rules of Civil Procedure Rule 48 The rest of this article is about criminal cases, where retrial is the main concern.
Why the Government Is Allowed to Try You Again
The instinct that a second trial sounds like double jeopardy is understandable, but the Supreme Court closed that argument almost two centuries ago. The Fifth Amendment bars putting someone in jeopardy twice for the same offense,3Constitution Annotated. Amdt5.3.1 Overview of Double Jeopardy Clause but a hung jury produces no verdict, so the original jeopardy never ended.
In United States v. Perez (1824), the Court held that when a jury is discharged for failing to agree, the defendant “has not been convicted or acquitted, and may again be put upon his defence.”4Justia. United States v Perez The Court reaffirmed the point in Richardson v. United States (1984): neither a hung jury nor the mistrial that follows “is an event that terminates the original jeopardy.”5Justia. US Constitution Annotated, Fifth Amendment – Reprosecution Following Mistrial Federal criminal rules spell out the same principle: the government may retry any defendant on any count on which the jury could not agree.6Legal Information Institute. Federal Rules of Criminal Procedure Rule 31 – Jury Verdict
There is no constitutional cap on how many times the government can try again after a hung jury. The real limits come from prosecutorial discretion and from speedy trial rules.
The Three Paths After a Mistrial
Once the mistrial is declared, the prosecutor generally weighs three options:
- Retry the case before a new jury, often with an adjusted strategy or additional evidence.
- Offer a plea agreement, frequently to a lesser charge or with a lighter sentencing recommendation. A large share of hung jury cases ends here.
- Dismiss the charges, either because the evidence looks too weak to justify a second trial or because the first trial exposed problems the prosecution cannot fix.
Each side now knows things it did not know before. The prosecution has seen the defense play out and knows which witnesses persuaded and which did not. The defense knows the government could not get twelve people to agree on guilt. That shared information tends to push both sides toward a negotiated outcome.
What Pushes a Prosecutor Toward Retrial or Away From It
Several practical factors shape the call.
The jury’s numerical split carries real weight. An 11–1 vote for conviction tells the prosecution a different panel might convict; a 6–6 split tells it the case has deeper problems. Judges often ask the foreperson to report the split without identifying how any individual juror voted, so both sides can gauge where the case stood.
The seriousness of the charge matters. Prosecutors are much more likely to retry a homicide or major fraud than a low-level possession case, because the public interest in resolving serious crimes supports the extra cost.
The strength of the evidence gets a second look. The first trial functions as a dress rehearsal, and the Constitution does not bar the prosecution from strengthening its case before trying again.5Justia. US Constitution Annotated, Fifth Amendment – Reprosecution Following Mistrial New witnesses, better exhibits, and a sharper theory of the case can all come in on the second attempt.
Cost and resources shape the decision too. Trials are expensive. Witnesses move, memories fade, and physical evidence degrades. An office stretched thin may decide a borderline retrial is not worth the budget.
What You Can Do After the Mistrial
A hung jury leaves a defendant in limbo, but there are real moves to make.
File a Motion for Judgment of Acquittal
Under Federal Rule of Criminal Procedure 29, a defendant can move for a judgment of acquittal within 14 days after the jury is discharged. If the judge finds the prosecution’s evidence insufficient to sustain a conviction, the court can enter an acquittal and end the case.7Justia. Fed. R. Crim. P. 29 – Motion for a Judgment of Acquittal The standard is demanding: the judge has to conclude that no reasonable jury could convict on the evidence presented. When it works, it works decisively. A Rule 29 acquittal triggers double jeopardy protection and permanently bars retrial.
Use the Hung Jury in Plea Negotiations
A hung jury is leverage. The government spent weeks trying to convict you and failed. Plea offers after a mistrial are often meaningfully better than anything that was on the table before trial. Whether to accept turns on the specifics: the vote split, the strength of the evidence that came in, and the exposure if a second jury convicts.
Watch Your Bail Status
A mistrial does not automatically change bail. If you were out on bail, you generally stay out on the same terms. If you were in custody, the court can revisit the question. Judges can raise or lower bail based on changed circumstances and can add conditions such as travel limits or electronic monitoring. Conduct during the trial that undermined the proceedings can lead to stricter conditions.
How Long the Government Has to Retry
The prosecution cannot sit on the case indefinitely. Under the federal Speedy Trial Act, when a mistrial is declared, the new trial must begin within 70 days.8Office of the Law Revision Counsel. 18 USC 3161 Certain delays are excluded from that clock, including time spent on pretrial motions and continuances granted for good cause. Most states have their own speedy trial rules with their own time limits. If the deadline passes, the defendant can move to dismiss.
If the Prosecution Walks Away
When the government decides not to retry, it usually files a motion to dismiss. The key question is whether the dismissal is with prejudice or without prejudice. A dismissal with prejudice permanently ends the case and bars those charges from ever coming back. A dismissal without prejudice leaves the government free to refile the same charges later, as long as the statute of limitations has not run.
Most voluntary dismissals after a hung jury are without prejudice, because prosecutors want to preserve the option if new evidence turns up. Refiling months or years later is uncommon in practice. Witnesses scatter, memories fade, and the case grows stale. Still, a defendant whose charges are dismissed without prejudice remains technically exposed until the limitations period ends. For serious felonies, that window can be long.