Yes, you can be retried after a mistrial in most situations. The Double Jeopardy Clause of the Fifth Amendment protects you from being tried twice for the same offense, but a long-standing exception lets the prosecution try again when a trial ends before a verdict for a legitimate reason.1Congress.gov. Fifth Amendment Whether you actually face a second trial depends on why the mistrial was declared, who asked for it, and whether the prosecutor acted in good faith.
Why a Mistrial Doesn’t End the Case
Double jeopardy protection activates at a specific point called “attachment.” In a jury trial, jeopardy attaches when the jury is empaneled and sworn. In a bench trial, it attaches when the first witness is sworn in.2Legal Information Institute. Jeopardy A mistrial happens after that moment, so jeopardy did attach, but no one won or lost. The trial simply stopped.
The Supreme Court addressed this gap in 1824 in United States v. Perez. When a trial judge finds a “manifest necessity” to end the trial, or when “the ends of public justice would otherwise be defeated,” the jury can be discharged and the defendant tried again without violating double jeopardy.3Justia. United States v Perez, 22 US 579 (1824) That doctrine still governs today. Trial judges have broad discretion to find manifest necessity, though it takes more than mere convenience.
Hung Juries: The Most Common Path to a Retrial
Perez itself was a hung jury case, and that remains the most familiar reason a judge declares a mistrial. When jurors cannot reach a unanimous verdict, the trial produced no result, and the prosecution is free to start again.3Justia. United States v Perez, 22 US 579 (1824) A retrial is not automatic, but legally the door is open.
Other Reasons a Judge Declares a Mistrial
Manifest necessity reaches well beyond deadlocked juries. Courts have found it when a juror’s impartiality becomes questionable mid-trial, when a juror turns out to have served on the grand jury that indicted the defendant, when a medical emergency sidelines the judge or a key witness, and when a defective indictment comes to light during trial.4Legal Information Institute. Reprosecution After Mistrial The common thread is that something made it impossible to finish the trial fairly. In each of these situations, the prosecution can bring the case again.
When Your Own Lawyer Asks for the Mistrial
If you or your attorney moves for a mistrial, you have generally waived your double jeopardy protection. You asked the court to stop the trial, so you cannot then argue the government is unfairly putting you through a second one. Defense attorneys ask for mistrials for all kinds of reasons: a witness blurts out something prejudicial, inadmissible evidence reaches the jury, or a procedural error threatens to taint the verdict. Each request is a tactical trade: the prejudice from the error against the certainty of going through the whole process again.
The One Situation Where Retrial Is Barred
There is a narrow exception. In Oregon v. Kennedy (1982), the Supreme Court held that a retrial is barred when the prosecutor’s conduct was specifically intended to provoke the defense into asking for a mistrial.5Justia. Oregon v Kennedy, 456 US 667 (1982) The scenario the Court had in mind is a prosecutor who sees the case falling apart and deliberately does something so prejudicial that the defense has no real choice but to request a do-over, giving the government a fresh start with a new jury.
The Court rejected a broader “overreaching” test and adopted a narrow intent-based standard. You have to show the prosecutor acted with the specific goal of causing a mistrial, not merely that the prosecutor was sloppy, aggressive, or harassing.5Justia. Oregon v Kennedy, 456 US 667 (1982) That is a hard standard to meet. Misconduct late in a trial, when the prosecution’s case is visibly weak, tends to raise more suspicion than an early misstep. When a court does find this kind of intent, the mistrial is declared “with prejudice,” the charges are permanently dismissed, and you cannot be retried for that offense.
How Long the Prosecution Has to Retry You
Having the right to retry you does not mean the government can take its time. In federal court, the Speedy Trial Act requires a retrial to begin within seventy days from the date the mistrial becomes final.6Office of the Law Revision Counsel. 18 USC 3161 – Time Limits for Information or Indictment and for Trial Certain delays, like time spent on pretrial motions, are excluded from that clock. If the government misses the deadline, you can move to dismiss the charges.
Most states have their own speedy trial statutes, and the time limits vary. The Sixth Amendment guarantees a speedy trial in all criminal prosecutions, which sits as a constitutional floor underneath any state rule. The longer the government waits, the stronger a speedy trial challenge becomes, especially if you are being held in jail awaiting retrial.
What Happens Between the Mistrial and a Retrial
When a mistrial is declared, the case resets to its pretrial posture. Your bail and release conditions do not automatically carry forward. The judge may reassess bail, tighten or loosen conditions, or set new terms before scheduling a new trial date. The severity of the charges, your criminal history, and whether you pose a flight risk all come back into play.
A retrial is not automatic in another sense either. The prosecutor has to affirmatively decide to try the case again, and that decision turns on what went wrong the first time. After a hung jury, prosecutors try to learn how the panel split. An 11–1 vote for conviction tells a very different story than an 11–1 vote for acquittal. A serious case like a murder with a deadlocked jury will almost certainly be retried. A lower-level charge where the key witness came across poorly may quietly go away.
A mistrial also tends to open plea negotiations that were not realistic before. Both sides now have information they lacked at the start: the prosecution has seen how its witnesses hold up on cross, and the defense has seen what evidence the government can actually produce.7Justia. Plea Bargains in Criminal Law Cases If the jury leaned toward acquittal, the prosecutor may offer a significantly reduced charge. If it leaned toward conviction, the defense may accept terms it would have rejected before trial.
A Boundary Worth Knowing: Separate Sovereigns
Double jeopardy only prevents the same government from trying you twice. The federal government and a state government are considered separate sovereigns, so both can prosecute you for conduct that violates both federal and state law, even if an earlier prosecution ended in acquittal, conviction, or mistrial. Two different states can each prosecute you if your conduct broke both states’ laws. This is not technically a mistrial rule, but it is a common source of confusion about what double jeopardy actually prevents.