A criminal case can be retried after a hung jury. Because the jury reached no verdict, the constitutional protection against double jeopardy does not bar a second trial, and a retrial after a hung jury proceeds at the prosecutor’s discretion. The prosecutor’s three options are to bring the case before a new jury, negotiate a plea, or dismiss the charges.
Why Double Jeopardy Does Not Block a Retrial
The Fifth Amendment prohibits putting someone “twice in jeopardy of life or limb” for the same offense. Jeopardy attaches when the jury is sworn in. But the Supreme Court held in United States v. Perez (1824) that a hung jury does not end jeopardy, it suspends it. When a jury cannot agree, the judge has authority to discharge them based on “manifest necessity,” and the government can try the defendant again.1Justia Supreme Court. United States v Perez The retrial is treated as a continuation of the original prosecution, not a second one, because no verdict was ever delivered.
There is one narrow exception. In Oregon v. Kennedy, the Supreme Court held that retrial is barred when the prosecution intentionally provoked the mistrial, for instance by committing misconduct designed to goad the defense into asking for one because the trial was going badly for the government.2Justia Supreme Court. Oregon v Kennedy Even serious prosecutorial errors do not trigger this bar unless the misconduct was specifically intended to cause a mistrial.
The framework draws a hard line between a hung jury and an acquittal. An acquittal is final and unreviewable. A hung jury resolves nothing, so the government gets another chance.
The Prosecutor’s Decision After a Mistrial
After the judge declares a mistrial, the prosecutor decides what comes next. Courts generally will not second-guess that call absent evidence of bad faith. Several factors drive the decision.
The jury’s vote split matters. Deliberations are officially secret, but attorneys often learn the breakdown informally. An 11-1 split for conviction signals a strong case derailed by a single holdout. A 6-6 split suggests the evidence isn’t persuading half the room. A 10-2 lean toward acquittal makes a retrial look risky.
Evidence strength and witness availability shift between trials. If a key witness has moved, become uncooperative, or lost credibility, the case may be weaker the second time around. Severity of the charges also pulls on the decision. Prosecutors face strong pressure to retry violent felonies regardless of the split, while the expense and time of a second trial for lower-level offenses may not be justified. Retrials consume significant court resources, attorney time, and public money, and those costs need justification proportional to the stakes.
The window between a mistrial and a retrial often produces the most productive plea negotiations in the whole case. Before the first trial, both sides are guessing about how the evidence will play. After a hung jury, nobody is guessing. Prosecutors sometimes offer better terms when the split suggests the case is weak, and defendants may be more open to a deal after watching the prosecution’s strongest witnesses testify. For defendants, a plea eliminates another round of defense fees, which for private counsel can run into tens of thousands of dollars, along with the emotional toll of living under pending charges.
If the prosecutor decides a retrial is not worth it, they file a motion to dismiss. A dismissal “without prejudice” ends the current case but allows the prosecutor to refile the same charges later, as long as the statute of limitations has not run. A dismissal “with prejudice” is permanent and gives the defendant the same protection as an acquittal.
Partial Verdicts on Multiple Charges
When a defendant faces several counts, the jury might agree on some and deadlock on others. Federal Rule of Criminal Procedure 31 allows the jury to return a verdict on the counts where they agree, with the judge declaring a mistrial only on the hung counts.3Legal Information Institute (LII) / Cornell Law School. Federal Rules of Criminal Procedure Rule 31 – Jury Verdict The prosecution can then retry only the unresolved charges while the completed verdicts stand.
The distinction matters. An acquittal on any count is permanent and cannot be retried. A conviction on any count stands, subject to appeal. Only the hung counts go back into play, and that can dramatically narrow the scope of a retrial and change the calculus for both sides.
The Defense’s Motion for Judgment of Acquittal
A hung jury does not leave the defense without options. Under Federal Rule of Criminal Procedure 29, the defense can ask the judge to enter a judgment of acquittal on the ground that the prosecution’s evidence was too weak to support a conviction.4Legal Information Institute (LII) / Cornell Law School. Federal Rules of Criminal Procedure Rule 29 – Motion for a Judgment of Acquittal The defense has 14 days after the jury is discharged to file, and no earlier motion during trial is required.
The standard is whether any reasonable jury could have found the defendant guilty on the evidence presented. The bar is high. Judges grant these motions only when the evidence is clearly insufficient, not merely because the jury couldn’t agree. If the motion is granted, the acquittal carries full double jeopardy protection, identical to a not-guilty verdict from a jury. The prosecution cannot appeal it or retry the case.4Legal Information Institute (LII) / Cornell Law School. Federal Rules of Criminal Procedure Rule 29 – Motion for a Judgment of Acquittal
How Soon a Retrial Must Begin
Under the federal Speedy Trial Act, a retrial after a mistrial must begin within 70 days from the date the mistrial becomes final.5Office of the Law Revision Counsel. 18 USC 3161 – Time Limits and Exclusions The clock sounds tight, but the statute excludes a long list of delays: time spent on pretrial motions, competency evaluations, transportation of the defendant, continuances granted in the interest of justice, and periods when an essential witness is unavailable.
With those exclusions, the real elapsed time between a mistrial and a retrial is often longer than 70 calendar days. If the prosecution misses the deadline without qualifying exclusions, the defendant can move to dismiss. Most states have their own speedy trial statutes with similar deadlines, though the specific timeframes vary.
What Changes in a Second Trial
A retrial is not a replay. An entirely new jury is selected, and neither side is locked into the approach they used the first time. Both the prosecution and defense can call different witnesses, present evidence in a different order, change their openings and closings, and alter the overall theory of the case.
For the defense, the reset is often an advantage. The defense has seen the prosecution’s full case, knows which arguments landed, and can target the weakest links. The prosecution gains the same intelligence in reverse, but the burden of proof still falls on the government. A defendant who was nearly acquitted the first time starts the retrial knowing exactly where the prosecution struggled.
If a witness from the first trial becomes unavailable, Federal Rule of Evidence 804(b)(1) allows their earlier testimony to be read into the record at the second trial when the witness has died, become too ill to testify, or cannot be located despite reasonable efforts. The requirement is that the opposing party had a meaningful opportunity to cross-examine the witness during the first trial. When that condition is met, the transcript substitutes for live testimony.
The defendant stays on whatever pretrial release conditions applied before the first trial, including bail, unless the court modifies them based on changed circumstances.
Is There a Limit on How Many Times You Can Be Retried
No federal statute or Supreme Court decision caps the number of times a defendant can be retried after repeated hung juries. If the first retrial also deadlocks, the prosecution can bring the case a third time, a fourth, and beyond. Because no verdict is reached at any point, double jeopardy never attaches as a bar.1Justia Supreme Court. United States v Perez The speedy trial clock resets with each new mistrial.
In practice, successive hung juries make each retrial harder to justify. Costs accumulate, witnesses become less available, and multiple deadlocks increasingly suggest the prosecution’s case cannot persuade twelve people. The defense can renew its motion for judgment of acquittal after each failed attempt.4Legal Information Institute (LII) / Cornell Law School. Federal Rules of Criminal Procedure Rule 29 – Motion for a Judgment of Acquittal As a matter of law, though, the decision to keep trying rests with the prosecutor, and there is no fixed number of mistrials that forces the case to end.