When a jury cannot reach the unanimous decision a criminal verdict requires, the judge declares a mistrial and the case resets. That is what happens with a hung jury: no conviction, no acquittal, and the prosecution gets to decide what comes next. The three real options are a retrial with a new jury, a negotiated plea, or dismissal of the charges. Which one happens depends on how the jurors split, how strong the evidence looked the first time around, and whether the government thinks another trial is worth the cost.
Why a Single Holdout Ends the Trial
Criminal verdicts in the United States must be unanimous. The Supreme Court confirmed that rule in Ramos v. Louisiana, holding that the Sixth Amendment demands a unanimous jury in both state and federal courts.1Supreme Court of the United States. Ramos v. Louisiana If even one juror refuses to join the rest, the jury is “hung” or “deadlocked,” and no valid verdict can be returned. A hung jury says nothing about guilt or innocence. It only means the system’s standard for certainty was not met.
Civil cases play by different rules in some jurisdictions, but a criminal conviction always requires every juror on board.
What the Judge Tries Before Giving Up
A deadlock usually comes to the judge’s attention through a note from the foreperson. The judge does not immediately end the trial. Jurors can be sent back for more deliberation, sometimes more than once, and the judge has discretion over how long to let that go on. There is no fixed minimum.
The most familiar tool for breaking an impasse is a supplemental instruction known as an Allen charge, or “dynamite charge,” named for the 1896 Supreme Court decision Allen v. United States. The instruction asks jurors in the minority to reconsider whether their doubt is reasonable given that equally honest and intelligent jurors have reached a different conclusion, while also telling the majority to seriously weigh the minority’s arguments. It stresses that any verdict must reflect each juror’s genuine belief.2Justia. Allen v. United States, 164 U.S. 492 (1896)
Federal courts still use the Allen charge, but it is controversial. Critics say it pressures holdouts to cave. Several states have banned or restricted it in favor of more neutral instructions that encourage continued discussion without singling anyone out.
The Mistrial
Once the judge decides more deliberation would be pointless, the result is a mistrial. The trial is formally terminated with no judgment on the merits. The defendant has not been convicted and has not been acquitted. The proceedings are nullified and the case reverts to its pretrial posture.
The important contrast is with an acquittal. An acquittal permanently ends the case. A mistrial from a hung jury leaves the door open for the prosecution to try again.
The Three Paths After a Mistrial
After the mistrial, the decision belongs to the prosecutor. The defense has no veto. The prosecutor weighs the jury’s split, the strength of the evidence, the resources available, and the public interest, then picks one of three routes.
Retrial With a New Jury
The prosecution can bring the same charges again before a new jury. The trial starts from scratch: new jury selection, witnesses called again, both sides presenting their cases anew. The defendant keeps every constitutional right that applied the first time. Retrials can be expensive, especially when expert witnesses, forensic analysis, and extensive discovery are involved, which is one reason not every hung jury leads to a second trial.
Plea Bargain
A hung jury shifts the leverage in plea discussions. A prosecutor who struggled to persuade twelve jurors the first time may not like the odds of doing so on a second attempt, and that uncertainty can prompt an offer to a lesser charge or a lighter sentencing recommendation. For the defendant, accepting a deal takes the risk of a conviction off the table. Many cases resolve this way after a deadlock.
Dismissal
The prosecution can also drop the charges. That outcome is more likely when the jury leaned heavily toward acquittal, when key evidence has weakened since the first trial, or when the cost of trying again is not justified by the severity of the charges. A dismissal ends the case.
Why a Retrial Isn’t Double Jeopardy
Trying a defendant again after a hung jury does not violate the Fifth Amendment. The Supreme Court settled that question in United States v. Perez, holding that discharging a jury unable to agree does not bar a later trial on the same offense.3Justia. United States v. Perez, 22 U.S. 579 (1824) The reasoning is that a hung jury never placed the defendant in true jeopardy, because the trial ended without a resolution.4Constitution Annotated. Amdt5.3.1 Overview of Double Jeopardy Clause
When Only Some Counts Are Deadlocked
Defendants are often charged with multiple counts, and jurors do not have to be stuck on all of them. They can unanimously agree on some while splitting on others, and the result is a partial verdict. The judge accepts the verdict on the resolved counts and declares a mistrial only on the counts where the jury could not agree.
An acquittal on any count is final and cannot be retried under the Double Jeopardy Clause. A conviction on a resolved count stands and can be appealed. The prosecution still has the option to retry the deadlocked counts under the usual rules.5Justia. Reprosecution Following Mistrial
One subtlety matters here. In Blueford v. Arkansas, the Supreme Court held that even when a foreperson reports the jury was unanimously against guilt on certain charges during deliberations, that report does not count as an acquittal if the jury has not been formally discharged. Because the jurors remained free to reconsider those votes while still working on other charges, the report lacked the finality double jeopardy requires. The prosecution was free to retry those charges after the eventual mistrial.