After a mistrial, the charges stay alive, no verdict is entered, and the case returns to roughly where it stood before trial began. What happens after a mistrial depends almost entirely on what the prosecution decides to do next: retry the case with a fresh jury, offer a plea deal or settlement, or drop the charges. The defendant is neither convicted nor acquitted, and the jury’s work is discarded.
The Case Reverts to Pretrial Status
Once the judge declares a mistrial in open court and dismisses the jurors, the trial is over and the slate is wiped. Nothing the jurors heard, debated, or tentatively decided carries any weight going forward. Evidence introduced, witness testimony given, and arguments made during the trial have no legal effect on what happens next.
The original charges remain pending. Both sides, however, walk away with something they didn’t have before: a detailed preview of the other’s strategy, witnesses, and weak spots. That changes the posture of everything that follows.
Bail and Custody
Release conditions do not automatically reset after a mistrial. The court may reassess bail based on the severity of the charges, the defendant’s criminal history, flight risk, and anything new that surfaced during the trial. A defendant who was free on bail before the first trial will typically remain free, but there is no guarantee. Defendants held in custody before trial generally stay in custody unless the court decides otherwise.
The 70-Day Clock on a Retrial
Federal law puts a hard deadline on retrying a case. Under the Speedy Trial Act, the government must begin a new trial within 70 days after the mistrial is declared.1Office of the Law Revision Counsel. 18 USC 3161 – Time Limits for Information or Indictment and for Trial Certain delays, such as time spent on pretrial motions, do not count toward that 70-day clock. If the government misses the deadline, the defendant can move to dismiss the charges.
Most states have their own speedy trial rules with different timelines, but the principle is the same: the prosecution cannot leave a defendant in legal limbo indefinitely.
The Prosecution’s Three Options
After a mistrial, the next move belongs to the prosecution. Three paths are possible.
Retrial
The most common path is retrying the case from scratch with a brand-new jury. Whether to retry often depends on why the first trial ended. A hung jury where ten jurors favored conviction gives the prosecution good reason to take another shot. A deadlock that leaned heavily toward acquittal sends a different signal.
The second trial is a completely fresh proceeding: new jury selection, new opening statements, new witness testimony. Nothing from the first trial carries over automatically, though both sides now have a much clearer read on each other.
Plea Deal or Settlement
A mistrial often opens room for negotiation that didn’t exist before. In criminal cases, the prosecution may offer a plea bargain, letting the defendant plead guilty to a reduced charge in exchange for a lighter sentence. In civil cases, the parties may settle to avoid the cost and uncertainty of a second trial. After watching the evidence play out once, both sides tend to assess their chances more realistically.
Dismissal
Sometimes the prosecution decides not to try again. This can happen when the mistrial exposed serious weaknesses in the evidence, when key witnesses are no longer available, or when the cost of a second trial isn’t justified by the likely outcome. A prosecutor formally abandons charges by entering what’s called a nolle prosequi, a declaration that the government will not pursue the case further.
A dismissal is not the same as an acquittal. In some situations the charges could theoretically be refiled later, though this rarely happens in practice.
Can You Be Retried? Double Jeopardy After a Mistrial
The Fifth Amendment’s Double Jeopardy Clause protects people from being tried twice for the same crime after an acquittal or conviction.2Library of Congress. U.S. Constitution – Fifth Amendment A mistrial is neither. Because the first trial never reached a conclusive verdict, jeopardy is not considered to have ended. The Supreme Court settled this nearly two centuries ago in United States v. Perez, holding that when a jury is discharged out of manifest necessity, the defendant “may again be put upon his defence.”3Justia U.S. Supreme Court Center. United States v. Perez, 22 U.S. 579 (1824)
Retrial is clearly permitted when the mistrial results from a hung jury or when the defense itself requests or agrees to the mistrial. In those situations, the need to end the trial isn’t caused by government misconduct, so the prosecution gets another chance.
The Prosecutorial Misconduct Exception
There is one important exception. In Oregon v. Kennedy, the Supreme Court held that double jeopardy bars a retrial when the prosecutor deliberately provoked the defense into requesting a mistrial. The test focuses on the prosecutor’s intent: if the misconduct was designed to torpedo the trial because things were going badly for the government, the defendant cannot be forced to start over.4Justia U.S. Supreme Court Center. Oregon v. Kennedy, 456 U.S. 667 (1982)
Proving this is extremely difficult. The defendant must show that the prosecutor acted with the specific intent to cause a mistrial, not merely that the prosecutor behaved badly. Reckless or negligent misconduct, even if it wrecks the trial, is not enough to trigger the protection.
The Practical Reality
The Supreme Court has acknowledged the unfairness built into life after a mistrial. A second prosecution increases the financial and emotional burden on the accused, prolongs the stigma of an unresolved accusation, and may even raise the risk that an innocent defendant is convicted the second time around as the prosecution refines its approach.
For the defendant, that means the weeks after a mistrial are rarely quiet. Bail may be revisited. Prosecutors are deciding whether to refile, retry, or negotiate. The speedy trial clock is running. Any decision about whether to accept a plea offer or push toward a second trial is best made with a defense attorney who already knows how the first trial unfolded.