When a jury cannot agree on a verdict, the judge first sends the jurors back to keep deliberating, often with a special instruction urging them to listen harder to one another. If they still cannot reach the required agreement, the judge declares a mistrial. The case is not over. The prosecution can refile the same charges and try the defendant again, and double jeopardy does not block it. About 6 percent of jury trials end this way, so it is uncommon but not rare.
What “Cannot Agree” Means in a Criminal Case
A jury that has deliberated at length without reaching the required level of agreement is called a hung jury, or a deadlocked jury. In criminal cases, that level is unanimity. Every juror must vote the same way, whether to convict or acquit. The Supreme Court confirmed in 2020 that this requirement applies in both federal and state courts, holding that the Sixth Amendment demands a unanimous verdict to convict a defendant of a serious offense.1Supreme Court of the United States. Ramos v. Louisiana
Civil trials follow different rules. Federal civil juries default to unanimity, but the parties can agree in advance to accept a non-unanimous verdict, and many state courts allow civil verdicts with agreement from only five-sixths or three-fourths of the panel.2Legal Information Institute (LII). Federal Rules of Civil Procedure Rule 48 – Number of Jurors; Verdict; Polling Whatever threshold applies, if the jury falls short, it is deadlocked and the trial stalls.
The Judge’s First Move: Keep Deliberating
Judges do not end a trial at the first sign of disagreement. When jurors send a note saying they are stuck, the judge almost always sends them back to the jury room, often with a pointed instruction known as an Allen charge. The name comes from the 1896 Supreme Court case Allen v. United States, which approved the practice for federal courts.3Justia. Allen v. United States, 164 US 492 (1896)
The core message of an Allen charge is that jurors should keep an open mind and genuinely listen to one another. Those in the minority are asked to reconsider whether their doubts hold up against the reasoning of the majority. Those in the majority are asked to do the same in reverse. The instruction also tells every juror that no one should abandon an honest belief just to reach a verdict.4Legal Information Institute (LII). Allen Charge
Not every court uses the Allen charge in its classic form. Several states have restricted or modified it out of concern that the instruction pressures dissenting jurors into changing their vote, and those courts use softer alternatives that emphasize the same principles without singling out the minority. The approach is universal, though: before declaring a mistrial, the judge gives the jury at least one more chance to break the deadlock.
Partial Verdicts on Some Counts
Many criminal cases involve more than one charge, and the jury does not have to be stuck on all of them. Under the Federal Rules of Criminal Procedure, if the jury agrees on some counts but not others, it can return a verdict on the counts where it reached agreement.5Legal Information Institute (LII). Federal Rules of Criminal Procedure Rule 31 – Jury Verdict The judge then declares a mistrial only on the unresolved counts.
This matters more than people assume. A defendant charged with five offenses might be acquitted on three, convicted on one, and face a hung jury only on the fifth. The acquittals cannot be reversed, the conviction moves to sentencing, and only the deadlocked count goes back into the prosecution’s hands for a possible retrial.
Declaring a Mistrial
If the jury remains deadlocked after the Allen charge and further deliberation, the judge declares a mistrial. The court weighs several factors before making that call: whether the jurors collectively confirm they cannot agree, how long they have deliberated relative to the complexity of the case, and whether more time would be productive.6United States Courts for the Ninth Circuit. 6.26 Script for Post-Allen Charge Inquiry There is no fixed time limit. A long trial with heavy evidence gets more room than a case that reached deliberation in an afternoon.
A mistrial ends the proceedings without producing a legal verdict. The jury is discharged, and the case returns to its pre-trial posture.7American Bar Association. How Courts Work – Mistrials Nothing the jurors said or voted during deliberations becomes a judgment on the merits.
Why a Retrial Does Not Violate Double Jeopardy
The Fifth Amendment protects people from being tried twice for the same offense after an acquittal or conviction.8Congress.gov. Amdt5.3.1 Overview of Double Jeopardy Clause A hung jury is neither. No verdict was reached, so there is no final judgment on the merits to protect. The Supreme Court settled this nearly two centuries ago in United States v. Perez and has reaffirmed it since. A deadlocked jury qualifies as “manifest necessity,” which gives the judge authority to end the trial and allows the government to try the defendant again.9Legal Information Institute (LII). Reprosecution After Mistrial
The Court put it plainly in Richardson v. United States: courts have held “without exception” that a judge may discharge a genuinely deadlocked jury and require the defendant to submit to a second trial, recognizing “society’s interest in giving the prosecution one complete opportunity to convict those who have violated its laws.”10Justia. Richardson v. United States, 468 US 317 (1984) The result can feel harsh to a defendant who already sat through one trial, but the law on this point is settled.
The Deadline for a Retrial
In federal court, the Speedy Trial Act requires that any retrial begin within 70 days of the date the mistrial becomes final.11Office of the Law Revision Counsel. 18 USC 3161 – Time Limits and Exclusions Certain delays, such as time spent on pretrial motions or waiting for unavailable witnesses, do not count against that clock. If the prosecution misses the deadline without a valid exclusion, the defendant can move to dismiss the charges.
State courts have their own speedy trial rules, and timelines vary. The principle is the same everywhere: the government cannot leave a defendant in limbo indefinitely after a mistrial. The defendant’s bail or custody status generally carries over from the original case, though either side can ask the court to modify conditions.
What the Prosecution Decides Next
Once a mistrial is declared, the prosecution picks from three paths: retry the case, offer a plea deal, or drop the charges. The choice often matters more to the outcome than anything that happened at trial.
Retrying the Case
Prosecutors frequently try to learn the jury’s numerical split, even informally. An 11-to-1 vote for conviction signals a strong case and makes retrial attractive. An 11-to-1 vote for acquittal sends the opposite message. A close split like 7-to-5 is harder to read. The severity of the alleged crime weighs heavily too. Violent felonies and cases with significant public safety concerns almost always get retried. Lower-level offenses with weak evidence are more often resolved another way.
Negotiating a Plea Deal
A hung jury gives the defense real leverage it did not have before trial. The prosecution has now seen its case tested in front of jurors and found wanting, at least partially. Defense attorneys use that to negotiate reduced charges or lighter sentences. From the prosecution’s side, a plea avoids the cost and uncertainty of a second trial while still securing some form of accountability. Many cases resolve this way after a hung jury.
Dismissing the Charges
Sometimes the prosecution concludes that retrial is not worth pursuing. Witnesses may have become unavailable, key evidence may have been undermined during the first trial, or the jury split may suggest the case is not provable beyond a reasonable doubt. In those situations, the prosecution can dismiss the charges. Dismissal is the best realistic outcome after a hung jury, but it is not the same as an acquittal and does not prevent charges from being refiled later if new evidence surfaces.
The Toll on the Defendant
Whichever path the prosecution takes, the defendant carries the burden in the meantime. Legal fees accumulate with a second round of trial preparation. The emotional weight of unresolved charges lingers. Employment and personal relationships suffer under the cloud of pending criminal proceedings. The system treats a hung jury as a procedural reset. For the person at the defense table, it feels closer to starting over.