If a jury cannot reach a verdict, the judge declares a mistrial and the case starts over from zero. The defendant has not been convicted and has not been acquitted. The charges remain active, and the prosecution decides what to do next: retry the case before a new jury, negotiate a plea, or drop the charges altogether. What happens if a jury cannot reach a verdict depends almost entirely on that choice.
A criminal conviction requires every juror to agree. The Supreme Court confirmed in Ramos v. Louisiana (2020) that the Sixth Amendment demands a unanimous verdict in both federal and state criminal trials.1Constitution Annotated. Amdt6.4.4.3 Unanimity of the Jury When even one juror holds out and deliberations stall, the jury is “hung.”
What the Judge Does Before Declaring a Mistrial
A deadlock does not end the trial right away. The judge first asks the foreperson whether more time might help, without asking about the numerical split or which way the majority leans.2U.S. Court of Appeals for the Third Circuit. Chapter 9 – Supplemental Instructions
If the foreperson says agreement is still possible, the judge can send the jurors back and may give a supplemental instruction known as an “Allen charge,” named after the 1896 Supreme Court case Allen v. United States.3Justia. Allen v. United States, 164 U.S. 492 The instruction asks jurors to reconsider their positions with an open mind and listen to one another, while making clear that no one should abandon a genuine belief just to end deliberations.4Ninth Circuit District & Bankruptcy Courts. Manual of Model Criminal Jury Instructions – 7.7 Deadlocked Jury Courts handle Allen charges carefully because a poorly worded one can veer into coercion of holdout jurors.
If deliberations still produce nothing, the judge discharges the jury and declares a mistrial. There is no fixed time limit for how long deliberations must continue; the key factor is the jury’s own assessment that further discussion will not produce agreement.
What a Mistrial Means for the Defendant
A mistrial wipes the trial proceedings away. The case reverts to its pre-trial status. The defendant has not been found guilty, has not been acquitted, and the charges remain active and unresolved.
That creates real uncertainty. A defendant out on bail typically remains on bail, though the court can adjust the amount based on changed circumstances. A defendant held in custody may stay in custody. The practical result is limbo: still presumed innocent, still facing charges, and waiting to learn whether the government plans to run the whole trial again.
When the Jury Agrees on Some Charges but Not Others
Many criminal cases involve multiple charges, and a jury does not have to deadlock on all of them. Federal Rule of Criminal Procedure 31(b) allows a jury to return a verdict on the counts where it has reached agreement while reporting that it cannot agree on the rest.5Legal Information Institute. Federal Rules of Criminal Procedure Rule 31 – Jury Verdict Most states have similar procedures.
Verdicts on resolved counts stand. If the jury convicts on two counts and deadlocks on a third, the two convictions are final and the mistrial applies only to the unresolved count. The prosecution then decides whether to retry the defendant on that remaining charge. A conviction on the major counts sometimes makes the prosecution less interested in spending resources to retry a lesser one.
Why Retrial Is Not Double Jeopardy
The Fifth Amendment’s Double Jeopardy Clause prevents the government from prosecuting someone twice for the same crime after an acquittal. A hung jury is not an acquittal. The Supreme Court settled the question in United States v. Perez (1824), holding that discharging a deadlocked jury “constitutes no bar to further proceedings” because the defendant was “not convicted or acquitted, and may again be put upon his defence.”6Justia. United States v. Perez, 22 U.S. 579
Because no acquittal occurred, a retrial is treated as a continuation of the original prosecution.7Constitution Annotated. Amdt5.3.4 Re-Prosecution After Mistrial A defendant walking out of a hung-jury trial is not free of the charges.
What the Prosecution Does Next
After a mistrial, the decision belongs to the prosecutor. The choice usually comes down to why the first jury split.
Retry the Case
The prosecution can bring the case before a new jury. This is the most likely outcome when the first jury was heavily lopsided toward conviction. An 11-1 vote for guilty gives the prosecutor reason to believe a different panel will reach a verdict. The government can retry the defendant on any count where the jury could not agree.5Legal Information Institute. Federal Rules of Criminal Procedure Rule 31 – Jury Verdict
Negotiate a Plea Deal
A hung jury signals to both sides that the next verdict is uncertain. That uncertainty can push the prosecution to offer a plea to a lesser charge, locking in some form of conviction without another trial. The defense may accept, particularly when the defendant faces serious prison time on the original charges and a reduced plea offers a more predictable result.
Dismiss the Charges
Sometimes the smarter move is to walk away. If the evidence looked weaker at trial than on paper, or if the jury split evenly, the prosecutor may conclude that a conviction is unlikely no matter how many times the case is tried. The cost of a retrial, the toll on witnesses, and the public interest in allocating resources all factor in. A 6-6 split is a strong signal that reasonable people genuinely disagree about the evidence.
How Long the Prosecution Has to Retry
The government cannot sit on the case indefinitely. Under the federal Speedy Trial Act, a retrial must begin within 70 days of the mistrial declaration.8Office of the Law Revision Counsel. 18 U.S. Code 3161 – Time Limits and Exclusions Certain delays are excluded from the count, such as time spent on pretrial motions or continuances granted for good cause, but the clock is real. If the government misses the deadline, the defendant can move to dismiss.
Most states have their own speedy trial rules with varying timelines. The point is the same everywhere: unreasonable delay in bringing a retrial gives the defense grounds to push back.
The Cost of a Second Trial
A retrial can be financially punishing. Defendants who hired private counsel face a second round of attorney fees, because preparing for a new trial, selecting a new jury, and presenting the case again is largely done from scratch. Expert witnesses need to be retained and prepared again. Investigators may need to revisit the facts.
Defendants who cannot afford counsel will have a public defender appointed, but indirect costs remain: missed work, travel, childcare, and the ongoing disruption of unresolved criminal charges. For the government, the cost includes prosecutor time, courtroom resources, witness coordination, and sometimes flying in witnesses from other jurisdictions. These realities often push both sides toward plea negotiations rather than a second trial.
Capital Cases Work Differently at Sentencing
Death penalty trials have two phases. The jury first decides guilt, then moves to a separate sentencing phase where it decides whether the defendant should be executed. Both phases require unanimity. If the jury unanimously convicts but then deadlocks during sentencing, the defendant does not face a second sentencing jury. The court imposes a lesser sentence instead.9Office of the Law Revision Counsel. 18 U.S. Code 3593 – Special Hearing To Determine Whether a Sentence of Death Is Justified
Under the federal death penalty statute, if the jury cannot unanimously recommend death, the judge sentences the defendant under the normal sentencing framework, which usually means life imprisonment or life without release.10Legal Information Institute. Jones v. United States Most states with the death penalty follow the same approach. Defense attorneys in capital cases sometimes focus their efforts on persuading even one juror to hold out against death.
Civil Cases Follow Different Rules
Everything above describes criminal trials. In federal civil court, a verdict must be unanimous unless the parties agree ahead of time to accept a non-unanimous result.11Legal Information Institute. Federal Rules of Civil Procedure Rule 48 – Number of Jurors; Verdict; Polling Many state courts allow civil juries to reach a verdict without full unanimity, with some requiring agreement from only five of six jurors or ten of twelve.
When a civil jury does deadlock, the judge can direct further deliberation or declare a mistrial and order a new trial. Double jeopardy protections do not apply in civil litigation, so there is no constitutional barrier to retrying a civil case after a hung jury. The main constraint is cost, and parties often settle rather than go through the process again.