If the jury is hung, the judge declares a mistrial and the case stops without a verdict. You are not convicted, not acquitted, and not free of the charges. What happens next is the prosecutor’s call: retry the case with a new jury, offer a plea deal, or drop the charges entirely.
Why One Juror Can Hang the Whole Case
A criminal conviction in the United States requires every juror to agree. The Supreme Court confirmed in Ramos v. Louisiana (2020) that the Sixth Amendment demands unanimous verdicts for serious offenses in both federal and state courts.1Supreme Court of the United States. Ramos v. Louisiana, 590 U.S. 83 (2020) If one juror refuses to vote with the others, the jury cannot convict. It also cannot acquit. That is a hung jury.
What the Judge Does Before Declaring a Mistrial
Judges do not accept a deadlock announcement on the first try. When the foreperson says the jury cannot agree, the judge usually brings everyone back into the courtroom and asks questions. How long have you been deliberating? Would more time help? Is the disagreement about the facts, the law, or both?
If the judge thinks the jury can still get there, the next step is often a supplemental instruction. The most familiar version is the Allen charge, named after the 1896 Supreme Court case Allen v. United States. It tells jurors to listen to one another with an open mind and reconsider their positions, while making clear that no juror should abandon a sincerely held belief just to reach a verdict.2Justia. Allen v. United States, 164 U.S. 492 (1896) Critics call it the “dynamite charge” because of its pressure to blast through disagreement, and many state courts have restricted or banned it. Federal courts still allow it.
If deliberations stay stuck after the supplemental instruction, the judge declares a mistrial. The jury is dismissed.
A Mistrial Is Not an Acquittal
This is the point most defendants need to hear clearly. A mistrial resets the case. The charges stand. If you were out on bail, those conditions typically continue. If you were in custody, you may stay there while the prosecution figures out what to do next.
The time, money, and strain of the first trial earn no credit toward whatever comes after. If the state decides to try again, you go through it again.
The Prosecutor’s Three Choices
After a mistrial, the next move belongs to the prosecution. There are three realistic paths, and the choice depends heavily on how the jury split and how strong the evidence looked in the courtroom.
Retry the Case
The state can start over with a new jury, new opening statements, and the same evidence presented again from the beginning. A retrial is most likely when the prosecution thinks the deadlock was a fluke, especially when the split heavily favored conviction. An 11-to-1 jury that nearly convicted will almost always produce a second trial.
Offer a Plea Deal
A hung jury hands the defense leverage it did not have before. The prosecution just spent weeks in court and failed to persuade twelve people. That failure makes a second trial look riskier, and prosecutors often respond by offering a plea to a lesser charge with a lighter sentence. Defense attorneys walking out of a hung jury know exactly where the state’s case cracked, which puts them in a much stronger negotiating position than they had going in.
Drop the Charges
The prosecution can also dismiss the case. This tends to happen when the first trial exposed a fatal weakness in the evidence, when a key witness has become unavailable, or when the charges are not serious enough to justify spending more public money on a second attempt. A dismissal ends it. You walk away free of those charges.
What Pushes the Decision One Way or the Other
The jury split matters more than almost anything else. A near-unanimous jury that leaned toward guilt signals the case is winnable and one or two holdouts blocked the result. A 7-to-5 split suggests the evidence itself is the problem, not the jury. Prosecutors pay close attention to these numbers even when they are not formally entitled to them.
The severity of the charges weighs just as heavily. A hung jury in a homicide case will almost always produce a retrial because the public interest in resolution is too high to walk away. A property crime with shaky proof is a different conversation.
The first trial also doubles as an unplanned dress rehearsal. The prosecution now knows which witnesses hold up under cross-examination and which fall apart, which exhibits land with jurors and which get ignored. If the state’s main witness came off as unreliable, retrying the case becomes a hard sell inside the office.
In federal cases, the Crime Victims’ Rights Act gives victims the right to confer with the prosecutor on major decisions, including whether to retry.3Department of Justice. Crime Victims’ Rights Act A victim who wants the case pursued can influence the decision, but the final call stays with the prosecutor.
Double Jeopardy Does Not Protect You From a Retrial
Most people assume the Constitution’s ban on double jeopardy stops the government from trying the same case twice. After a hung jury, it does not. The Supreme Court resolved this in United States v. Perez (1824), holding that discharging a jury that cannot agree does not bar a second prosecution for the same offense.4Justia. United States v. Perez, 22 U.S. 579 (1824)
The logic is that double jeopardy protects you only after a final verdict. A hung jury never produces one, so the first trial is treated as if it never finished. A retrial counts as a continuation of the original prosecution, not a new one. The Court called it a matter of “manifest necessity.”5Legal Information Institute. Reprosecution After Mistrial
How Many Times Can They Try You?
No statute or court rule caps the number of retrials after successive hung juries. Federal Rule of Criminal Procedure 31 says the government “may retry any defendant on any count on which the jury could not agree,” without stating a limit.6Legal Information Institute. Federal Rules of Criminal Procedure Rule 31 – Jury Verdict In theory a prosecutor could try the same case three, four, or more times.
In practice, repeated hung juries build pressure to stop. Each attempt costs the government more money, wears down witnesses, and makes the state look increasingly unable to prove the charge. Most offices will not pour resources into a case that has already failed to convince two juries. The limit is practical, not constitutional.
How Long Before a Retrial Has to Start
You are not left waiting indefinitely while the prosecution decides. In federal court, the Speedy Trial Act requires a retrial to begin within 70 days of the mistrial declaration.7Office of the Law Revision Counsel. 18 USC 3161 – Time Limits for Information or Indictment and for Trial Certain periods are excluded from the count, including time spent on pretrial motions, delays caused by the defense, and continuances granted for good cause, so the actual calendar time can run longer. The clock is still real, and missing it gives the defense grounds to move for dismissal.
State speedy-trial rules vary, but every jurisdiction imposes some deadline. If the prosecution seems to be stalling after a hung jury, your attorney should be tracking the dates closely. A missed deadline is one of the few things that can end a case outright.
When the Jury Agrees on Some Counts but Not Others
Multi-count cases add a wrinkle most defendants do not expect. A jury can reach a unanimous verdict on some counts and deadlock on others. Federal Rule of Criminal Procedure 31 lets the court accept a partial verdict on the resolved counts and declare a mistrial only on the ones left hanging.6Legal Information Institute. Federal Rules of Criminal Procedure Rule 31 – Jury Verdict The prosecution then decides whether to retry the unresolved counts on their own.
This can leave a defendant convicted on a lesser charge while still facing a retrial on the most serious one. The strategic math changes quickly, and anyone in that position has to weigh fighting the remaining count against negotiating a resolution that closes the whole file.
Hung Juries in Civil Cases
Civil juries can also deadlock, though the mechanics differ. In federal civil court, the default rule requires a unanimous verdict from at least six jurors, though the parties can agree beforehand to accept a non-unanimous result.8Legal Information Institute. Federal Rules of Civil Procedure Rule 48 – Number of Jurors; Verdict; Polling If the jury cannot reach unanimity, the judge can send them back to deliberate or declare a mistrial and order a new trial. Some state civil courts allow verdicts by a supermajority, which makes true deadlocks rare in those jurisdictions.
When a civil case hangs, neither side wins and the plaintiff has to decide whether to pay for a second trial. That financial reality pushes many civil cases toward settlement after a deadlock.