A hung jury is a criminal jury that can’t reach the unanimous verdict needed to convict or acquit, even after extended deliberation.1Justia Supreme Court. Ramos v. Louisiana, 590 U.S. ___ (2020) When that deadlock becomes clear, the judge declares a mistrial and discharges the jurors. The defendant walks out without a conviction and without an acquittal, and the prosecutor decides whether to try the case over again, offer a plea, or drop the charges.
How a Hung Jury Happens
Deliberations are private. No one outside the jury room knows what’s going on until the foreperson sends a note, and if that note says the jury can’t agree, the judge has a few moves before ending the trial.
The first is usually to send jurors back with encouragement to keep talking. If that fails, many judges can deliver what’s called an Allen charge, named after an 1896 Supreme Court case. The instruction asks jurors to reexamine their positions and seriously consider each other’s arguments, while making clear that no one should abandon a sincerely held belief just to reach a verdict. The point is to break a logjam without pressuring anyone into caving.
The Allen charge is controversial. Critics argue it puts invisible pressure on minority holdouts because the instruction implies the jury should reach a verdict, even though no such rule exists. A handful of states have banned the charge; others have softened its wording. Where it’s allowed, judges typically give it only once. If the jury returns still deadlocked, the judge declares a mistrial.
There’s no fixed number of hours or days jurors must deliberate before a judge accepts a deadlock. Judges weigh the complexity of the case, the length of the trial, and how long the jury has already been working. A short, straightforward trial might produce a legitimate deadlock in a few hours. A six-week fraud case might warrant days more.
What a Mistrial Means for You
A mistrial from a hung jury is neither a win nor a loss. No conviction means no sentence. But no acquittal means the charges don’t go away. Your legal status resets to roughly where it stood before trial: still presumed innocent, still facing active criminal charges.
That difference matters. An acquittal is permanent. Once a jury returns a not-guilty verdict, the case is over for good and you can’t be retried for the same offense. A hung jury offers no such finality. You leave the courtroom in limbo, waiting to find out whether the prosecutor takes another shot.
Bail and custody conditions can also come back into play. In the federal system, the judge can review and modify release conditions at any time before trial, including after a mistrial.2Office of the Law Revision Counsel. 18 U.S. Code 3142 – Release or Detention of a Defendant Pending Trial A defendant who was out on bail usually stays out, though the judge could tighten or loosen the terms. A defendant in custody may request a new bail hearing, especially if the deadlock suggests the case isn’t airtight.
What the Prosecutor Does Next
After a mistrial, the decision belongs to the prosecutor. No judge or rule forces a retrial. The prosecutor weighs the evidence, the jury’s apparent split, and practical factors like cost and witness availability.
Retry the Case
Starting over with a new jury is the most common choice when the evidence looks strong. The jury’s vote split informally shapes that call. A jury that was 11–1 for conviction signals something very different from one that split 6–6. Prosecutors who retry tend to sharpen their presentation the second time around, and retrials lean toward conviction more often than not because the prosecution has essentially had a dress rehearsal.
Offer a Plea Deal
A hung jury exposes cracks, and both sides know it. The prosecutor may offer a plea bargain, letting the defendant plead guilty to a lesser charge in exchange for a lighter sentence. For the government, it locks in a conviction without paying for a second trial. For the defendant, it eliminates the risk that a new jury does convict. Plea terms after a hung jury tend to be more favorable to the defendant than offers made before trial.
Drop the Charges
Sometimes the prosecutor decides the case isn’t worth pursuing again. Key witnesses may have moved or become uncooperative. Physical evidence may have weakened. The deadlock itself may signal the proof was never strong enough. When conviction looks unlikely even with a fresh jury, dismissing the charges is the pragmatic choice. In most jurisdictions, prosecutors can refile later if new evidence surfaces before the statute of limitations runs out.
Why a Retrial Isn’t Double Jeopardy
The Fifth Amendment says no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.”3Law.Cornell.Edu. Fifth Amendment That sounds like it should block a retrial. It doesn’t, because of how the Supreme Court has defined when jeopardy begins and ends.
The foundational case is United States v. Perez, decided in 1824. The Court held that discharging a jury that cannot agree on a verdict does not bar trying the defendant again for the same offense. The reasoning was blunt: “The prisoner has not been convicted or acquitted, and may again be put upon his defence.”4Justia Supreme Court. United States v. Perez, 22 U.S. 579 (1824) Jeopardy attaches when the jury is sworn, but it doesn’t resolve until a verdict is delivered. A hung jury produces no verdict, so the original jeopardy continues into the next trial rather than triggering a new, prohibited round.
One consequence is startling: there’s no constitutional cap on how many times a prosecutor can retry a case after successive hung juries. If the first jury hangs and the second hangs, the government can try a third time, and a fourth. In practice, prosecutors almost never pursue more than two or three trials. Cost, public scrutiny, and diminishing returns make endless retrials unsustainable even where they’re legally permitted.
Deadlines for a Retrial
While the Constitution doesn’t limit the number of retrials, federal law imposes a timeline. Under the Speedy Trial Act, a retrial after a mistrial must begin within 70 days of the date the mistrial becomes final. If witnesses are unavailable or the passage of time makes a 70-day start impractical, the court can extend that window to 180 days.5Office of the Law Revision Counsel. 18 U.S. Code 3161 – Time Limits and Exclusions Certain delays, such as time spent on pretrial motions, don’t count against the clock.
If the prosecution misses these deadlines, the defendant can move to dismiss. Whether the dismissal is permanent or allows refiling depends on the circumstances. Most states have their own speedy trial rules with different timelines, so the exact deadline depends on whether the case sits in federal or state court.
When the Jury Hangs on Only Some Charges
Cases often involve more than one charge. A defendant might face three counts, and the jury might reach unanimous verdicts on two while deadlocking on the third. Federal rules allow this. The jury can return a verdict on any count where it has agreed, and the judge declares a mistrial only on the count or counts where it is stuck.6Federal Rules of Criminal Procedure. Rule 31 – Jury Verdict The prosecution can then retry the defendant on the unresolved charges while the completed verdicts stand.
That creates complicated situations. You might be convicted on one count and face a retrial on another, serving a sentence while preparing for a new trial. Defense attorneys sometimes use the partial verdict as leverage. If the jury convicted on a lesser charge but hung on the most serious one, the prosecutor may drop the unresolved count rather than spend resources on an uncertain second trial.
How Often This Actually Happens
Hung juries are relatively rare. The most widely cited research, a landmark study of over 3,500 criminal trials, found a hung jury rate of about 5.5 percent. More recent estimates vary by jurisdiction but have stayed in that general range. The rate tends to run slightly higher in cases involving complex evidence or emotionally charged offenses where jurors hold strong personal convictions.
The low frequency is partly by design. The Allen charge, extended deliberation, and social pressure in the jury room all push toward consensus. And the overwhelming majority of criminal cases never reach a jury at all. Roughly 90 to 95 percent of federal criminal cases resolve through plea bargains, so the small share that go to trial already represents cases where the parties couldn’t agree on a resolution. Even within that group, most juries find a way to a verdict. When they can’t, it usually signals a genuinely close case where reasonable people looked at the same evidence and came to different conclusions.