About 34% of hung jury cases are retried, according to the most-cited study on what percentage of mistrials end up back in court. That figure comes from an analysis of 453 hung jury cases, which found roughly one-third went to a second trial, another third were resolved by plea bargain, and about one in five were dismissed outright. No single federal database tracks every mistrial outcome, so the available numbers come from targeted research rather than a government report.
The Full Breakdown of What Happens After a Mistrial
The 453-case study, which looked at hung jury cases from 1996 to 1998, found these dispositions:
- Retried before a jury: 32%
- Retried before a judge in a bench trial: 2.4%
- Resolved by plea bargain: 31.8%
- Dismissed entirely: 21.6%
- Other dispositions: 12.2%
Add the jury and bench retrials together and you get the roughly 34% figure. The “other” category covers things like transferred cases, defendants who absconded, and charges consolidated into other pending matters.
A separate finding from the National Center for State Courts puts the broader context in view: about 6% of cases that go to trial end with a hung jury, and another 4% end in mistrials declared for other reasons. So mistrials themselves are uncommon, and when they do happen, most do not result in a second trial.
Why the Retrial Rate Isn’t Higher
Prosecutors do not automatically refile after a mistrial. The decision turns on several practical factors, and the balance often tips away from a second trial.
Evidence strength is the first consideration. If the first trial exposed weaknesses, a retrial just gives the defense a second shot at the same soft spots. A hung jury itself signals that at least one reasonable person had doubts, and prosecutors read that signal carefully. New evidence or better-prepared witnesses can shift the calculation, but a suppressed exhibit or an unavailable witness can make the case weaker the second time.
Witness fatigue drives many decisions, particularly in violent crime and sexual assault cases. Testifying is grueling, and some witnesses refuse to go through it twice. When a case hinges on one person’s account, that person’s willingness often decides whether the retrial happens at all.
Cost and caseload matter more than prosecutors usually acknowledge. A multi-week trial burns resources that could resolve dozens of other cases. Offering a plea deal after a mistrial is sometimes less about evidence than about the opportunity cost of running the whole production again. In complex cases with expert witnesses and forensic exhibits, the bill for a single retrial can reach six figures for each side.
Charge severity pulls the other way. Homicide, sexual assault, and high-profile cases get retried at higher rates because the stakes justify the investment. A minor drug charge that hung is far more likely to end in a plea or a dismissal.
When a Retrial Is Legally Blocked
The Fifth Amendment’s double jeopardy clause protects people from being tried twice for the same offense,1Congress.gov. Amdt5.3.1 Overview of Double Jeopardy Clause but most mistrials do not trigger that protection because no verdict was ever reached. The Supreme Court held in 1824 that when a judge has a genuine need to end a trial early, the prosecution gets another chance.2Justia. Reprosecution Following Mistrial
The governing standard is “manifest necessity.” The judge must have a sufficiently serious reason for the mistrial, which the Supreme Court has described as requiring a “high degree” of necessity rather than mere convenience.3Justia. Arizona v Washington, 434 US 497 (1978) A deadlocked jury is the textbook example. A mistrial declared simply because the trial was going badly for the prosecution would not qualify.
One narrow exception does bar retrial: when the prosecution deliberately provoked the mistrial. In Oregon v. Kennedy, the Supreme Court held that if a prosecutor intentionally pushed the defense into requesting a mistrial, the government cannot try the case again. Sloppy or aggressive conduct is not enough; the prosecutor’s actual goal must have been to force a do-over.4Library of Congress. Oregon v Kennedy, 456 US 667 (1982)
Courts apply the strictest scrutiny when a mistrial stems from missing prosecution evidence or looks like an attempt to wear the defendant down through repeat proceedings.3Justia. Arizona v Washington, 434 US 497 (1978)
How Many Times the Government Can Retry
There is no constitutional cap on retrials after successive hung juries. Double jeopardy does not apply when jurors fail to reach a verdict, so in theory the prosecution can keep trying.5Northwestern University Law Review. Hung Out to Try: A Rule 29 Revision to Stop Hung Jury Retrials
In practice, cases rarely survive more than two or three attempts. Each hung jury makes the next retrial harder to justify, and a pattern of deadlocks signals that reasonable people have real doubts about guilt. Some judges will press prosecutors to reconsider after repeated failures, though they lack formal authority to force a dismissal. High-profile cases have occasionally been tried three, four, or more times before reaching a resolution.
How Soon a Retrial Must Happen
Federal cases run on the Speedy Trial Act, which requires a retrial to begin within 70 days after the mistrial declaration becomes final.6Office of the Law Revision Counsel. 18 USC 3161 – Time Limits and Exclusions That deadline sounds tight, but the statute pauses the clock for competency evaluations, pretrial motions, interlocutory appeals, and trials on other charges against the same defendant. If the government misses the deadline, the defendant can move to dismiss, and the judge decides whether that dismissal is permanent or allows refiling.
State courts set their own timelines, which vary widely. Some mirror the federal model; others rely on the constitutional speedy trial standard, which is more flexible. The Sixth Amendment applies to retrials but does not fix a specific number of days. Courts weigh how long the delay lasted, why it happened, whether the defendant objected, and whether the delay actually caused harm.7Constitution Annotated. Overview of Right to a Speedy Trial
Whether Mistrials for Other Reasons Follow the Same Pattern
The 34% retrial figure comes specifically from hung jury cases. Mistrials declared for other reasons, such as juror misconduct or procedural errors, may follow different patterns, and comprehensive data on those categories is harder to find. Anecdotally, prosecutors are more likely to retry after a procedural glitch than after a jury that could not agree, because a fixable error says nothing about how strong the evidence actually was. A jury that split down the middle, by contrast, tells the prosecution exactly how its case landed with twelve ordinary people.