Key Takeaways
- A hung jury occurs when jurors cannot agree on a unanimous verdict, resulting in a mistrial – not an acquittal.
- Prosecutors can retry the defendant, drop the charges, or pursue a plea deal after a hung jury.
- Double jeopardy does not apply: the same charges can be filed again after a mistrial.
- Roughly 6% of U.S. felony trials end in a hung jury (National Center for State Courts, 2023).
- Both sides gain strategic information from the first trial that shapes how they approach the retrial.
What is a Hung Jury?
A hung jury is a jury that cannot agree on a verdict after a reasonable period of deliberation. When no unanimous decision is reached, the judge declares a mistrial – the trial ends without a conviction or an acquittal.
Most U.S. federal criminal trials and the majority of state courts require a unanimous 12-0 verdict to convict or acquit. If even one juror refuses to agree with the others, the jury is “hung.”
The judge will typically send jurors back to deliberate further before officially declaring the mistrial, but once it is clear that no agreement is possible, the case stops there.
A hung jury is not a win for the defendant and not a loss. It is a procedural dead end that forces both sides to decide what comes next.
Why Juries End Up Deadlocked
Juries hang for several distinct reasons, and the cause often shapes what happens afterward.
Genuine disagreement on the facts. Jurors may weigh the same evidence differently. One juror may find a witness credible; another may not. This type of deadlock often signals that the prosecution’s case was not strong enough to convince everyone beyond a reasonable doubt.
One or two holdouts against the majority. A single juror who disagrees with the other eleven is enough to hang the jury. Research from the University of Chicago Law Review (2010) found that the initial vote taken in the jury room predicts the final verdict in roughly 90% of cases – which means a strong minority holdout is relatively rare but decisive when it happens.
Confusion about jury instructions. Judges deliver legal instructions before deliberation. When those instructions are unclear, jurors can reach different conclusions about what standard of proof actually applies.
Juror misconduct or bias. In some cases, a juror may have concealed a bias during selection or been exposed to outside information. This can produce a deadlock that has less to do with the evidence and more to do with an individual juror’s predetermined position.
What a Judge Does When a Jury is Stuck?
When jurors report that they cannot agree, the judge does not immediately declare a mistrial. The process follows a specific sequence.
Step 1: The judge asks how the vote stands (without specific numbers). The judge asks whether further deliberation could lead to a verdict. Jurors are not required to disclose the split – only whether progress is possible.
Step 2: The judge issues an Allen charge. Also called a “dynamite charge” or “hammer charge,” this is a supplemental instruction that urges jurors to consider each other’s perspectives and make a genuine effort to reach agreement.
The Allen charge was established by the U.S. Supreme Court in Allen v. United States (1896) and remains standard practice in federal courts.
Step 3: If deliberations still fail, the judge declares a mistrial. The judge records the hung jury, formally discharges the jurors, and sets a hearing to determine next steps.
This entire process from the first deadlock report to the official mistrial can take hours or several additional days.
What Happens to the Defendant After a Hung Jury?
The defendant goes free for the time being, but the case is not over. Three outcomes are possible.
| Outcome | What It Means | How Common |
|---|---|---|
| Retrial | Prosecutors refile the charges and try the case again with a new jury | Most common in serious felony cases |
| Charges dropped | Prosecution decides the case is not worth retrying | More common when evidence was weak or the jury split was close |
| Plea deal | Both sides negotiate an agreement outside of court | Often happens when a retrial would be expensive or uncertain |
The decision rests entirely with the prosecution. Defense attorneys often use a hung jury as leverage in plea negotiations; it signals that the prosecution could not convince a full jury the first time, which weakens their position going into a retrial.
Does Double Jeopardy Apply to a Hung Jury?
No. Double jeopardy does not prevent a retrial after a hung jury.
The Fifth Amendment’s double jeopardy clause bars the government from trying a person twice for the same crime after a verdict – either a conviction or an acquittal.
A hung jury produces neither. Because the trial ended without a final decision, the government retains the right to retry the defendant for the same charges.
The U.S. Supreme Court confirmed this in Richardson v. United States (1984), ruling that a mistrial due to a hung jury does not constitute an acquittal and does not trigger double jeopardy protections.
This distinction matters. A defendant who hears “hung jury” may feel relieved, but legally they remain in the same position they were before the trial began.
How Common Are Hung Juries in the United States
Hung juries are relatively rare, but they happen often enough to be a real factor in trial strategy.
According to the National Center for State Courts (2023), approximately 6% of felony jury trials in the U.S. result in a hung jury. The rate varies significantly by jurisdiction and charge type:
- Capital murder cases see higher deadlock rates, partly because jurors are screened for willingness to impose the death penalty, which can create a more polarized panel.
- Drug trafficking cases have a lower hung jury rate, often because physical evidence is more straightforward to evaluate.
- Sexual assault cases show above-average deadlock rates, frequently due to credibility disputes when there is no physical evidence.
A 2010 study published in the Journal of Empirical Legal Studies found that three-quarters of hung juries involved cases where the initial jury vote was split 9-3 or closer.
Hung Jury vs. Mistrial: What Is the Difference
A hung jury is one specific type of mistrial, but not all mistrials result from a deadlocked jury.
A mistrial is a broader term for any trial that ends without a valid verdict. Causes include juror misconduct, a biased juror discovered mid-trial, improper statements by an attorney, or the death of a juror.
A hung jury refers only to the deadlock itself – the jury’s inability to agree. Every hung jury produces a mistrial, but a mistrial can happen for reasons that have nothing to do with jury deliberation.
The practical difference: the type of mistrial affects what the judge records, how quickly a retrial can be scheduled, and whether the original jury instructions need to be revised.
What Defense Attorneys and Prosecutors Do Differently at Retrial
A hung jury gives both sides information they did not have before the first trial.
Prosecutors know which arguments failed to convince at least some jurors. They may call different witnesses, present evidence in a different order, or adjust their opening statement to address the weakest points that emerged during the first trial.
Defense attorneys know the prosecution’s full strategy. Because the defense has already seen every piece of evidence presented, they can prepare more targeted cross-examinations and anticipate which arguments the jury will hear again.
Retrials after hung juries tend to be tighter and faster than the original trial. Both sides have less to discover and more to sharpen.
Common Mistakes People Make About Hung Juries
- Assuming the defendant was found innocent. A hung jury is not an acquittal. The defendant can be retried, and many are.
- Assuming one holdout juror is acting improperly. Disagreeing with the majority is not misconduct. Jurors are legally entitled – and expected – to vote their honest assessment of the evidence.
- Thinking the judge can force a verdict. A judge cannot instruct a jury to reach a specific conclusion or pressure individual jurors into changing their vote. The Allen charge encourages effort, not a particular outcome.
- Believing a hung jury means the charges were weak. A 10-2 split in favor of conviction means the prosecution almost succeeded. Prosecutors in that situation frequently retry the case with adjustments.