What Is a Hung Jury and a Mistrial?

A hung jury is a jury that cannot agree on a verdict after real, good-faith deliberation — not guilty, not not guilty, just stuck. When that happens, the judge will typically declare a mistrial, which is not a verdict at all. It simply means the trial ended without a result. Unlike an acquittal (a jury finding of "not guilty"), a mistrial from a hung jury almost always means the prosecution can retry you on the same charges, because your protection against double jeopardy generally doesn't kick in until a case is actually decided.

What a hung jury actually is

Jurors must reach a unanimous verdict to convict in federal court and, for serious offenses, in state courts as well; only certain minor offenses in some states may permit a non-unanimous verdict, so check how your jurisdiction handles this. Sometimes jurors argue, reconsider, and eventually land on a unanimous decision. Other times, after hours or days of deliberation, some jurors are firmly convinced of guilt and others are firmly convinced of innocence — or simply unconvinced beyond a reasonable doubt — and neither side will move. When the jury reports back that it is deadlocked and further deliberation won't help, the judge has a decision to make.

A hung jury is not evidence of anything about the strength of the case. It just means twelve (or however many) ordinary people, following the instruction that guilt must be proven beyond a reasonable doubt, could not all get there together — or, on the flip side, could not all agree the prosecution failed to prove its case.

The Allen charge: one more push before giving up

Before declaring a mistrial, many judges will give the jury what's commonly called a "dynamite charge" or "Allen charge" — a supplemental instruction urging jurors to keep an open mind, listen respectfully to each other, and make a further effort to reach a unanimous verdict, without abandoning their own honest judgment. The idea is to make sure the jury isn't giving up prematurely before the judge accepts that it's truly deadlocked.

This instruction has to be balanced. A judge cannot coerce a verdict by pressuring holdout jurors, singling anyone out, or threatening to keep the jury sequestered indefinitely until they agree. If your lawyer believes an Allen-type instruction crossed the line into coercion, that can become an issue raised on appeal or in post-trial motions.

Mistrial vs. acquittal: why the difference matters

These two outcomes sound similar to a worried defendant, but they are legally very different:

• Acquittal — the jury (or judge, in a bench trial) actually decides the prosecution did not prove its case beyond a reasonable doubt. This is a final verdict. The case is over, and the Fifth Amendment's protection against double jeopardy bars the government from charging you again for the same offense.
• Mistrial from a hung jury — the jury never reaches a verdict at all. Nothing was decided. The trial is treated as if it didn't produce a result, which is why the case can usually start over.

A mistrial can also happen for reasons that have nothing to do with a deadlocked jury — a key witness becomes unavailable, a juror is exposed to outside information about the case, a prosecutor makes an improper statement that "poisons" the jury, or a defendant becomes seriously ill. The double-jeopardy analysis can differ depending on why the mistrial happened and whether the defense asked for it, so what applies to a hung-jury mistrial doesn't automatically apply to every kind of mistrial.

Can you be retried? Usually, yes

The Fifth Amendment protects you from being tried twice for the same offense, but that protection is built around a case actually being resolved. When a jury genuinely cannot reach a verdict and the judge declares a mistrial out of "manifest necessity," the law generally treats jeopardy as not having ended — so the prosecution is free to retry you before a new jury. This is one of the most well-settled rules in American criminal procedure and it surprises a lot of people, because it feels like "getting tried twice for the same thing." Legally, it isn't the same thing as being retried after an acquittal, because nothing was ever decided the first time.

The prosecution isn't required to retry the case, though. After a hung jury, the prosecutor has to weigh the cost of another trial, how close the vote was, how strong the evidence looked in practice, and whether victims or witnesses want to go through it again. It's common for prosecutors to:

• Retry the case with the same charges
• Offer a plea agreement to resolve it without another trial
• Reduce or drop some charges
• Dismiss the case entirely, especially if the jury was heavily lopsided toward acquittal

There is no fixed number of retries allowed after repeated hung juries — as a practical (not constitutional) matter, courts and prosecutors sometimes conclude that trying a case a third or fourth time isn't worthwhile, but there's no automatic cutoff, and this varies by case and jurisdiction.

What to do if your case ends in a hung jury or mistrial

1. Talk to your defense lawyer immediately about next steps. They need to find out from the prosecutor whether the case will be retried, and how soon.
2. Ask about your release status. If you were out on bail or bond, confirm those conditions continue, change, or need to be revisited before any retrial date.
3. Preserve everything from the first trial. Notes on jury questions, exhibits, witness testimony, and any issues with jury instructions can shape strategy for a retrial or support a motion to dismiss.
4. Discuss whether a motion to dismiss is realistic. These rarely succeed after an ordinary hung-jury mistrial, but your lawyer may see case-specific grounds worth raising, especially if the mistrial resulted from prosecutorial misconduct rather than a genuine deadlock.
5. Weigh a plea offer honestly, if one comes. A near-hung result (for example, a jury reportedly split heavily toward acquittal) can change the prosecution's leverage and its willingness to offer better terms — but that's a strategic call only you and your lawyer should make together.
6. Watch for deadlines. If a new trial date, hearing, or filing deadline is set, treat it as firm. Missing a court date after release on bail can itself create new legal trouble.

If you don't currently have a lawyer, or you're unhappy with the one you have, get that resolved before any retrial is scheduled — a second trial deserves the same serious preparation as the first.

The bottom line

A hung jury means the jury couldn't agree, not that you were found innocent or guilty. The judge declares a mistrial, the case legally resets, and — outside of unusual misconduct situations — the prosecution can typically bring the same charges again in front of a new jury without violating double jeopardy. Whether they actually will depends on the strength of the evidence, the vote split, and the prosecutor's own judgment call.

This article is general legal information about how hung juries and mistrials work, not legal advice for your specific situation, and reading it does not create an attorney-client relationship. If you are facing a possible retrial, talk to a criminal defense lawyer as soon as possible.