In California criminal trials, a hung jury is when the jurors cannot reach a unanimous agreement as to the verdict. All jurors have to agree on guilt or innocence to render a trial complete.
(Hung juries can also occur in civil trials such as for personal injury, though only three-fourths of jurors in a civil trial have to agree to render a verdict.)1
What happens if there is a hung jury?
If there is a hung jury in a California criminal case, the following may happen:
- the judge may ask the jurors to deliberate or consider the case further,
- the judge may schedule a hearing where the jurors can ask questions to the parties involved,
- the prosecution may decide to retry the case,
- the prosecution may decide to dismiss the case or enter into a plea bargain with the defendant, or
- the judge may declare a mistrial.
If a judge does declare a mistrial or retrial due to a deadlocked jury, the prosecution has the opportunity to retry the case or ask for a new trial. Though the prosecution is under no obligation to do so.
If, for example, the jurors in the hung jury were stuck at 11 votes in favor of acquittal and only one juror would have found the defendant guilty, the prosecution may see that as the writing on the wall and decide not to try the case again.
Is it double jeopardy to retry a case after a mistrial?
Not necessarily. The Double Jeopardy Clause has been written into the Fifth Amendment of the United States Constitution.2
The double jeopardy clause guarantees that there will be
- no prosecution after acquittal for the same offense,
- no double convictions for the same offense and,
- no multiple punishments for the same offense.
The Clause usually does not apply in the case of a hung jury and a prosecutor’s decision to retry a case.
If there is some “legal necessity” that required a jury to be discharged in California, a case may be retried.3 In these circumstances, the double jeopardy defense is not available.
A legal necessity may arise from
- a juror’s illness or other incapacity,
- a juror’s absence,
- a hung jury, or
- the incapacity or absence of the defendant, defense counsel, or the judge.4
What is jury misconduct?
In California, jury misconduct is defined as any conduct that conflicts with the judge’s instructions as to how jurors should perform their duties.
This type of conduct can include (but is not limited to) a juror:
- speaking to people about the case who are not on the same jury,
- speaking to a fellow juror about the case other than when the full jury is together engaged in an official session of deliberations,
- refusing to deliberate,
- conducting an independent (and unauthorized) investigation about the facts of the case, and/or
- purposely concealing personal beliefs and/or experiences that could influence impartial deliberations.
Once a judge determines that one or more jurors have engaged in jury misconduct and that that misconduct has interfered with the defendant’s right to a fair trial, the judge has several options.
The judge may:
- admonish the jury about the misconduct,
- discharge the tainted juror (and replace him/her with an alternate juror or, if no alternate juror is available, proceed with an 11-member jury if the parties stipulate to doing so),
- discharge the entire jury panel, or
- declare a mistrial (and the judge can either dismiss the charge(s) or order a retrial of the case).
Can the judge require the jurors to reach a verdict?
Although California judges provide guidance and instructions to jurors during a criminal trial, they cannot require or compel jurors to reach a specific verdict. The principle of jury independence is a central aspect of the legal system meant to ensure a fair and impartial trial.
Therefore, while judges can encourage jurors to engage in thorough deliberations and consider all the evidence presented, they cannot force jurors to agree or reach a unanimous verdict. Ultimately, it is the responsibility of the jurors to review the evidence, deliberate, and arrive at a verdict based on their individual assessments of the case.
Additional reading
For more in-depth information, refer to these scholarly articles:
- Jury Unanimity in California: Should it Stay or Should it Go – Loyola of Los Angeles Law Review.
- How Much Justice Hangs in the Balance – A New Look at Hung Jury Rates – Judicature.
- The Hung Jury: The American Jury’s Insights and Contemporary Understanding – Criminal Law Bulletin.
- Should Jury Verdicts Be Unanimous in Criminal Cases – Oregon Law Review.
- Retrial After a Hung Jury: The Double Jeopardy Problem – University of Pennsylvania Law Review.
Legal References:
- Black’s Law Dictionary, Sixth Edition – “Hung jury.” California Constitution Article I – Declaration of Rights Section 16.
- U.S. Const. amend. V.
- See California Penal Code 1141 PC.
- See, for example, People v. Fields (Cal. 1996) 914 P.2d 832.
