When jurors report that they are unable to reach a verdict, the judge typically delivers a supplemental instruction — sometimes called an Allen charge or "dynamite charge" — encouraging further deliberation. The judge may ask the foreperson about the numerical split without revealing which way the majority leans. If deliberations remain fruitless after the Allen charge and additional time, the judge will declare a mistrial. Courts must balance the interest in obtaining a verdict against the risk of coercing jurors into abandoning their conscientious views.
Jury Foreperson: "Your Honor, we have deliberated for three days and remain unable to reach a unanimous verdict." Judge: "I am going to ask you to return to the jury room and continue deliberating. Consider whether further discussion might help you reach agreement."
Judge: "Ladies and gentlemen, I understand you are having difficulty. Without telling me which way the majority leans, can you tell me your numerical division?" Foreperson: "We are split 10 to 2, Your Honor."
Judge: "I find that this jury is hopelessly deadlocked. I declare a mistrial. The jurors are thanked and excused. Counsel, we will schedule a status conference to discuss whether the government intends to retry this matter."
Students sometimes believe a hung jury is equivalent to an acquittal. It is not — the defendant may be retried because jeopardy has not terminated in the defendant's favor.
Allen v. United States, 164 U.S. 492 (1896)
Approved the supplemental jury instruction (Allen charge or "dynamite charge") urging deadlocked jurors to reconsider their positions, though cautioning against coercion.
United States v. Perez, 22 U.S. (9 Wheat.) 579 (1824)
Established that a hung jury constitutes "manifest necessity" for a mistrial, permitting retrial without violating the prohibition against double jeopardy.
Lowenfield v. Phelps, 484 U.S. 231 (1988)
Upheld a supplemental instruction to a deadlocked jury that did not specifically direct minority jurors to reconsider, finding it was not coercive under the totality of circumstances.
What happens when a jury is hung?
When a jury cannot reach a unanimous verdict after extended deliberation, the judge declares a mistrial. The case is not dismissed — the prosecution retains the option to retry the defendant. The judge may first give an Allen charge (dynamite charge) encouraging the jury to continue deliberating before declaring a mistrial.
Can the judge force a hung jury to keep deliberating?
The judge cannot compel a verdict but may encourage continued deliberation through a supplemental instruction (Allen charge). The judge must avoid coercion — the instruction should encourage minority jurors to reconsider but not surrender their honest convictions. If deliberations remain unproductive, the judge must eventually declare a mistrial.
Is double jeopardy a defense after a hung jury?
No. A hung jury resulting in a mistrial does not constitute jeopardy termination in the defendant's favor. The prosecution may retry the case without violating the Double Jeopardy Clause. However, the prosecution has discretion to decide whether retrial is worthwhile given resources and likelihood of conviction.
A mistrial is a trial that is terminated and declared void before a verdict is reached, due to a fun...
The verdict is the formal decision or finding made by a jury (or judge in a bench trial) on the fact...
Jury nullification occurs when a jury acquits a defendant despite believing the evidence proves guil...
Sequestration refers to the isolation of jurors from outside contact during trial or deliberations t...
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