In California, a hung jury reaches a deadlock in deliberations and is unable to meet the legal bar to rendering a verdict. In civil litigation or personal injury cases, it takes three-fourths of the twelve jurors, or nine of twelve, to reach a verdict. In contrast, in a personal injury case, it takes twelve jurors to agree unanimously.

This article examines the procedural implications of a short-term impasse and the maneuvers you can employ in the long term, specifically within the California court system. The basis of this analysis is the California Constitution, Article I, Section 16, and the California Penal Code.

The areas covered are judicial interventions, the effects of a mistrial on your constitutional rights, and the prosecutorial discretion after a failed trial. You also learn how the termination of a trial without a verdict impacts your future legal status and your ability to negotiate a favorable outcome.

What Could Happen to the Hung Jury?

In a trial, the most stressful part of the litigation process is usually when the jury retires to deliberate. You wait hours or days before you know a decision has been made. Sometimes a verdict is unavailable. In this case, the jury foreperson notifies the judge that the jury cannot reach a consensus. At this particular point, the case reaches a stage of severe procedural scrutiny.

A judge will hardly believe the initial claim of an impasse. The court is interested in the trial to the end, as the resources spent by the state and the parties are enormous. As such, the judge will summon you and the opposing counsel to the courtroom to deliberate on the following strategy.

The judge can seek to salvage the trial by doing the following:

  • Requesting the jury spokesperson if there is anything that the court can do to help them decide.
  • Rereading some of the jury instructions or giving additional explanation on some of the confusing legal issues.
  • Allowing the attorneys to make further briefs on the areas of concern that the jurors are experiencing. This is a rare opportunity to address the holdouts with your legal team.
  • Issuing an Allen or Dynamite charge. If these interventions do not work, the judge will proceed to the so-called Allen/Dynamite charge. The judge will simply instruct the jurors to return to the deliberation room and reconsider their positions. The teaching urges the minority to be open-minded and to listen to the majority's reasoning. Although the Allen charge is a tool, the judge should be keen not to be coercive. This would provide grounds to appeal in the future if the judge imposes a verdict or coerces one of the jurors into changing their mind. You need to look out when the judge requests the jury to give their numerical division.
  • Asking for the numerical split of the jury. The judge could inquire about what the split is, but not which way you are leaning. When the foreperson declares it is 11-1 (eleven to one), the judge is more likely to send them back to work. If the division is 6-6, the judge will probably notice that the jury is indeed deadlocked.
  • Formally declaring a mistrial. When the judge is sure that further discussion will never lead to a verdict, they will officially declare a mistrial. This statement annuls the trial as though the proceedings had never taken place. The jury is dismissed, and you are now left with the case to be resolved differently.

Can a Retrial of a Case That Has Been Mistried Be a Double Jeopardy?

The first thing that comes to your mind is whether the Double Jeopardy Clause of the Fifth Amendment protects a person against a second trial. The widely held belief is that after a trial ends without a conviction, the state cannot prosecute you once again.

California regarding a hung jury. The concept of double jeopardy usually applies in cases of acquittal or conviction; since a hung jury results in neither, the jeopardy that occurred when the jury was first sworn in is said to persist until the subsequent trial. This legal theory is called legal necessity. The California courts have traditionally held that a deadlocked jury warrants the dismissal of the panel. Hence, prosecution is usually allowed to resume the process afresh.

This is a rule that is enshrined in California Penal Code Section 1141. The law clearly indicates that in every instance in which a jury is discharged or incapacitated to deliver a verdict by an accident or other reason, the case is subject to retrial. One such cause is a hung jury. The state is not obligated to retry the case on your approval. The prosecutor just put in a motion to adjourn the trial date.

Although this appears unjust, the case of United States v. Perez was settled by the United States Supreme Court several centuries ago. The court decided that the protection against double jeopardy does not bar a retrial if the first trial ends in a mistrial due to a deadlocked jury. The rationale is that the citizens are entitled to a full trial of a crime.

However, there is a fine point you ought to discuss with your lawyer. If the judge had declared a mistrial prematurely or without any objective legal necessity, a double jeopardy defense could, in fact, be a viable one. For example, when the judge instructed the jury to be dismissed after two hours of deliberation in a complicated murder case, and when he did not inquire whether the jury was actually at a crossroads, your lawyer might claim that the dismissal was not appropriate.

Under that very uncommon circumstance, the bar of double jeopardy may bar a second trial. In the vast majority of instances, however, you are likely to find the prosecution seriously thinking of a retrial. The pressure of your trial is high. Jury selection, opening statements, and witness testimony will have to be replayed. The state again bears the burden of proof, and you also must spend more time and money defending yourself.

What Is Jury Misconduct?

A hung jury does not necessarily come about due to a mere disagreement over the facts. A deadlock or mistrial sometimes occurs due to jury misconduct. Jury misconduct in California is any act that violates the oaths jurors have sworn or the instructions given by the judge.

Examples of jury misconduct include:

  • Conducting independent investigations. For instance, in an Orange County personal injury case, a juror engaged in misconduct after visiting the accident site to view the traffic lights. They must decide the case solely on the evidence presented in court.
  • Using the internet to research the parties. Another prevalent type of misconduct is jurors going online to research the defendant's criminal background or to learn legal terminology that had not been clarified to them.
  • Speaking to non-jurors about the case. Misconduct may also arise when the jurors talk to individuals who are not members of the jury concerning the case. This involves discussing the case with spouses or friends or even tracking it on social media. When a juror writes about the trial on a social media platform, he or she has contaminated the process.
  • Discussing the case prematurely. It is a violation to talk to a fellow juror about the case before the formal deliberation period has started. The jurors are not supposed to form or express their opinions until they have heard all the evidence, and the judge orders them to begin deliberations.
  • Refusing to deliberate. When a jury member is unwilling to deliberate thoroughly, it is also misconduct.
  • Purposely concealing personal beliefs. Failing to disclose biases during the jury selection (voir dire) process is a serious violation.

A sequence of hearings called evidentiary hearings or Chamberlain hearings will be held when misconduct is brought to the judge's attention. The judge will ask each juror whether the misconduct has occurred and whether it has impaired their right to a fair trial.

If the tainted juror is the only one, the judge can substitute the juror with an alternate juror. Where no other alternatives remain, or the entire panel is exposed to external information, the judge is expected to declare a mistrial. In such cases, the wrongdoing itself is the “legal necessity to terminate the trial.

It is a decisive point for you since a mistrial due to misconduct may have the same consequences as a hung jury. You can have a retrial, or the disturbance can be so significant that it will give your lawyer a bargaining chip to demand a dismissal.

The Influence of Numerical Split on Retrial Decision

Once the judge has declared a mistrial, the attention of your legal team becomes the so-called numerical split. Although the split does not alter the legal position in the case, it does change the political and strategic positions of the prosecutor or the plaintiff. Prosecutors are sensitive to their win-loss track records and litigation costs.

If the jury divided 11-1 in support of a conviction, the prosecutor will surely retry you. They consider a single dissenter to be an exception. They are convinced that a second jury will tend to find the last person unable to doubt. This situation is a second trial with an even more motivated prosecution team.

On the other hand, when it was 11-1 in favor of an acquittal, you had a strong position. That is what lawyers call the writing on the wall. Eleven citizens thinking you are not guilty or not liable is the indication to the state that their evidence is unsound in its core. When a prosecutor observes an 11-1 split in defense, they will mostly choose not to retry the case.

They understand that the possibility of twelve individuals concurring on conviction when the eleven who preceded them sought to acquit is statistically low. Your lawyer will also demand the dismissal of the charges at once in the interest of justice in such circumstances. The judge can dismiss the case altogether if he or she considers that a second trial would be a waste of judicial resources and that the outcome would not have been different.

Gaining Leverage from a Split Vote

A split that is more central, like 6-6 or 7-5, gives you a strategic advantage. A hung jury indicates the case is a toss-up. To a personal injury plaintiff, a hung jury may imply that they are less likely to accept the price they were initially demanding and that they would take a reduced price, as they know that they may not get any price in a retrial.

For a defendant, it tends to result in a far better plea bargain. The prosecutor may even give you a misdemeanor in place of a felony to close the file and save the cost of another two-week trial. You have to take the facts of the first trial as a guideline. You now have all the information as to how the witnesses will testify, what evidence the jurors have been confused about, and what the opposing counsel will argue. It is basically a dress rehearsal where you get a chance to close the holes in your defense before the curtain comes up the second time.

The financial and emotional burden of retrial is hard to overestimate. You need to consider the possibility of a second trial and weigh it against the potential reward of a complete acquittal. The loser-pays rules, or the cost of certifying witnesses in civil cases, can make a second trial financially disastrous. The uncertainty that remains can make you unable to go on with your life, career, and family in personal injury cases.

The hung jury will be a weapon in your attorney's arsenal to make you human in the eyes of the prosecution. Your lawyer makes the prosecutor doubt his mind by demonstrating that a group of your peers could not decide whether you were guilty or not. Your best friend is that suspicion. It is the bargaining power you require to reach a solution that will enable you to evade the risk of another jury ruling.

The result of a hung jury is also usually determined by the judge's temperament. In other cases, a judge in Orange County can become more proactive in settlement conferences after a mistrial. They can drag both parties into the chambers and give their own opinions about the evidence when the judge informs the prosecutor that he or she does not think that the evidence is good enough to ensure that they can ever reach a unanimous verdict, which will go a long way.

These judicial cues should be left to your attorney. The move between a stalemate trial and a final decision is hardly ever a straight one. It is a progression of talks, resolutions, and evaluations. By coming to realize that a hung jury is not a loss but a restructuring of the legal battlefield, you can move on to the next stage of your case with the confidence and clarity you need to secure your future.

Frequently Asked Questions (FAQ)

What Is The Time Limit For The State To Retry My Case?

The right to a speedy trial applies in California. Under Penal Code 1382, the prosecution is usually allowed 60 days after the date the mistrial was announced to commence a new felony trial. For misdemeanors, the typical limit is 30 to 45 days. Failure to do so within this window, without good cause or a time waiver on your part, will allow your attorney to seek the dismissal of the case.

Can My Lawyer Speak To The Jurors To Find Out Why They Cannot Reach A Decision?

Yes. The judge no longer requires the jury to keep silent once he/she has dismissed the jury. Although the jurors have the absolute right not to speak, most are willing to talk with the attorneys. This post-mortem is an essential tool for your legal team to determine which evidence was confusing or which witnesses were not believed, so that they can remedy those issues before the second trial.

Can A Judge Dismiss My Case When The Prosecutor Desires A Retrial?

Yes. In California Penal Code 11385, a judge can dismiss a case in the furtherance of justice. In case the jury was strongly divided in your favor (e.g., 10-2 to acquittal) and the judge thinks that a second trial would not lead to a unanimous conviction, he/she can dismiss the case to save judicial resources.

How Many Times May The State Retry Me When The Jury Is Hung?

California does not have a statutory three-strike rule on mistrials. Therefore, a prosecutor may request a third or fourth trial. But in reality, once there are two hung juries, the majority of the judges will strongly recommend a dismissal or a much lesser plea bargain, because a unanimous verdict is unlikely.

Would I Be Out Of Jail Awaiting The Second Trial?

Once a mistrial, you are back to the legal position that you were in before the trial. But a hung jury is an altered situation. In case the vote is divided in your favor, your attorney may present a motion to reduce bail or place you on your own recognizance (O.R.), claiming that the absence of a conviction demonstrates that you are a lesser risk or that the case against you is weak.

Find a Personal Injury Attorney Near Me

Hung juries are frustrating and ambiguous, yet in the right hands, a group of skilled legal professionals, they can serve as a potent catalyst to a successful decision. A mistrial is not a dead end; it is a moment of great strategic opportunity. It does not matter whether you are standing a second trial in a complicated civil case or you are in the heat of a case impasse.

Do not be caught by the indecision of a deadlocked jury and be subjected to a second trial without a refined strategy. Find a personal injury lawyer who can assist you in resolving the legal stalemate and creating a straightforward solution for your future.

At Orange County Personal Injury Attorney, we are committed to studying the jury's indecision and turning it to your advantage. We carefully analyze the split, identify weaknesses in the opposition's arguments, and work to secure a dismissal or a settlement that protects your rights. Call us at 714-876-1959 for a free, confidential consultation.