# Hung Jury is No Answer? **URL:** \ **Category:** Factual Questions\ **Created:** [September 26, 2018, 3:17am UTC](https://boards.straightdope.com/t/hung-jury-is-no-answer/821927 "2018-09-26T03:17:33Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Jinx](https://avatars.discourse-cdn.com/v4/letter/j/c6cbf5/32.png) [@Jinx](https://boards.straightdope.com/u/Jinx)\ **Post date:** [September 26, 2018, 3:17am UTC](https://boards.straightdope.com/t/hung-jury-is-no-answer/821927/1 "2018-09-26T03:17:33Z")
Considering the Bill Cosby trial, I understand a unanimous decision was needed from the jury. The first trial ended in a hung jury which led to his re-trial. However, doesn’t a hung jury TELL US ALL that the accuser’s argument is a weak case and could not convince a jury beyond reasonable doubt of Cosby’s guilt? How come the accuser gets a second chance to try again to strengthen her case, but not the defendant\*? It’s like the first trial was a dress rehearsal and her lawyer can now coach her to do better, plus her lawyers gets a second shot to hone his scathing questions. Just asking for the facts of why this is. Maybe some with a legal background will be kind enough to shed some light on this and where lies the error in my logic. \*I mean, the defendant gets placed in an all-or-nothing situation whereas the accuser gets a free throw, as I see it. ---
**Author:** ![Ethilrist](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ethilrist/32/4604_2.png) [@Ethilrist](https://boards.straightdope.com/u/Ethilrist)\ **Post date:** [September 26, 2018, 3:22am UTC](https://boards.straightdope.com/t/hung-jury-is-no-answer/821927/2 "2018-09-26T03:22:22Z")
> [@Jinx](#): > > … However, doesn’t a hung jury TELL US ALL that the accuser’s argument is a weak case and could not convince a jury beyond reasonable doubt of Cosby’s guilt? … Well, it didn’t tell those six jurors, and their opinion kind of counts for something. ---
**Author:** ![kenobi\_65](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kenobi_65/32/13178_2.png) [@kenobi\_65](https://boards.straightdope.com/u/kenobi_65)\ **Post date:** [September 26, 2018, 3:51am UTC](https://boards.straightdope.com/t/hung-jury-is-no-answer/821927/3 "2018-09-26T03:51:21Z")
I suspect that, in a lot of cases, hung juries are more the result of having one or two jurors whose view of “reasonable doubt” is very different from the rest of the jurors, or who may not have been able to consider the evidence fairly or in an unbiased way, for whatever reason. You could have a hung jury that’s 11-1 in favor of conviction, one that’s 11-1 in favor of acquittal, or anything in between. From a legal standpoint, there’s no difference between any of those, and I don’t think that one should assume that a hung jury should necessarily reflect on the prosecution (or, for that matter, the defense). It _might_, in some cases, but the simple fact of a hung jury doesn’t necessarily imply that one side or the other botched the case. ---
**Author:** ![kenobi\_65](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kenobi_65/32/13178_2.png) [@kenobi\_65](https://boards.straightdope.com/u/kenobi_65)\ **Post date:** [September 26, 2018, 4:05am UTC](https://boards.straightdope.com/t/hung-jury-is-no-answer/821927/4 "2018-09-26T04:05:15Z")
Also, [this article](http://www.trialmethods.com/uncategorized/conviction-rates-drop-retrials-following-hung-juries/) notes that acquittal rates on second trials (after the first trial ended in a hung jury) are actually _higher_ than on first trials, and outlines why this may be (short version: it may be to the defense’s advantage to try a different approach the second time out): > [@](#): > > In criminal cases there is only one pleading: the indictment. Presumably at the first trial, the prosecution produces its best possible case to prove the factual allegations in this pleading. If the case ends up with a hung jury, the second time around the prosecution must either proceed with the same exact case or go with what was originally considered the “B Team” or an inferior method of proving guilt beyond a reasonable doubt. As an example, say that in a bank robbery case there are 6 eye witnesses. One would think the State would call the best, let’s say 3 witnesses during Trial #1. Any change at Trial #2 would therefore not be an improvement and the defense knows this. The State will either call the same 3 witnesses or would have to call the “second rate” others. > > The defense is not similarly restricted since it has not filed a factual pleading. It has simply entered a not guilty plea. If a defendant presented a case at the original trial and was not pleased with how it went, the defense can then simply not put on a case at the retrial or the reverse is true: not having presented a case at the first trial, it is free to present a defense at the retrial. Again, more options. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [September 26, 2018, 6:02am UTC](https://boards.straightdope.com/t/hung-jury-is-no-answer/821927/5 "2018-09-26T06:02:54Z")
I don’t see why the prosecution would benefit from a first “practice” trial more than the defense would. It would seem to me that they would both benefit equally. As for the concept, I’ll offer this suggestion; we should think of the jury as a collective body not a group of individuals. The jury is supposed to be considering the case that was put before it and arriving at the same conclusion. At the end of the trial, all of the jurors are supposed to have seen the same case presented to all of them and agree that there is only one possible verdict based on what they’ve seen. If that unanimity isn’t there, it’s a sign that there’s a flaw. Maybe there’s a bad juror who’s letting outside factors influence their vote. Or maybe one side or the other didn’t do an adequate job presenting the case. Either way, the correct thing to do is start over from the beginning. ---
**Author:** ![blob](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/blob/32/489_2.png) [@blob](https://boards.straightdope.com/u/blob)\ **Post date:** [September 26, 2018, 6:51am UTC](https://boards.straightdope.com/t/hung-jury-is-no-answer/821927/6 "2018-09-26T06:51:18Z")
> [@Jinx](#): > > Considering the Bill Cosby trial, I understand a unanimous decision was needed from the jury. The first trial ended in a hung jury which led to his re-trial. However, doesn’t a hung jury TELL US ALL that the accuser’s argument is a weak case and could not convince a jury beyond reasonable doubt of Cosby’s guilt? No, it might just be telling us that there’s a dangerous psycho on the jury who thinks raping women is nothing serious… IIt’s not the “accuser’s case”, the victim is just a witness. It’s the State’s. The strength of the evidence is considered after a hung jury, when deciding whether to have another trial or not. There is always a public interest in getting criminals like Cosby behind bars for their crimes. ---
**Author:** ![Arkcon](https://avatars.discourse-cdn.com/v4/letter/a/96bed5/32.png) [@Arkcon](https://boards.straightdope.com/u/Arkcon)\ **Post date:** [September 26, 2018, 12:12pm UTC](https://boards.straightdope.com/t/hung-jury-is-no-answer/821927/7 "2018-09-26T12:12:02Z")
Many times, after a hung jury, the prosecution offers a better plea deal, that the defendant then accepts, or declines to prosecute a second time. So a hung jury can work for the defense, as well. They taught me, when I was a child, that our current judicial system traces its roots to, thousands of years ago, when the Ancient Greeks developed the concept of "trial by jury"TM, for all “citizens” during which any man\* could plead his case, to the best of his\* ability, and a group of other men\* would decide to the best of their ability to let him\* off or punish him.\* Mileage may vary – sorry, Socrates, women and visitors form other cities. The world has become a much, much, much, much more complicated system since then. - Gender specific pronouns used to match definitions of the time. ---
**Author:** ![ftg](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ftg/32/2801_2.png) [@ftg](https://boards.straightdope.com/u/ftg)\ **Post date:** [September 26, 2018, 12:25pm UTC](https://boards.straightdope.com/t/hung-jury-is-no-answer/821927/8 "2018-09-26T12:25:08Z")
Note that in a the recent Manafort trail there was one holdout on most of the charges. (Who did go along with some of them.) The other jurors weren’t happy about this person’s biases. So a retrial on those charges was definitely going to happen. Manafort’s lawyers saw the odds were not good and took a plea deal. In this case, the (partially) hung jury helped the prosecution. Now Manafort’s going to cooperate. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [September 26, 2018, 1:51pm UTC](https://boards.straightdope.com/t/hung-jury-is-no-answer/821927/9 "2018-09-26T13:51:55Z")
> [@](#): > > Quoth **blob** : > > IIt’s not the “accuser’s case”, the victim is just a witness. It’s the State’s. Indeed, if this were not the case, trials for murder would be impossible. ---
**Author:** ![Alpha\_Twit](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alpha_twit/32/265_2.png) [@Alpha\_Twit](https://boards.straightdope.com/u/Alpha_Twit)\ **Post date:** [September 26, 2018, 1:56pm UTC](https://boards.straightdope.com/t/hung-jury-is-no-answer/821927/10 "2018-09-26T13:56:26Z")
In the case of a hung jury, doesn’t the prosecution have the option of retrying the defendant on a lesser charge. They couldn’t convict me on 2nd degree murder charges so the next time around, they aim for manslaughter? Do things like this happen? ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [September 26, 2018, 3:06pm UTC](https://boards.straightdope.com/t/hung-jury-is-no-answer/821927/11 "2018-09-26T15:06:35Z")
> [@Alpha\_Twit](#): > > In the case of a hung jury, doesn’t the prosecution have the option of retrying the defendant on a lesser charge. They couldn’t convict me on 2nd degree murder charges so the next time around, they aim for manslaughter? Do things like this happen? Yes. Although in some jurisdictions (most?) they can try the more serious charge and the jury can consider the less serious if they can’t agree on the higher one. See, “lesser included offense.” [Lesser included offense - Wikipedia](https://en.wikipedia.org/wiki/Lesser_included_offense) ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [September 26, 2018, 4:09pm UTC](https://boards.straightdope.com/t/hung-jury-is-no-answer/821927/12 "2018-09-26T16:09:43Z")
A hung jury basically says “the case wasn’t convincing enough to convict, but ALSO neither was it convincing enough to acquit”. As a result, the prosecution has the option of trying to persuade a jury all over again - or give up. If the prosecution opts for a second trial, the defendant has the same option - a new trial or give up - i.e. plead guilty. If the prosecution opts not to try again, the defendant “wins”. So the prosecution has one iffy chance (trial) and one bad chance (for their case). The defense could win, have an iffy chance, or a bad chance - sounds like things are better balanced for the defense. ---
**Author:** ![DrCube](https://avatars.discourse-cdn.com/v4/letter/d/a3d4f5/32.png) [@DrCube](https://boards.straightdope.com/u/DrCube)\ **Post date:** [September 26, 2018, 5:56pm UTC](https://boards.straightdope.com/t/hung-jury-is-no-answer/821927/13 "2018-09-26T17:56:10Z")
How does this square with the Fifth Amendment prohibition against double jeopardy? It sure seems at first glance like a hung jury has NOT found the defendant GUILTY, and a second trial would be putting them in jeopardy a second time. When the jury has been tampered with, I understand a mistrial, but just not coming to a unanimous conclusion seems indistinguishable from “not guilty”. The jury as a whole simply wasn’t convinced of guilt. As the Supreme Court says, “the prohibition is not against being twice punished, but against being twice put in jeopardy; and the accused, whether convicted or acquitted, is equally put in jeopardy at the first trial.” ---
**Author:** ![kenobi\_65](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kenobi_65/32/13178_2.png) [@kenobi\_65](https://boards.straightdope.com/u/kenobi_65)\ **Post date:** [September 26, 2018, 6:08pm UTC](https://boards.straightdope.com/t/hung-jury-is-no-answer/821927/14 "2018-09-26T18:08:00Z")
> [@DrCube](#): > > How does this square with the Fifth Amendment prohibition against double jeopardy? A hung jury is a trial that does not return a verdict, one way or the other. It may feel, to you, like “not guilty,” but from a legal standpoint, it’s not. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [September 26, 2018, 6:16pm UTC](https://boards.straightdope.com/t/hung-jury-is-no-answer/821927/15 "2018-09-26T18:16:16Z")
The prohibition against Double Jeopardy means that having been found innocent, the state cannot simply say “we disagree. Try again”. As is pointed out, a hung jury has NOT found you innocent. 12 of your peers have not been convinced that there is reasonable doubt, which is the bar a successful defence has to clear. ---
**Author:** ![DrCube](https://avatars.discourse-cdn.com/v4/letter/d/a3d4f5/32.png) [@DrCube](https://boards.straightdope.com/u/DrCube)\ **Post date:** [September 26, 2018, 6:18pm UTC](https://boards.straightdope.com/t/hung-jury-is-no-answer/821927/16 "2018-09-26T18:18:30Z")
> [@kenobi\_65](#): > > A hung jury is a trial that does not return a verdict, one way or the other. It may feel, to you, like “not guilty,” but from a legal standpoint, it’s not. Right, but I mean, whether the jury was hung or not, the defendant was put in real jeopardy. Whereas, when the jury has been threatened or bribed, or the judge was bribed, the defendant was not really in any jeopardy. So a retrial seems kosher in the latter case, but I’m not sure why it is okay in the former case. I’m not trying to argue, just understand. Is there a standard explanation given to new law students, perhaps? Wikipedia isn’t very helpful. ---
**Author:** ![kenobi\_65](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kenobi_65/32/13178_2.png) [@kenobi\_65](https://boards.straightdope.com/u/kenobi_65)\ **Post date:** [September 26, 2018, 6:33pm UTC](https://boards.straightdope.com/t/hung-jury-is-no-answer/821927/17 "2018-09-26T18:33:19Z")
> [@DrCube](#): > > Right, but I mean, whether the jury was hung or not, the defendant was put in real jeopardy. Whereas, when the jury has been threatened or bribed, or the judge was bribed, the defendant was not really in any jeopardy. So a retrial seems kosher in the latter case, but I’m not sure why it is okay in the former case. In a hung jury, the trial did not conclude. A hung jury is, as far as I can tell, considered to be [a type of mistrial](https://en.wikipedia.org/wiki/Trial#Mistrials). And, generally, a second trial after a mistrial has been held, by the Supreme Court, to _not_ violate the double jeopardy clause. However, it [appears](https://en.wikipedia.org/wiki/Double_Jeopardy_Clause#Retrial_after_mistrial) (and, I freely admit, IANAL) that this isn’t absolute. If it’s determined that the hung jury / mistrial was the result of malfeasance by the judge or the prosecution, then a second trial would, in fact, be a violation of the double jeopardy clause. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [September 26, 2018, 7:08pm UTC](https://boards.straightdope.com/t/hung-jury-is-no-answer/821927/18 "2018-09-26T19:08:35Z")
**Hung jury** is a colloquialism for a situation in which the jury cannot meet the requirements to render a verdict. “Not guilty” verdicts don’t come about because the entirety of the jury is unconvinced of guilt, instead they come about because the jury collectively agrees that the prosecution has not proven their case to the burden of proof required and has **rendered a verdict**. In a hung jury the jury hasn’t rendered a verdict, so the original jeopardy never concludes, it continues on. The case is ruled a mistrial and can be brought again by the prosecutor. (Some mistrials can be dismissed with prejudice, and they cannot be retried, but that usually involves the prosecutor acting in a malfeasant or inappropriate way.) Since it’s GQ and it’s a weird thing not many people know, it’s worth mentioning **the requirement that guilty verdicts be unanimous is not universal**. In the United States, both Louisiana and Oregon do not require the jury to be unanimous to render a verdict in a criminal trial. In Oregon a unanimous jury is required to convict for murder, in Louisiana if 10 out of 12 jurors agree, that’s enough to sustain a murder conviction. Military courts-martial also do not require unanimous verdicts universally. If the crime carries a mandatory death sentence, then the courts-martial panels members must rule unanimously. For lesser crimes there requirement is less, for a crime that carries a mandatory life sentence it only requires 3/4ths of the courts martial panel to agree. Other crimes require concurrence of 2/3rds of the courts-martial. The military justice system has several features that would be incompatible with the constitutional provisions for conducting trials (this is because of essentially the concept that under the constitution Congress can spell out a special process for adjudicating crimes under the guise of military discipline), for example the convening authority in a courts-martial (the officer who is bringing charges), personally selects the members of the courts-martial. This goes against the typical concepts we see in civilian court jury selections. While there are peremptory challenges in the military justice system, there is only one allowed. Additionally strictly speaking many courts-martial trials do not have a panel (jury) that is made up of “a jury of peers.” If an officer is being tried it is required that all members of the panel be officers. If a warrant officer is being tried, the panel can be composed of a mixture of officers and warrant officers (it could still be all officers), if an enlisted person is on trial they can request enlisted members be on the panel, but even then the convening authority is only required to make 1/3rd of the panel enlisted, so you have a case where there will be people who are not “peers” of the accused rendering judgment of them. ---
**Author:** ![rbroome](https://avatars.discourse-cdn.com/v4/letter/r/838e76/32.png) [@rbroome](https://boards.straightdope.com/u/rbroome)\ **Post date:** [September 26, 2018, 9:34pm UTC](https://boards.straightdope.com/t/hung-jury-is-no-answer/821927/19 "2018-09-26T21:34:15Z")
In regards to the 10 of 12 votes in Louisiana. That is true. It is also a significant embarrassment. It was written in to the Louisiana constitution-in 1899. A state legislator passed around the written record of the debate on this issue. It was so overtly racist that the legislature has passed an amendment changing the vote to unanimous. It has long been so for capital cases. There is no guarantee that the amendment will pass the popular vote-not for racial reasons so much as people don’t like change. Even when the change is good for them. ☹ ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [September 26, 2018, 9:42pm UTC](https://boards.straightdope.com/t/hung-jury-is-no-answer/821927/20 "2018-09-26T21:42:03Z")
> [@kenobi\_65](#): > > In a hung jury, the trial did not conclude. A hung jury is, as far as I can tell, considered to be [a type of mistrial](https://en.wikipedia.org/wiki/Trial#Mistrials). And, generally, a second trial after a mistrial has been held, by the Supreme Court, to _not_ violate the double jeopardy clause. > > However, it [appears](https://en.wikipedia.org/wiki/Double_Jeopardy_Clause#Retrial_after_mistrial) (and, I freely admit, IANAL) that this isn’t absolute. If it’s determined that the hung jury / mistrial was the result of malfeasance by the judge or the prosecution, then a second trial would, in fact, be a violation of the double jeopardy clause. These are both correct. If a jury can’t reach a verdict, a judge may instruct them to keep trying. But if it is intractable, the judge must declare a mistrial. There is no official rendering of a “hung jury”; rather, it’s the reason for the mistrial. And, a mistrial does not preclude a renewed trial, unless it was intentionally caused by a prosecutor’s malfeasance. That’s usually a different situation, though. A mistrial can be called, for example, when a witness makes reference to inadmissible evidence (such as a prior conviction - common in a DUI case when the defendant has priors, and the cop knew about it when he was investigating) that taints the jury. Usually, this would happen inadvertently; but, if the prosecutor led the witness to make the reference, and did so to tank the case (let’s presume that the prosecutor knew that his crime lab expert wasn’t available, so he wanted to delay the trial by a month), then you have a basis, as a Defendant, to argue that the Prosecutor is precluded from retrying the case. [Next page](https://boards.straightdope.com/t/hung-jury-is-no-answer/821927.md?page=2)