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- Why a court may declare a mistrial
- What Rule 26.3 requires in federal court
- When double jeopardy becomes relevant
- A hung jury usually permits retrial
- Mistrial over the defendant’s objection
- Mistrial requested or accepted by the defendant
- Partial verdicts and unresolved counts
- A mistrial differs from an acquittal and a new trial
- What happens after a mistrial
- Sources
Key Facts
- Federal level: A mistrial ends a trial before the factfinder reaches a final decision resolving the charges, but it is not itself an acquittal or conviction.
- Federal level: Federal Rule of Criminal Procedure 26.3 requires the court, before ordering a mistrial, to let each defendant and the government comment, state consent or objection, and suggest alternatives.
- Federal level: A genuinely deadlocked jury is the classic example of “manifest necessity,” so a retrial after a hung-jury mistrial generally does not violate double jeopardy.
- Federal level: When a defendant requests a mistrial, retrial is ordinarily allowed unless the prosecutor intended to provoke that request.
A mistrial is a trial that ends without a final verdict or other final resolution of the charges because the proceeding cannot fairly or lawfully continue. The judge discharges the jury, or ends a bench trial, before the ordinary conclusion. The case is then left procedurally unresolved rather than decided in favor of either side.
That distinction matters. A mistrial is not another word for “not guilty,” and it does not automatically erase the charge. It also does not guarantee a second trial. Whether prosecutors may try the charge again depends on why the first trial ended, who sought the mistrial, whether the defendant consented, and whether constitutional jeopardy had attached.
Why a court may declare a mistrial
A mistrial addresses a problem serious enough that continuing with the same factfinder would no longer produce a reliable or lawful trial. A jury that cannot agree is the familiar example. Other possibilities include a juror’s inability to continue when no lawful alternative is available, prejudicial information reaching the jury, misconduct that cannot be cured by an instruction, or a fundamental procedural defect.
Not every mistake requires this result. Judges may consider narrower alternatives, such as a cautionary instruction, a short continuance, replacing a juror with an alternate when the rules permit, or accepting verdicts on counts the jury has resolved. The available response depends on the timing and circumstances, and a mistrial remains a case-specific judicial decision.
What Rule 26.3 requires in federal court
Federal Rule of Criminal Procedure 26.3 creates a required discussion before the court orders a mistrial. Each defendant and the government must receive an opportunity to comment on whether the order is proper, state whether that party consents or objects, and suggest alternatives.
The rule does not itself answer every double-jeopardy question. Its process helps create a clear record of the reason for ending the trial, the parties’ positions, and possible ways to continue. Consent or objection can later matter when a court decides whether another prosecution is constitutional.
Rule 31 addresses the common hung-jury situation. If jurors agree on some counts but not others, they may return verdicts on the resolved counts. The court may declare a mistrial on unresolved counts, and the government may retry those counts. A jury poll that reveals a lack of unanimity may also lead the judge to order further deliberations or declare a mistrial.
When double jeopardy becomes relevant
The Fifth Amendment’s Double Jeopardy Clause protects against repeated prosecution for the same offense. In a jury trial, jeopardy attaches when the jury is sworn. In a bench trial, it attaches when the court begins to hear evidence.
Once jeopardy has attached, a defendant has a recognized interest in having that particular judge or jury finish the case. But an unfinished trial is not treated exactly like an acquittal. The Supreme Court has long recognized that some premature endings permit another trial, while others do not.
A hung jury usually permits retrial
A hung jury is one that cannot reach the unanimity required for a federal criminal verdict. The Supreme Court’s 1824 decision in United States v. Perez established that a genuinely deadlocked jury may be discharged and the defendant tried again when the circumstances create a manifest necessity for ending the first trial.
Manifest necessity does not mean literal physical impossibility. It describes a demanding constitutional justification for terminating a trial over the defendant’s objection. A jury’s genuine inability to agree is the classic basis. Federal Rule 31 expressly permits a mistrial and retrial on counts the jury cannot resolve.
A judge still must exercise sound discretion rather than end deliberations mechanically. There is no universal number of hours that makes a jury “hung.” The judge may consider the trial’s complexity, the length and course of deliberations, communications from the jury, and whether further deliberation appears useful without pressuring jurors to abandon conscientiously held views.
Mistrial over the defendant’s objection
When the judge declares a mistrial over a defendant’s objection after jeopardy attaches, the prosecution bears the burden of showing manifest necessity before a retrial may proceed. The Supreme Court described that burden as heavy in Arizona v. Washington.
The standard allows judgment rather than a mechanical checklist. Courts give substantial respect to a trial judge’s assessment that improper argument or other events have compromised the jury’s impartiality, provided the judge deliberately considers the problem and reasonable alternatives. A rushed or unsupported termination can fail the standard and make reprosecution unconstitutional.
Mistrial requested or accepted by the defendant
A different starting rule applies when the defendant asks for the mistrial or agrees to it. That choice ordinarily removes the double-jeopardy barrier to a new trial, even when a prosecutorial or judicial error prompted the request.
Oregon v. Kennedy recognizes a narrow exception. Retrial is barred when the prosecutor intended to goad the defendant into requesting a mistrial. Serious error or even harassment is not automatically enough under this federal test; the focus is the prosecutor’s intent to provoke termination of the proceeding, evaluated from objective facts and circumstances.
Partial verdicts and unresolved counts
A multi-count case can produce different results for different charges. Jurors might return a guilty verdict on one count, an acquittal on another, and remain deadlocked on a third. The final verdicts keep their legal effect, while the unresolved count may be retried after a proper mistrial.
An informal report of how jurors voted during deliberations is not necessarily a verdict. In Blueford v. Arkansas, the Supreme Court held that a foreperson’s report of unanimous votes against some offenses lacked the finality of an acquittal because deliberations had continued and no verdict was returned. After the jury ultimately deadlocked, retrial was not barred on those offenses.
A mistrial differs from an acquittal and a new trial
An acquittal is a final resolution that the prosecution did not establish criminal liability on a charge. Even an acquittal based on legal error ordinarily has special double-jeopardy finality. A mistrial, by contrast, usually leaves guilt or innocence undecided.
A new trial is also a different procedural event. It commonly follows a completed trial whose judgment or verdict is later set aside. A mistrial ends the original proceeding before that ordinary final resolution. Readers looking at the larger sequence can compare this point with the site’s overview of a criminal trial.
What happens after a mistrial
After a proper hung-jury mistrial, federal Rule 31 permits the government to retry the unresolved counts. Whether retrial is permitted after other kinds of mistrial depends on the double-jeopardy rules described above.
The reason recorded for the mistrial is therefore more important than the label alone. A deadlock, a defendant’s request, an order over objection, and a final acquittal raise different legal questions. State criminal procedure may add protections or use different procedures, so this federal overview should not be treated as a statement of any particular state’s rules.
Sources
- Federal Rules of Criminal Procedure, December 1, 2025, Rules 26.3 and 31
- Constitution Annotated: Re-Prosecution After Mistrial
- U.S. Reports: United States v. Perez, 22 U.S. 579 (1824)
- U.S. Reports: Arizona v. Washington, 434 U.S. 497 (1978)
- U.S. Reports: Oregon v. Kennedy, 456 U.S. 667 (1982)
- U.S. Reports: Richardson v. United States, 468 U.S. 317 (1984)
- U.S. Reports: Blueford v. Arkansas, 566 U.S. 599 (2012)
