When a trial ends with a hung jury, the law allows the case to be retried before a new jury. That’s the law, and it should be clear that any claim to the contrary is not the law. At least not yet.
The discharge of a deadlocked jury follows one of two events. The first is that the defendant moves or consents to the mistrial, which happens most of the time since a hung jury beats a conviction any day. The second is the court finding of “manifest necessity,” an urgent and overwhelming need to secure a fair trial. A deadlocked jury fills the bill. A deliberate act by prosecutors that compels a mistrial, such as showing the jury prejudicial inadmissible evidence, on the other hand, does not.
The rationale. as explained by justice Hugo Black in Wade v. Hunter, 1949, for permitting a retrial after a jury is unable to reach a unanimous verdict is, if nothing else, practical.
The double-jeopardy provision of the Fifth Amendment, however, does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. Such a rule would create an insuperable obstacle to the administration of justice in many cases in which there is no semblance of the type of oppressive practices at which the double-jeopardy prohibition is aimed. There may be unforeseeable circumstances that arise during a trial making its completion impossible, such as the failure of a jury to agree on a verdict.
In such event the purpose of law to protect society from those guilty of crimes frequently would be frustrated by denying courts power to put the defendant to trial again. And there have been instances where a trial judge has discovered facts during a trial which indicated that one or more members of a jury might be biased against the Government or the defendant. It is settled that the duty of the judge in this event is to discharge the jury and direct a retrial. What has been said is enough to show that a defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments. (Broken into two paragraphs for readability.)
Critically, the Court held that the defendant’s constitutional right to be tried “by a particular tribunal” (meaning jury) is “subordinated” to the “public’s interest in fair trials.” There is a Fifth Amendment right to a fair trial, but that right belongs to the defendant, not the public. Once a trial jury is selected, the defendant has the right to have his case decided by that jury.
There are, of course, fairly obvious circumstances that make that impossible, such as the death or illness of a juror, or subsequently ascertaining that a juror lied during voir dire and cannot be impartial. But such instances are very different in kind from an otherwise viable jury simply being unable to achieve a unanimous verdict. If one or more jurors holds a sincere belief in conflict with the others, he or she is not merely entitled, but required, to hold fast to his or her position despite being in the minority. There would be no purpose to the requirement of a unanimous jury if a holdout was required to bend to the will of the majority.
Therein lies the rub. The prosecution has the burden of proving guilt beyond a reasonable doubt. The defendant is and remains innocent until such time as the jury reaches a unanimous verdict of conviction. The defendant has no burden at all. He need not prove innocence. He need not raise a reasonable doubt. The defendant can sit there, armed folded, and challenge the prosecution to convict.
So what if the prosecution has a full and fair opportunity to convict a defendant before the defendant’s chosen jury, and fails to satisfy its burden?
A hung jury is not a verdict, and the trial ending in deadlock does not achieve a resolution of the charges against the defendant. But does that empower a court to discharge the jury to which the defendant has a constitutional right to have his cause decided, and allow the prosecution another bite? As noted earlier, when the defendant moves for or consents to the mistrial, he waives his right to have his case decided by the chosen jury and concedes the existence of manifest necessity.
But when, as in the Clancy case where Kevin Reddington did everything possible to prevent a mistrial from being declared and to preserve the chosen jury, why is the defendant’s constitutional right to have her case decided by her chosen jury forfeited to convenience, whether of the prosecution, jury, court or public? Nowhere does the Fifth Amendment subordinate the defendant’s constitutional right to the interests of anyone else, public included. Nowhere does the Fifth Amendment mention any right at stake other than the defendant’s.
Sure, many will cry “but what about the public’s interest,” but that is what the Constitution guards against, the rights of the individual being subordinated to whatever the government decides is more important than his right. It’s why the First Amendment empowers the individual to say things that offend the majority, and the Second Amendment to protect the right to keep and bear arms even when the majority fears gun violence.
The prosecution got its full and fair opportunity to prove its case. It presented its evidence to the chosen jury, and for whatever reason, the jury was unable to reach a final verdict of conviction. Should that mean the prosecution gets to keep trying until it achieves its desired outcome, thwarted only when a jury unanimously returns with a smack to the prosecution’s red face? The defendant has no duty to reach a unanimous verdict of acquittal, but only to prevent a unanimous verdict of conviction. Once the prosecution has had, and has lost, the opportunity to make its case, double jeopardy should attach and prevent a retrial. Sadly, this is not the law, but it should be.