Sometimes. A hung jury usually allows retrial on counts the jury did not decide, but an acquittal on another count remains different. The court’s discharge order, jury agreement or disagreement, party consent or objection, and count-by-count verdicts matter. If the defense requested a mistrial because of prosecutorial misconduct, retrial may be barred only under narrow federal and California rules; ordinary trial error does not automatically prevent another trial. (Penal Code § 1140; § 1141; Richardson v. United States)
A hung jury is not an acquittal
After a case is submitted, Penal Code section 1140 permits discharge after a verdict, with the parties’ consent recorded in the minutes, or when the court finds no reasonable probability the jury can agree. Section 1141 generally permits another trial after a jury is discharged without a verdict, subject to constitutional limits and the statute’s terms. The U.S. Supreme Court has held that a jury unable to agree generally does not terminate jeopardy. If the jury acquitted on one count but could not agree on another, review each count separately; a mistrial on one does not turn an acquittal into a retriable charge. (Penal Code § 1140; § 1141; Richardson)
Why the mistrial happened matters
If the defendant successfully moved for a mistrial based on prosecutorial or judicial conduct, the federal rule bars retrial when the conduct was intended to provoke the defendant into seeking the mistrial. That is a narrow intent test, not a rule that any serious error bars another trial. When the court declares a mistrial over the defendant’s objection, retrial generally requires a compelling reason to end that trial, called “manifest necessity”; a genuinely deadlocked jury can supply one. (Oregon v. Kennedy)
California’s People v. Batts recognizes a narrow state-constitutional bar beyond Kennedy: after the defendant successfully seeks a mistrial, retrial may be barred when the prosecutor believed an acquittal was likely, intentionally committed misconduct to prevent it, and that misconduct objectively deprived the defendant of a reasonable prospect of acquittal. This extraordinary rule is not triggered by ordinary prosecutorial error or an unfavorable ruling. The evidence about what happened, the prosecutor’s purpose, the defense motion, and the court’s response must be evaluated in the actual record. (People v. Batts)
Preserve the record before evaluating retrial
Keep the verdict forms and any jury polling, the juror note, transcript of the mistrial request and objections, the court’s discharge order and stated reason, and the rulings or conduct said to have caused the motion. Record which counts ended in acquittal, conviction, or no verdict. A label such as “mistrial” does not answer the double-jeopardy question by itself. A new-trial motion after a verdict is a different procedure. Have counsel review the actual orders and dates; retrial scheduling limits require a separate calculation.
The Law Offices of David S. Chesley represents people facing California criminal charges. Call (800) 755-5174 to discuss a mistrial order and the count-by-count record.