A mistrial is not a win, it is not a loss, and it is not double jeopardy. It is the legal equivalent of the game being called off, and in most cases the state can simply schedule another one.
That surprises people, and the surprise is reasonable, because the constitutional protection against being tried twice for the same offence is one of the few pieces of criminal procedure everyone has heard of. This is an explanation of what a mistrial actually is, what a hung jury does, what a judge says to a deadlocked jury in Massachusetts, and when the Commonwealth can come back and do it again.
What is a mistrial?
A mistrial is a trial terminated by the judge before a verdict, because something has gone wrong that cannot be fixed inside the trial itself.
The proceeding stops. Nothing is decided. The charges do not go away, no finding of guilt or innocence attaches to the defendant, and the case returns to where it stood before the jury was sworn.
Judges declare mistrials for several reasons:
- A deadlocked jury, which is the most common and the subject of most of this article
- Prejudicial error, such as inadmissible evidence reaching the jury in a way no instruction can cure
- Misconduct, by a party, a lawyer, a witness or a juror
- Practical impossibility, including the illness or death of a participant
Who asks matters enormously for what happens next, and we come to that below.
What is a hung jury?
A hung jury is one that cannot reach the unanimity a criminal verdict requires.
In a criminal case in Massachusetts, as in every American criminal jurisdiction, the verdict must be unanimous. Twelve people have to agree. If one will not, there is no verdict, and there is no partial credit for eleven.
The split does not matter legally. A jury divided eleven to one is exactly as hung as one divided six to six. It also does not matter which way the majority leaned. Eleven jurors ready to acquit produce the same legal outcome as eleven ready to convict: nothing.
This is worth stating clearly because public commentary consistently treats a lopsided split as a moral verdict. Legally it is not a verdict of any kind.
What does a judge say to a deadlocked jury?
Not much, and carefully, because the risk is coercing a verdict rather than obtaining one.
In most American courts the instruction given to a stuck jury is called an Allen charge, after a nineteenth-century Supreme Court case, and is sometimes nicknamed the dynamite charge because it is meant to blast a deadlock loose.
Massachusetts has its own version with its own name. It is the Tuey-Rodriquez charge, drawn from Commonwealth v. Tuey, 62 Mass. 1 (1851), and Commonwealth v. Rodriquez, 364 Mass. 87 (1973). The Rodriquez decision supplied the modern language.
The substance is a balancing act. Jurors are asked to reconsider their positions and listen genuinely to one another, while being told not to surrender an honestly held conviction merely to reach agreement. The charge exists to encourage deliberation without instructing anybody to cave.
There is a further Massachusetts limit that rarely gets mentioned. A judge cannot simply keep sending a deadlocked jury back indefinitely. After a certain point the jury’s own consent, or a request from the jury for further instruction on the law, is what permits another round.
Can you be retried after a mistrial?
Usually yes, and the reason is a doctrine called manifest necessity.
The Fifth Amendment protects against being twice put in jeopardy for the same offence. Jeopardy attaches when the jury is sworn, which is why a mistrial raises the question at all: the defendant was already in jeopardy, and a retrial puts him there a second time.
The exception is that when a trial ends for reasons of manifest necessity, retrial is permitted. And a hung jury is the classic example. The Supreme Court set out the framework in Arizona v. Washington, 434 U.S. 497 (1978), and the principle is old and well settled.
The Supreme Judicial Court restated it plainly in its 2025 decision in Karen Read’s case: a hung jury has long been recognised as a traditional example of manifest necessity, allowing retrial without offending the defendant’s double jeopardy rights.
So the practical answer to “can you be retried after a mistrial” is: after a genuine deadlock, yes, and the prosecutor decides whether to.
When double jeopardy does bar a retrial
The exceptions are narrow but real, and this is where the litigation happens.
Where the mistrial was not necessary. If a judge declares a mistrial over the defendant’s objection without manifest necessity, retrial can be barred. The defendant has an interest in having his fate decided by the jury already empanelled.
Where the prosecution provoked it. If the state deliberately engineered a mistrial, for example because the trial was going badly and it wanted a second attempt, double jeopardy can attach.
Where the defendant did not ask for it. This is the underlying pattern. A defendant who requests a mistrial has generally consented to a retrial. A defendant who objected has preserved the argument.
Massachusetts has produced recent authority on all of this. Both Karen Read v. Commonwealth, SJC-13663, and the consolidated Sicellon and Moore cases, SJC-13478 and SJC-13479, were decided in February 2025 and address mistrial, double jeopardy and jury deliberation together. That is unusually fresh law for a doctrine this old.
What happens after a mistrial?
Four things can happen, and only one of them is a second trial.
The prosecutor retries the case. New jury, same charges, often a tighter presentation, because both sides have now seen the other’s case in full.
The prosecutor drops it. Formally this is a nolle prosequi. In Massachusetts, under G.L. c. 258B, victims and their family members have a right to confer with the prosecutor before an act terminating the prosecution, though that right expressly does not include the authority to direct the prosecution.
The parties resolve it. A mistrial changes negotiating positions. A prosecutor who has watched eleven jurors decline to convict is in a different posture than one who has not.
The defence moves for relief. Post-mistrial motions can seek dismissal on double jeopardy grounds or other relief depending on what went wrong.
Meanwhile the defendant’s status does not automatically change. Bail conditions and custody usually continue as they were, because the case is still pending. A mistrial is not a release order.
Is a mistrial the same as an acquittal?
No, and the difference is total.
An acquittal is a verdict. It ends the prosecution permanently, and double jeopardy bars any retrial regardless of what evidence emerges afterwards, even a confession.
A mistrial decides nothing. The charges remain live, the presumption of innocence continues to apply, and the Commonwealth may proceed again.
The confusion is understandable, because from a distance both look like the defendant walking out of a courtroom without a conviction. Only one of them is over.
How often do juries hang?
Rarely, which is part of why each instance draws attention.
The overwhelming majority of criminal cases never reach a jury at all, resolving by plea. Of those that do, most produce a verdict. Hung juries are a small fraction of a small fraction.
That rarity is worth holding in mind when a deadlock is described as a system failure. Twelve strangers being unable to agree unanimously about a contested question is not a malfunction. It is the design operating as intended in the cases where the evidence genuinely divides reasonable people.
What a holdout juror is entitled to do
This is the part that generates the most public anger and the least accurate commentary.
A juror who will not vote with the other eleven is not committing misconduct by disagreeing. The burden is on the prosecution, and a single juror who is not persuaded is a single juror who is not persuaded.
Massachusetts confines removal of a deliberating juror to personal reasons unrelated to the case. The reason is structural rather than sentimental: if a foreperson’s report that a dissenting juror was reasoning badly were sufficient to remove him, there would be no way to distinguish misconduct from disagreement, and the hung jury would cease to exist as a category. Every deadlock would resolve into the majority reporting the minority.
That is a real cost. It means occasionally a jury deadlocks because one person is genuinely refusing to follow the instructions, and there is no clean remedy. Courts have decided that this cost is smaller than the alternative.
What a mistrial actually costs
The abstract answer is that nothing was decided. The practical answer is that a great deal was spent.
A retried case means the whole apparatus again: empanelment, witnesses recalled, experts re-engaged and re-paid, exhibits re-entered, weeks of court time re-booked in a system that does not have spare weeks. For a seven-week trial the second run is a serious institutional commitment, and prosecutors weigh it.
It falls unevenly on witnesses. People who testified about the worst thing that ever happened to them are asked to do it again, in front of strangers, under cross-examination, sometimes years later. Victims’ families sit through it twice.
The defendant, if held, generally remains held. Pretrial detention does not pause because a jury could not agree.
And evidence degrades. Memories fade, witnesses move or die, and each side now knows precisely what the other will say, which changes the second trial in ways that do not obviously favour either party.
None of that is a legal argument. It is the reason a mistrial so often produces a negotiated resolution instead of a rerun.
What happens to the jurors
They are discharged, and in most cases that is the end of their involvement entirely.
Jurors are generally free to speak publicly after discharge if they choose. The rule people half-remember, that jurors cannot discuss deliberations, is a rule of evidence about testifying to impeach a verdict, not a gag on private citizens. It also has nothing to operate on after a mistrial, because there is no verdict.
Judges sometimes impound the list of empanelled jurors for a period after a high-profile case, usually citing juror safety. That seals the court’s list. It does not stop an individual juror from identifying themselves, which is a distinction that surprises people every time it comes up.
Do civil cases have hung juries too?
They can, but it is harder, because the unanimity requirement is different.
Criminal verdicts in Massachusetts must be unanimous. Civil verdicts generally need not be, which means a civil jury can return a verdict over the objection of a minority of its members and simply does not hang as easily.
The burden of proof differs too. A civil plaintiff must prove the case by a preponderance of the evidence, meaning more likely than not. A criminal prosecutor must prove it beyond a reasonable doubt. That gap is why the same underlying events can produce a civil judgment and no criminal conviction, which is not an inconsistency, it is two different questions answered under two different standards.
The vocabulary, briefly
- Mistrial meaning: a trial terminated by the judge before a verdict is returned
- Hung jury meaning: a jury that cannot reach the unanimity a verdict requires
- Deadlock: the same thing, described from inside the room
- Tuey-Rodriquez charge: the Massachusetts instruction to a stuck jury
- Allen charge: the general American term for the same device
- Manifest necessity: the standard permitting retrial after a mistrial
- Nolle prosequi: the prosecutor formally dropping the charges
- Jeopardy attaches: the moment, at empanelment, when double jeopardy protection begins
Can the judge just accept a partial verdict?
Sometimes, and it is one of the least understood options on the table.
Where a defendant faces several charges, a jury may be able to return verdicts on the counts it has agreed about and hang only on the rest. The judge can take the agreed verdicts and declare a mistrial on the remainder.
The consequences are permanent for whatever was decided. An acquittal on one count is a real acquittal, and double jeopardy bars retrial on it regardless of what happens to the others. A conviction on one count stands and moves to sentencing.
The mechanics require care. A judge has to establish that the jury has genuinely reached agreement on particular counts rather than trading them against each other, and questioning a deliberating jury about where it stands is territory in which appellate courts have repeatedly found error.
When a jury reports deadlock on everything, as happened in the Clancy case, there is nothing partial to take.
If a jury hangs twice
Nothing in the constitution stops a third trial. Manifest necessity does not run out after two attempts, and prosecutors have occasionally tried cases three times.
What changes is everything other than the law. A second hung jury is powerful evidence that the case does not persuade twelve randomly selected people, and prosecutors who press on after two deadlocks face an obvious question about the use of public resources. Judges have tools to manage repeat prosecutions, and defence counsel will invoke fairness even where double jeopardy does not strictly apply.
In practice most cases that hang twice end without a third trial, by dismissal or agreement rather than by rule.
The Massachusetts case everyone is asking about
Most people reading this arrived because of a specific trial. The Lindsay Clancy prosecution ended in a mistrial in September 2026 after seven days of deliberation, with the jury reportedly split eleven to one, and a Tuey-Rodriquez charge given along the way.
Every principle above applies to it directly. There is no verdict, so nothing was decided. The charges are still pending. The Commonwealth may retry, and the district attorney alone decides whether to. The eleven to one split has no legal weight, though it has considerable practical weight in any negotiation.
We have covered what happens next in that case, what three jurors said publicly about the deliberations, and the defence push for a negotiated resolution. For the underlying illness at issue in that trial, see our explainer on postpartum psychosis and the law.
This article is general information about Massachusetts criminal procedure and is not legal advice. If you are facing charges, the answers depend on facts specific to your case, and you should speak to a lawyer.