Deadlocked/hung juries

A deadlocked or hung jury is one where the number of jurors who agree on a verdict falls short of what is required to render a verdict. (Note that since many criminal and civil cases involve more than one charge or claim, it is possible for a jury to be partially deadlocked in that it has the required number of votes to return a verdict on some charge or claim, but not on another.)

When the judge is first informed that the jury is deadlocked, almost every jurisdiction has some version of an instruction the judge can give to encourage the jury to continue to deliberate. This is usually called an “Allen instruction” or “Allen charge” after a famous Supreme Court case from 1898 that authorized the instruction, and is also referred to as a “dynamite” charge (designed to blast the log-jam of disagreement). To read dynamite charges from selected jurisdictions, click here.  A judge must use a dynamite charge carefully, though—an appellate court can reverse a verdict that it believes resulted from a dynamite charge that was delivered prematurely, in overly coercive language, or was repeated too often.

If the judge becomes convinced that the deadlock will persist, the judge will declare a mistrial, and the case will be set for retrial. (A mistrial in a criminal case due to a hung jury has long been held not to bar a retrial under the Double Jeopardy Clause.) In the meantime, the parties often plea bargain or settle the case in light of the hung jury, particularly if the judge elicits what the count was on each side of the vote.

The National Center for State Courts and the National Institute of Justice are conducting a massive study of the prevalence and causes of hung juries covering all federal districts from 1980-1997 and thirty-two counties across fourteen states from 1996-1998. To briefly summarize the findings so far:

• As to prevalence, the study found that an average of six percent of criminal juries deadlocked, although this average masks significant variations in rates among districts and counties. The deadlock percentage in civil cases was significantly less, particularly in federal court where it was near or under one percent through the entire period of 1980-1997.
• As to causes of deadlock, they were varied, but the most prevalent one was predictable—that the evidence in the case was not sufficiently clear-cut in favor of either party.
• Click here to go to the Web site where this entire study is available.