Updated September 2026 | The Bulldog Law | California Criminal Defense
A hung jury is a jury that cannot reach a unanimous verdict. California requires all twelve jurors to agree on guilty or not guilty, so if even one juror will not budge, there is no verdict. The judge declares a mistrial, the defendant is neither convicted nor acquitted, and the prosecutor gets to choose: retry the case, offer a plea deal, or dismiss it. Double jeopardy does not prevent a retrial after a hung jury, and if the prosecutor retries, the new trial generally has to begin within 60 days.
Most people assume a hung jury is close to a win. Sometimes it is. Sometimes it is a warning that the next jury will convict. Which one depends on details that never make it into the headline, like how the jurors split, which counts hung, and what the prosecutor learned watching the defense. We've had cases end with a hung jury where the client walked away a week later with a dismissal, and cases where the second trial was the real fight. This page explains how California handles a deadlocked jury, what your options are the morning after, and how to think about a retrial. If you're there right now, call us at (888) 928-1609 or reach us here.
Why one juror is enough
The California Constitution guarantees a unanimous verdict in criminal cases. That is not true everywhere; a couple of states allowed non-unanimous felony verdicts until the U.S. Supreme Court ended the practice in 2020. Here it has always been twelve to nothing. A jury that is eleven to one for guilty has not convicted anyone. A jury that is eleven to one for not guilty has not acquitted anyone. Both are hung, and the law treats them identically. The prosecutor, as we'll get to, does not.
Because one vote is enough, jury selection matters more in California than almost anywhere. Our page on how criminal juries are selected explains the process; the short version is that a defense lawyer picking a jury is often looking for one person who will hold a position under pressure, and a prosecutor is looking to eliminate exactly that person.
What the judge does when the jury says it's stuck
A jury that cannot agree sends a note. The judge's first move is almost never to declare a mistrial. Penal Code 1140 says a jury can be discharged without a verdict only when, after whatever time the court thinks is reasonable, it satisfactorily appears there is no reasonable probability the jurors can agree. Judges take that seriously. Trials are expensive, and a mistrial means doing it all again.
So the judge brings the jury back into the courtroom and asks a few careful questions. How many ballots have you taken? What is the numerical split? The judge can ask for the numbers, but not which way they lean; asking whether the majority favors guilt would be improper. Is there anything the court can do to help? California Rule of Court 2.1036 then gives the judge a menu: read testimony back, give additional instructions, clarify the law, or let the lawyers argue again on the specific point the jurors are stuck on. In our experience the readback is what moves most juries. A witness's exact words, heard a second time without the theater of the live testimony, land differently.
If none of that works and the foreperson says more time won't help, the judge declares a mistrial and discharges the jury. Sometimes that's on the first afternoon of deadlock; sometimes the judge sends them back for two more days first. There is no fixed rule, which is why a defense lawyer's objection to further deliberations, or to a coercive instruction, matters for the record.
The Allen charge, and why you won't hear one in California
In federal court and many states, a judge facing a deadlocked jury can give an Allen charge, an instruction that tells jurors in the minority to reconsider whether their doubts are reasonable, given that the majority disagrees. Defense lawyers call it the dynamite charge for a reason. California threw it out in 1977. In People v. Gainer, the state Supreme Court held that telling minority jurors to reexamine their views in light of the majority's, and telling the jury the case will have to be retried if they don't agree, is coercive and improper.
What California judges read instead is CALCRIM 3550: keep an open mind, talk to each other, but do not change a sincerely held view just to reach a verdict, and do not consider the consequences of failing to agree. That instruction protects the holdout. If a judge in California goes beyond it and pressures the jury, that is grounds for a new trial or an appeal.
After the mistrial: the prosecutor's three choices
The hung jury is not a verdict, so nothing is decided. The case goes back to the prosecutor's desk with three options.
Retry it. Penal Code 1141 expressly allows a new trial after a jury is discharged without a verdict, and the Double Jeopardy Clause does not stand in the way; the U.S. Supreme Court settled that in 1824 and has never wavered. Our page on double jeopardy explains why a hung jury is the classic example of a case that can be tried twice. If the prosecutor retries, Penal Code 1382 requires the new trial to begin within 60 days of the mistrial unless the defendant waives time. For a client in custody, that clock is a real constraint on the prosecutor.
Make a deal. This is the most common outcome. A prosecutor who watched a jury refuse to convict has just been told, in the most reliable way possible, what a room full of ordinary people thinks of the case. The offer that follows a hung jury is usually better than the one before trial, sometimes dramatically. Whether to take it depends on the same things that decided the first trial, plus everything both sides learned. Our page on no contest versus guilty pleas covers what to look for in the offer.
Dismiss it. Prosecutors dismiss after hung juries more often than the public realizes, usually quietly, under Penal Code 1385 in the interest of justice. A dismissal after a hung jury is normally one that can be refiled in theory, but rarely is; our guide to dismissals with and without prejudice explains the rules. The signs that push a prosecutor toward dismissal are the same signs that make a case weak in the first place, now confirmed by twelve strangers.
The split is everything
Jurors are free to talk after they are discharged, and both lawyers will try to talk to them in the hallway. What the prosecutor wants to know is the number. Eleven to one for conviction, with one holdout the other jurors describe as unreasonable, is a case the DA will almost certainly retry, and probably win. Six to six is a case the DA has to think hard about. Ten to two for acquittal is a case that usually gets dismissed or settled on the defense's terms within a few weeks.
What the defense wants to know is why. Which witness the jurors didn't believe, which piece of evidence they argued about, what they wished they'd been told. A hung jury is the only situation in criminal practice where the defense gets to interview the decision-makers and then try the case again with that knowledge. So does the prosecutor, of course. The second trial is rarely a rerun. Witnesses get better prepared, weak evidence gets dropped, and the lawyer who learned more from the first jury usually wins the second.
Partial verdicts: when the jury agrees on some counts
Juries often hang on one count and agree on others. The court takes the verdicts it can get. A guilty verdict on count one stands even if the jury hangs on count two, and the defendant can be sentenced on count one while the prosecutor decides what to do about the rest. An acquittal on one count is final; that charge can never be retried, and it can shape what the prosecutor is allowed to argue at a retrial on the remaining counts.
There is a California-specific twist that matters in cases charged with greater and lesser offenses. Suppose a jury is unanimous that the defendant is not guilty of murder but deadlocked between voluntary manslaughter and not guilty. Under People v. Stone, decided by the California Supreme Court in 2009, the judge must accept the jury's acquittal on the greater charge if the jurors have reached one, and the prosecutor can only retry the lesser. A judge who declares a blanket mistrial without asking whether the jury acquitted on the greater offense has made a serious error, and a defense lawyer needs to ask for that partial verdict before the jury is discharged. Our page on acquittal versus not guilty explains what an acquittal on a single count actually protects.
Mistrials for other reasons
A hung jury is the most common cause of a mistrial, but not the only one. A witness mentions the defendant's prior record when the judge had excluded it. A juror looks up the case online. A lawyer collapses, a juror's spouse dies, a fire alarm empties the courthouse for a week. In each case the judge decides whether the trial can continue fairly, and if not, declares a mistrial.
Who caused it matters for double jeopardy. If the defense asks for the mistrial, or consents to it, a retrial is allowed. If the judge declares one over the defense's objection, a retrial is allowed only if there was a manifest necessity for ending the trial; a hung jury is the textbook example, but a judge who declares a mistrial too quickly, without exploring alternatives, can bar the retrial entirely. And in one narrow situation the prosecution loses its second chance: when the prosecutor deliberately provoked the mistrial to escape a trial that was going badly. Proving that intent is hard, but it has been done.
Practical realities between the two trials
A defendant out on bail stays out; the bond continues through the retrial, and nothing has happened that changes it. A defendant in custody stays in, with credit for every day, and the 60-day rule becomes the defense's friend. Custody credits from before the first trial carry over to any eventual sentence. If the client posted cash bail, that money stays with the court until the case finally ends; our page on getting bail money back explains the timing.
For a non-citizen, a hung jury is a pause, not a resolution. There is no conviction to report, but there is also no acquittal to rely on, and an immigration hold that was waiting for the outcome keeps waiting. The retrial decision should be made with the immigration consequences of each possible outcome in front of the client, because a plea offered after a hung jury is sometimes structured in a way that avoids deportation and sometimes is not.
And one honest note about cost. Retrials are expensive, for the county and for the client paying a private lawyer. Prosecutors know this and sometimes count on it. A client who cannot afford a second trial is a client more likely to take a deal, and that reality is part of the negotiation whether anyone says it out loud. Talk about it with your lawyer early.
How often juries actually hang
Rarely, in the big picture. National studies put hung juries at roughly five to six percent of criminal jury trials, and California courts have historically run somewhat higher, particularly in Los Angeles. But those are trial numbers. Since well over ninety percent of California criminal cases end in a plea, a hung jury is an unusual event that happens only to the small fraction of defendants who went the distance. If you are one of them, you already know something about your case that most defendants never learn.
Frequently asked questions
Does a hung jury mean not guilty?
No. A hung jury means the twelve jurors could not agree, so there is no verdict either way. The defendant is not acquitted and not convicted. The judge declares a mistrial, and the prosecutor decides whether to try the case again. The practical difference from an acquittal is enormous: an acquittal ends the case forever, while a hung jury just resets it.
Can you be retried after a hung jury?
Yes. Double jeopardy does not stop a retrial after a hung jury, because the first trial never reached a verdict. Penal Code 1141 says so directly. There is no fixed limit on how many times a case can be retried, although judges become more willing to dismiss after a second or third hung jury, and prosecutors usually stop before that point on their own.
How many jurors does it take to hang a jury in California?
One. California requires a unanimous verdict in criminal cases, so a single holdout in either direction prevents a verdict. An 11 to 1 split for conviction is just as hung as a 6 to 6 split, although the prosecutor will treat those two situations very differently when deciding whether to retry.
What is the difference between a mistrial and a hung jury?
A hung jury is one reason for a mistrial. A mistrial is any trial that ends before a verdict, and it can be caused by juror misconduct, a witness blurting out inadmissible evidence, a juror or lawyer getting sick, or a jury that cannot agree. When the cause is a deadlocked jury, people say hung jury; the court paperwork says mistrial.
What is an Allen charge and does California use it?
An Allen charge is an instruction, named after an 1896 U.S. Supreme Court case, that tells a deadlocked jury to keep deliberating and urges jurors in the minority to reconsider their views. California courts do not use it. The California Supreme Court held in People v. Gainer that pressuring minority jurors to give way is coercive. California judges instead read CALCRIM 3550, which tells jurors to keep an open mind but never to change a sincerely held view just to reach a verdict.
Related guides
- Double jeopardy: the protection against being tried twice
- Acquitted vs. not guilty
- What happens if you don't show up for jury duty
Hung jury? The next thirty days decide the case
The period between a mistrial and the prosecutor's decision is when a defense lawyer can do the most: interview jurors, press for dismissal, negotiate from strength, and prepare a second trial that fixes what went wrong in the first. The Bulldog Law tries cases across California and handles retrials after hung juries. Visit our criminal defense page, call (888) 928-1609, or send us a message.