Hung Jury and double jeopardy

[Drew1776]

How is declaring a jury "hung" constitutional? A person is innocent until proven guilt. If someone is tried and the jury fails to convict even if its just due to one juror that person is NOT guilty, correct? Everyone went through the motions of a trial and the defendant was not found guilty. By allowing the court to hear the case all over again, it would seem this would lead to double or triple or quadruple ... jeopardy. Does the court have the legal ability to keep prosecuting an individual in hung jury cases for as long as they wish?

[Robert J. Kolker]

How is declaring a jury "hung" constitutional? A person is innocent until proven guilt. If someone is tried and the jury fails to convict even if its just due to one juror that person is NOT guilty, correct? Everyone went through the motions of a trial and the defendant was not found guilty. By allowing the court to hear the case all over again, it would seem this would lead to double or triple or quadruple ... jeopardy. Does the court have the legal ability to keep prosecuting an individual in hung jury cases for as long as they wish?

A hung jury means the trial was not valid. The indictment still stands. A hung jury is NOT an acquital. Very often the prosecution declines to retry an indicted individual when its best case leads to a hung jury, so the indicted individual, who is technically and legally innocent takes a walk in the sun. Sometimes, the court dismisses the case and the matter is done iwth. HOWEVER, the prosecution is within its power to retry the indicted individual as long as the court has not ordered the charges dropped. That is the way the System works.

Bob Kolker

[DavidOdden]

How is declaring a jury "hung" constitutional? A person is innocent until proven guilt.

And a person on trial who does get convicted is still innocent until that conviction. Until actually convicted, the person's status is "suspected, but innocent", even after a hung jury. Because there was no finding by the jury, the double jeopardy rule doesn't apply (you have to be found innocent or guilty to invoke the 5th).

If someone is tried and the jury fails to convict even if its just due to one juror that person is NOT guilty, correct?

If a person is arrested, he is not guilty. The fact of not having been proven guilty doesn't mean you can't be tried (obviously). Hence an actual finding, of innocence, distinguishes the merely accused from the accused and tried.

[D'kian]

How is declaring a jury "hung" constitutional? A person is innocent until proven guilt. If someone is tried and the jury fails to convict even if its just due to one juror that person is NOT guilty, correct?

I'm not sure. In lawyer shows, and that's where most of us learn about law (alas), the defense counsel often boats "I only need one juror." But reality is often vastly dissimilar from courtroom drama.

In any case, a hung jury refers to a jury that has not been capable to reach a decision. Therefore there's no judgement, therefore the defendant can be retried, at least as far as double jeopardy goes. It's about par with a mistrial for other reasons.

The double jeaopardy principle is so simple people often try to make it more complex. In simple terms it means that defendant found not guilty of a specific crime cannot be retried for that same crime. Nothing more or less than that. This means that if you are tried in state court for robbing the First National Bank on the corner of Main and Oak on or about noon of October 1st 2007 and are found not guilty, the feds cannot retry you in Federal court for the same offense. It does not mean you have liscence to rob every other bank on every other day in perpetuity.

The Rodney King case last decade was a violation of double jeopardy. The police officers were found not guilty, then were retried for ostenssibly a different offense (violating King's civil rights) in Federal court. But there was a "not guilty" veredict first.

[Drew1776]

Thanks for the responses

To quote the US Constitution

nor shall any person be subject for the same offense

to be twice put in jeopardy of life or limb

While a hung jury may mean the trial was not valid, or something of that nature, the suspect was never the less put in jeopordy. Re-trying him would do that again. The constitution seems pretty clear to me. So how is trying the same person twice (in this case) not double jeopordy? He is infact being tried for the same crime twice.

[Robert J. Kolker]

Thanks for the responses

To quote the US Constitution

While a hung jury may mean the trial was not valid, or something of that nature, the suspect was never the less put in jeopordy. Re-trying him would do that again. The constitution seems pretty clear to me. So how is trying the same person twice (in this case) not double jeopordy? He is infact being tried for the same crime twice.

The jeopardy consists of the -indictment-, not the trial. It is the -indictment- that renders the legally innocent person subject to the authority and constraints of the courts. People are not re-indicted. They are re-tried. Once a person has been acquitted of the charge on which he was -indicted- the indictment is nullified and that person cannot again be indicted for the same act on the same charge.

Bob Kolker

Edited September 29, 2007 by Robert J. Kolker

[B. Royce]

The jeopardy consists of the -indictment-, not the trial. It is the -indictment- that renders the legally innocent person subject to the authority and constraints of the courts. People are not re-indicted. They are re-tried. Once a person has been acquitted of the charge on which he was -indicted- the indictment is nullified and that person cannot again be indicted for the same act on the same charge.

Bob Kolker

One thing I don't understand. If a man is found innocent and can't be tried again for the same crime, even if new evidence is found, why can new evidence free a man who has been found guilty? Or, if there can't be two chances against a man, why can there be two chances for him?

[stephenmallory]

One thing I don't understand. If a man is found innocent and can't be tried again for the same crime, even if new evidence is found, why can new evidence free a man who has been found guilty? Or, if there can't be two chances against a man, why can there be two chances for him?

This position probably comes from the core belief that innnocence is man's natural state and guilt an abberation. That, when deciding the structure of a government, the innocence of in the individual is the side to lean towards when devising rules and procedures. The government must always be willing to protect the rights of it's citizens (including wrongly-convicted criminals) but must be very rigid and meticulous when proceeding to take away those rights.

The Double Jeapordy provision exists to restrain the government, and like any restraint on the government, it carries with it the risk that an actually evil person will escape justice. It can be thought of as a kind of agreed-upon deal with evil the purpose of which is to mitigate an even greater evil than the random criminal escaping justice: a government with the power to violate an individual's rights continuously and to hold him in legal jeapordy in perpetuity in the government's quest to discover and present such incontrovertible evidence.

[RationalBiker]

Or, if there can't be two chances against a man, why can there be two chances for him?

Why do you think these things should be consistent with each other?

[RationalBiker]

In actuality a man can be charged twice for the same crime (or incident) IF the crime occurred in some place that has joint jurisdiction and each jurisdiction has a law relevant to the crime. I think it is rare that it happens, but most often it happens in drug cases where the state and the federal government have overlapping laws and jurisdictions. I think what typically happens is the feds will handle the case if the fish is big enough and the lower jurisdiction helps as needed.

[Groovenstein]

For those interested in further investigation of RB's point, he is referring to what is called the "separate sovereigns" doctrine.

[B. Royce]

This position probably comes from the core belief that innnocence is man's natural state and guilt an abberation. That, when deciding the structure of a government, the innocence of in the individual is the side to lean towards when devising rules and procedures. The government must always be willing to protect the rights of it's citizens (including wrongly-convicted criminals) but must be very rigid and meticulous when proceeding to take away those rights.

The Double Jeapordy provision exists to restrain the government, and like any restraint on the government, it carries with it the risk that an actually evil person will escape justice. It can be thought of as a kind of agreed-upon deal with evil the purpose of which is to mitigate an even greater evil than the random criminal escaping justice: a government with the power to violate an individual's rights continuously and to hold him in legal jeapordy in perpetuity in the government's quest to discover and present such incontrovertible evidence.

Thank you. That makes sense.

[B. Royce]

Why do you think these things should be consistent with each other?

Well, I just don't like the idea of an actual guilty man getting away with it. But I am really thinking that DNA evidence seems such a sure thing (which, perhaps, it may not be), as it is regarded so in cases alledgedly proving a man's innocense.

[jws1776]

"Does the court have the legal ability to keep prosecuting an individual in hung jury cases for as long as they wish?"

No, in every state in the Union, a case can only be brought to court a third time after two hung jury cases and after the third hung jury, it has to be dismissed by the court. This gives prosecutors an incredible amount of room to work with defendants after the second hung jury and attempt to get the defendant to take a plea bargain rather than risk being convicted in the third trial after two hung jury cases.

The fact that a case can be retried after even one hung jury, is wrong for one reason mainly and it puts a defendant at an incredible disadvantage in the second and or third trial because most or all of his resources (assuming he used a private attorney) would have been expended in the first trial which if it results in a hung jury, leaves him or her having to finance his attorney for the second or third trial while the state has the resources already in place to pursue another trial. More importantly and the main issue involving a prosecutor's ability to pursue a second and third trial on the same charge relates to how the cased is tried. Prior to entering court for a second or third trial in lieu of a previous hung jury, a prosecutor can modify, change, and adjust his approach and direction with the prosecution and how he handles a different jury the second and or third time around. The strategical advantage that it offers the state in the sense that a prosecutor has an opportunity to asses and alter his prosecution and have a second chance in court is in itself wrong. It would not be as much of a problem for a defendant, if a prosecutor was required to handle the case in court the same way he did the first time and it was just a matter of presenting the same argument and case to a different jury. However, the gray area of double jeopardy comes into play, when a prosecutor is allowed to approach things differently and have a second chance with a different jury knowing where he might have made any mistakes in the first trial. In addition, the incredible amount of power inherently given to a prosecutor to bargain and offer a plea bargain after a hung jury in the first trial should not be allowed since a defendant is in a weaker position when forced to face the same charge(s) in court for a second or third time. Plea bargains, after a case has been brought to trial once and resulted in a hung jury, should not be allowed - this would force the state to seriously reconsider whether or not a case should be brought to trial again.

And to get even more in depth..........I think there should be a law that once a prosecutor offers a defandent a plea bargain at any point in time prior to a trial taking place that it should be admitted into evidence and known by a jury once and when a trial occurs and the plea bargain is not accepted. The fact that the state is allowed to offer a plea bargain in a case and not see it through to a trial, is an admission by default that the person might not have committed the crime they were charged with. A is A.........if someone is guilty of a crime and the evidence exists, a prosecutor should not be allowed to alter facts of reality and offer a plea bargain for a lesser charge. A jury should be allowed to know that if prior to a trial, even a second one after a hung jury on the first, if a prosectuor offered a reduced charge for a plea bargain as it is the only indicator they have other than assumed innocence until prooven guilty that a defendant might not have committed a crime.

jws

[Drew1776]

"Does the court have the legal ability to keep prosecuting an individual in hung jury cases for as long as they wish?"

No, in every state in the Union, a case can only be brought to court a third time after two hung jury cases and after the third hung jury, it has to be dismissed by the court. This gives prosecutors an incredible amount of room to work with defendants after the second hung jury and attempt to get the defendant to take a plea bargain rather than risk being convicted in the third trial after two hung jury cases.

The fact that a case can be retried after even one hung jury, is wrong for one reason mainly and it puts a defendant at an incredible disadvantage in the second and or third trial because most or all of his resources (assuming he used a private attorney) would have been expended in the first trial which if it results in a hung jury, leaves him or her having to finance his attorney for the second or third trial while the state has the resources already in place to pursue another trial. More importantly and the main issue involving a prosecutor's ability to pursue a second and third trial on the same charge relates to how the cased is tried. Prior to entering court for a second or third trial in lieu of a previous hung jury, a prosecutor can modify, change, and adjust his approach and direction with the prosecution and how he handles a different jury the second and or third time around. The strategical advantage that it offers the state in the sense that a prosecutor has an opportunity to asses and alter his prosecution and have a second chance in court is in itself wrong. It would not be as much of a problem for a defendant, if a prosecutor was required to handle the case in court the same way he did the first time and it was just a matter of presenting the same argument and case to a different jury. However, the gray area of double jeopardy comes into play, when a prosecutor is allowed to approach things differently and have a second chance with a different jury knowing where he might have made any mistakes in the first trial. In addition, the incredible amount of power inherently given to a prosecutor to bargain and offer a plea bargain after a hung jury in the first trial should not be allowed since a defendant is in a weaker position when forced to face the same charge(s) in court for a second or third time. Plea bargains, after a case has been brought to trial once and resulted in a hung jury, should not be allowed - this would force the state to seriously reconsider whether or not a case should be brought to trial again.

And to get even more in depth..........I think there should be a law that once a prosecutor offers a defandent a plea bargain at any point in time prior to a trial taking place that it should be admitted into evidence and known by a jury once and when a trial occurs and the plea bargain is not accepted. The fact that the state is allowed to offer a plea bargain in a case and not see it through to a trial, is an admission by default that the person might not have committed the crime they were charged with. A is A.........if someone is guilty of a crime and the evidence exists, a prosecutor should not be allowed to alter facts of reality and offer a plea bargain for a lesser charge. A jury should be allowed to know that if prior to a trial, even a second one after a hung jury on the first, if a prosectuor offered a reduced charge for a plea bargain as it is the only indicator they have other than assumed innocence until prooven guilty that a defendant might not have committed a crime.

jws

THANK YOU so much for your post. I did not realize that states had a limit on the number of times cases can be retried when hung juries are involved. Do you happen to have a source for this information?

If the point of the double jeopardy clause is to restrain the government from continually bringing your case to trial then a "hung jury" seems like a blatant attempt to step around that protection. As you have pointed out, trying a case over and over again requires the defendant to continue paying potentially high attorney fees and court costs.

Does anyone know how long the law around "hung juries" has been around? Meaning, assuming a prosecutor can prosecute a hung jury case, has this been around since the beginning of our country?