How Many Bites of the Apple?

A prosecutor friend of mine recently set a fifth trial date in a homicide case where the jury has been unable to reach a verdict in the previous trials. When I was prosecuting, I was asked to handle the fourth retrial of another case where previous juries were similarly unable to reach a verdict. (Once again, the jury was unable to reach a verdict and we decided not to try the case a fifth time). Just two weeks ago, the government announced it would not retry reputed mobster John “Junior” Gotti after three attempts all resulted in hung juries. How many tries should the government get to convict a defendant? It seems to me that the vote counts in the previous trials should be one of the most important factors — if the jury is hanging 11-1 for acquittal every time, that is a case that pretty clearly needs to be brought to a close. The nature of the criminal charges seems to be another — the government would no doubt be more willing to continue to try to obtain a conviction in a particularly gruesome murder case than in a shoplifting case. Is anyone aware of any jurisdictions with firm rules on the issue?

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1 Response

  1. Ethan Leib says:

    Perhaps not quite what you are looking for, here’s a statistical note from my “Supermajoritarianism & the American Criminal Jury” (available at:


    JURIES AND JURY TRIALS 23 (2005), available at (one-third of the cases that produce hung

    juries get re-tried; half lead to dismissals or plea agreements) (citing PAULA L. HANNAFORDAGOR

    ET AL., ARE HUNG JURIES A PROBLEM?, 83-84 (2002)).”