Legal experts explain a hung jury and what comes next

    Baltimore police officers block the street in front of the courthouse after a mistrial was declared in the manslaughter trial of Officer William Porter, one of six Baltimore city police officers charged in connection to the death of Freddie Gray, on Wednesday, Dec. 16, 2015, in Baltimore. (AP Photo/Jose Luis Magana)

    After a hung jury, the judge declared a mistrial in the case of Officer William Porter, the first of six Baltimore Police Officers to go to trial in the death of Freddie Gray.

    Chicago-Kent College of Law Professor Nancy Marder, whose research and writing focuses on the jury, explained that a hung jury means that "one or more of the jurors disagreed with the other, meaning the jury hasn't reached unanimity."

    In the Porter case, the jury was charged with making a unanimous decision on the four counts Porter faced: involuntary manslaughter, assault/second degree and misconduct in office.

    A hung jury is "not very common," according to Marder.

    "If it were very common we would have a problem because it would mean we were retrying cases all the time; it's really reserved for unusual cases," Marder explained.


    Marder elaborated that those kinds of cases, "strike the jury as particularly complicated."

    One of the other situations in which a jury can end up hung, which Marder described as "less predictable," is "when you really have strongly held points of view in the jury room and you just can't reach agreement."

    "Each side and position feels like it has to stick to what it believes."

    Asked if a jury telling a judge it was deadlocked - as was the case in the Porter ruling - may have signaled disagreement, Marder described it as, "a good indicator."

    However, Marder noted, "that doesn't happen all the time."

    "Oftentimes a jury can go out to the judge and say we're deadlocked and the judge (in Federal court) delivers an Allen charge."

    An Allen charge instructs jurors in the minority to reconsider to avoid a mistrial, but Marder noted, "of course you don't have to give in."

    "It's not coercing a verdict but it's putting some pressure on the jury to try some more," Marder described.

    "Oftentimes that will move the deadlocked jury to a verdict."

    Marder explained that the one thing most people don't realize about hung juries is, "it's really difficult to be a hold-out juror."

    "There's a lot of pressure to go along with the other jurors; it's very hard to stand up and say 'I see the case in a different way.'"

    In some cases, Marder described,"it's only one or two dissenting jurors, and they end up going along with the majority. "

    "Sometimes you get one person who is able to withstand that pressure, or you get a few and there's strength in numbers."

    If a jury is hung the judge declares a mistrial, and it is up to the prosecutor to decide if he or she wants to retry the case, Marder explained.

    "We have an impasse, a deadlocked jury. The judge accepted that the jury is hung so the judge declared a mistrial," Marder said.

    "Now the ball is in the prosecution's court to decide whether to retry the case."

    When deciding whether or not to retry a case, one consideration a prosecutor needs to have is, "whether it is in the public interest to retry the case," explained Cynthia Lee, who teaches criminal law and criminal procedure at The George Washington University Law School and is the author of "Murder and the Reasonable Man."

    "Another consideration is whether it is worth the time and resources to retry the case," Lee explained.

    "The government will consider whether it has a good chance of obtaining a conviction if it retries the defendant."

    Lee noted that the government often benefits, "when a case is retried following a mistrial because it can learn from mistakes it might have made at the first trial."

    "For example, if a particular government witness was weak or not very credible on the stand, the prosecutor may choose not to put the same witness on the stand at the retrial."

    When a case is retried, Lee explained, "the first trial serves as a dress rehearsal for the prosecution."

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