I have watched a lot of juries go out. I have watched a few come back and say they can't do it.
And every single time, the same thing happens outside the courtroom. Somebody sees "hung jury" on their phone and reads it as a win. On social media right now, with the Lindsay Clancy case in deliberations, I am seeing people say the case is over. That she's not guilty. That she won.
That is not what a hung jury means. It is not close to what a hung jury means.
So let me walk through what actually happens when twelve people can't agree, because almost none of it works the way television has taught people it works.
A hung jury is not an acquittal
Start here, because everything else follows from it.
A verdict in a criminal case has to be unanimous. All twelve. If the jury cannot get there, there is no verdict at all. Not guilty, not not guilty. Nothing.
The case doesn't end. It just doesn't finish.
The judge declares a mistrial, the jury goes home, and the case sits exactly where it sat before the jury was ever empaneled, except that both sides now know a great deal more than they did.
The judge is not going to just send everybody home
Here's a useful exercise. Put yourself in the judge's seat for a minute.
You have been running this trial for four or five weeks. Hundreds of exhibits. Witness after witness. Enormous cost, enormous time, an extraordinary amount of work by both sides and by the court. And the jury sends out a note saying they can't decide.
Do you say okay, thanks, go home?
Of course not. That seems a little extreme. And the law agrees with you. There are mechanics built into this. Judges have an outline of what they are supposed to do, and what they are required to do, and "we'll call it a day" is not on the list.
The first move is usually gentle. Go back in, keep working, keep trying.
If they come back again and say they are stuck, that's when the judge gives what is called the Tuey-Rodriguez instruction. It is a little more forceful. It asks jurors to listen to each other, to reconsider their own positions, to look at the evidence again and make sure they are getting this right.
But it is carefully not coercive, and that distinction matters. Nobody wants a verdict that got squeezed out of a juror who caved because they were tired. That is not a verdict anybody can live with. What everyone wants, prosecution, defense, and the judge alike, is a real one.
I will tell you honestly: once that instruction goes out, it is rare to get a verdict. Rare, not impossible. I had a case recently out in Springfield where the jury was hung, the judge gave the Tuey-Rodriguez instruction, and they came back with a verdict. It happens. But if you are betting, you bet on a hung jury.
Eleven to one is still nothing
This is the one that generates the most heat.
Say the jury splits eleven to one. Eleven for guilty, one holding out for not guilty. Or the reverse, eleven for not guilty and one for guilty. They go back and forth in that room, they can't move each other, and they come out deadlocked.
There is no verdict. Not "almost a verdict." Not "morally a verdict." None.
We saw this play out in the Karen Read case. After the mistrial, jurors spoke publicly about how the room had broken down, and the reporting suggested it leaned heavily one direction. The defense understandably wanted to argue that was how the case should have come out.
That is not how it works. Unless we have an actual verdict, unanimous, announced in open court, on the record, taken by the judge, we do not have a verdict.
And there's a practical reason for that rule, not just a formal one. The second those jurors walk out of the courtroom, everything changes. They are back on social media. They are watching the news coverage. They are hearing their family's opinions at dinner. They are exposed to every single thing the court worked to keep away from them during the trial. What a juror says a week later is a different thing than what a juror says under oath in a jury box.
Karen Read was tried a second time. That is what happens.
Double jeopardy has nothing to do with this
Every time there's a hung jury, somebody asks: wait, what about double jeopardy? You can't try someone twice.
Movies get this wrong. Television gets this wrong constantly.
Double jeopardy protects you from being tried again after a verdict. That is the key word. Verdict. If a jury hangs, there was never a verdict, so double jeopardy doesn't attach. The Commonwealth can bring the case again. And, in theory, again.
That is just the reality of it. In a hung jury situation, double jeopardy has no application at all.
So what actually happens next?
Three doors.
The Commonwealth can drop the case. They can decide it isn't worth doing again and walk away. In a murder case, this is very, very unlikely.
The two sides can work out a plea. The defense and the prosecution agree on a charge and an agreed-upon sentence, the judge has to accept it, and the case ends there. A hung jury is one of the most common things that gets serious plea discussions moving, because it is the moment a prosecutor has to admit out loud that there is a problem with the case.
Or we try it again. In a murder case, this is the likely one.
The second trial is not a rerun
This is the part people underestimate.
Everything starts over from scratch. New jury, sixteen of them empaneled with four alternates. Possibly a different judge. New opening statements. Witnesses called live all over again, because the new jurors have to hear the testimony themselves.
And both sides get to rebuild.
The prosecution gets to fix what didn't work. They can call witnesses they didn't call the first time and keep witnesses off the stand who hurt them. If a theme in the opening didn't land the way they hoped, it doesn't come back. I would expect a lot of that here.
The defense gets to do the same thing. They have now watched the Commonwealth's entire case, live, start to finish. They know which witnesses were strong and which weren't. They know which arguments hit and which ones died.
But the real advantage is the transcript.
Every one of those witnesses is now locked in. They said what they said, under oath, on the record, and it is all written down. If a witness comes back in the second trial and shades the testimony even slightly, the defense has the prior transcript in hand and can put it right in front of them. That is impeachment, and it is how you make a witness look like they are changing their story.
In my opinion, that is a real advantage for the defense going into a second trial. More firepower than they had the first time.
The flip side is brutal, and it belongs in the same paragraph: a retrial can be a year out, and in a case like this the defendant stays in custody the entire time. That is not a small thing. That is the whole thing.
One more wrinkle: a verdict on some counts, not others
Here's a scenario people aren't thinking about.
What if the jury reaches a unanimous verdict on one charge but deadlocks on the others? Say a conviction on one count, and no agreement on the remaining two.
The judge can take the verdict on that count and declare a mistrial on the rest. That is a real possibility.
Is it likely in this case? Probably not. The facts here are largely all-or-nothing, all in or all out. But it is on the board, and it is worth understanding before it happens rather than after.
And if the verdict is lack of criminal responsibility
One more thing worth clearing up, because I see it misunderstood constantly.
In Massachusetts we don't call it the insanity defense. Technically it is lack of criminal responsibility. And once that issue is properly in the case, the burden does not sit with the defendant. It sits with the Commonwealth. They have to prove she was criminally responsible at the time.
Now assume the verdict comes back not guilty by reason of lack of criminal responsibility. Here is what does not happen: she does not walk out of that courtroom a free woman.
That is not how it works.
What happens instead is a court determination and, in all likelihood, commitment to a locked treatment facility. She stays there until it is determined that she is no longer a danger to herself or to others. That could be a long time. It is not a release. It is a different form of custody with a different door out, and the door only opens when a court says it opens.
So is a hung jury good or bad?
Honestly? Both sides can look at the same result and see completely different things, and both of them can be right.
From the defense side, a hung jury shows weakness in the Commonwealth's case. You get the transcripts. You get to rebuild. But you also have to try the whole case again, you risk the entire thing a second time, and most importantly your client stays locked up until that day comes, which could be a year away.
From the prosecution side, you have just been told by twelve citizens that you have a problem. Maybe you fix it. Maybe you go find a plea.
I have stopped thinking about it as good or bad. What it really is, is a fork in the road. Both sides have to make new decisions. New theories. Reassess their own case, reassess the other side's case, and figure out the best way forward for their client, whether that client is the Commonwealth or the defendant.
Those decisions are coming, and they will get made soon.
Whatever you think should happen in this case, understand what a hung jury actually is before you decide it happened. It is not a win. It is not an ending.
It is a pause, and then everybody goes back to work.