• Jay P. Mykytiuk
    Jay P. Mykytiuk Criminal Defense Attorney
    Washington, DC & Northern VA
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When a Tie is Really a Win: Hung juries and Mistrials

The saying goes that when a game ends in a tie it’s like kissing your sister—not very appetizing for most of us without incestuous impulses. But when you’re talking about a jury trial, a “tie” is usually a win for the defendant, and a loss for the government. But let’s back up. All persons charged with a felony or one of a few specific misdemeanors (including DUI Second offense and Assault on a police officer) in Washington, D.C. are entitled to a trial by jury—a trial before 12 members of the community. In a jury trial, the government must convince these 12 people beyond a reasonable doubt that a defendant committed the crime or crimes he is charged with.

To find a defendant guilty, the decision to convict must be unanimous. On the flip side, to find the defendant not-guilty, the jury must also vote unanimously for aquittal. So what happens when the jury members can’t come to a unanimous decision, and are unable to deliver a verdict of either guilty or not-guilty? We call this a deadlocked or hung jury. And when this happens, the judge declares a mistrial and sends the jury home. Neither side wins, and we have our “tie.” Nothing gets resolved and it’s a bad outcome for everyone, right? Not so fast.

When a prosecutor brings the full weight of government resources—money and personnel—against a defendant, they expect to get a conviction. Theoretically, the government decides to prosecute only cases in which they believe the defendant is guilty and they think they can prove it. When they fail to do that, they’ve lost. And a loss for the government is almost always a win for the defendant. How big a win depends on the defendant’s individual circumstances.

There are several ways that a defendant may benefit from a hung jury. First, the government may choose not to have a second trial, and may dismiss the case instead. This is only likely to happen if the jury that deadlocked had more votes for not-guilty than guilty. Obviously, this is the best possible outcome, because the case is over. Short of dismissing the case, the government may make a more generous plea offer. This may look like a felony plea with minimal or no jail time, or a plea to a misdemeanor offense. In very serious cases, including gun cases, this may not be a likely outcome. But even if the government decides to rebring the case, a defendant who is not in custody gains the benefit of time and freedom. I tried a case in January of 2016 that ended in a deadlocked jury and a mistrial. This defendant faces very serious charges, and the government chose to rebring the case. However, as of this writing, over a year later, the defendant is still awaiting his second trial. Regardless of the outcome of trial #2, he gained extra time to be with his family and to live his life. The government is not too pleased with that, and when they’re unhappy, I am very happy.

Many defendants are confused about what happens after a mistrial is declared, and don’t understand why the case is not over. I’m often asked about the concept of “double jeopardy,” and why it doesn’t apply to them. “Double jeopardy,” is a legal protection that prevents the government from trying a person more than once for the same crime. Basically, it doesn’t allow the government to lose a case, but then try again with a new jury. But this protection does not kick-in after a mistrial has been declared. A mistrial, in effect, means that no trial occurred. It’s wiped away, and everything starts from the beginning. Under those circumstances, the government has every right to take another bite at the apple. Whether they should do that is a whole other matter.

Obviously, your Washington, D.C. criminal defense lawyer seeks to win every case. There are very few more satisfying experiences for a zealous attorney than to hear a jury say “not-guilty.” But when David goes up against Goliath, sometimes it’s enough to live to fight another day. If you’ve been arrested for a misdemeanor or felony matter in Washington, D.C., contact Jay Mykytiuk Trial Attorney for a consultation today.