A Hung or Deadlocked Jury and the Mistrial That Follows

Why a Deadlock Mistrial Is a Different Animal

Most mistrials in Texas respond to an incurable error — an inflammatory argument or a blurted piece of inadmissible evidence. A deadlock mistrial is different. Nothing has gone wrong with the trial; the jury has simply reached an honest impasse. The legal question is not whether an error can be cured, but whether the jury can ever agree.

That difference matters because the two kinds of mistrial run on different engines. An error-based mistrial turns on prejudice and the incurable-error standard. A deadlock mistrial turns on a statute — article 36.31 — and on the constitutional doctrine of manifest necessity, which asks whether ending the trial is genuinely necessary.

The stakes for the defendant are also different. A hung jury is not an acquittal. The jury’s failure to agree does not resolve the charges one way or the other, so the case remains pending and the State may ordinarily bring it again. For a defendant, that reality drives the strategic decisions this page describes: whether to push for a mistrial, when to resist a supplemental instruction that pressures the holdouts, and how to preserve any argument that the discharge was premature. The rest of this guide walks through the statute, the Allen charge, the manifest-necessity standard, and the double-jeopardy consequences of a hung jury.

When May a Texas Court Discharge a Deadlocked Jury?

Article 36.31 gives a Texas trial court two paths to discharge a jury that cannot agree. Either both parties consent to the discharge, or the court, in its discretion, discharges the jury after it has been kept together long enough that agreement has become “altogether improbable.” There is no fixed number of hours that makes a jury officially hung.

The statute’s text is short and controlling. It provides that after the cause is submitted to the jury, the jury “may be discharged when it cannot agree and both parties consent to its discharge; or the court may in its discretion discharge it where it has been kept together for such time as to render it altogether improbable that it can agree.” The second path — discretionary discharge — is the one that matters most, because the State rarely consents to a discharge that ends its prosecution without a verdict.

How long is long enough? Texas leaves that to the trial judge. As the Court of Criminal Appeals recognized in Howard v. State, the length of time a jury may be held for deliberation rests in the discretion of the trial judge, and there is no set time limit for jury deliberation. A reviewing court will not reverse unless the record shows the trial court abused that discretion. The judge weighs practical realities: the length and complexity of the trial, the volume of evidence, the number of charges, how the jury has communicated about its progress, and how firmly it reports being stuck.

Because the standard is elastic, the decision usually rests on the jury’s own notes. A single note reporting difficulty rarely justifies discharge; repeated notes, after adequate deliberation, describing a firm and final division are what move a court toward finding that agreement is altogether improbable.

The Allen (Dynamite) Charge Usually Comes First

Before discharging a deadlocked jury, a Texas judge usually gives a supplemental instruction — the Allen charge, sometimes called the “dynamite” charge — urging the jurors to keep trying. The charge is permissible, but it must not coerce jurors into surrendering honest convictions just to produce a verdict.

Howard confirmed that the use of a supplemental charge to a deadlocked jury has long been sanctioned by both the Texas Court of Criminal Appeals and the United States Supreme Court. The charge reminds jurors that a great deal of time and effort has gone into the trial, asks them to consult with one another and consider each other’s views, and encourages them to re-examine their positions — while telling them not to surrender an honest belief solely because of the opinions of other jurors or just to reach a verdict.

The line the charge cannot cross is coercion. Howard explained that the central inquiry is the charge’s coercive effect in its context and under all the circumstances. A charge that asks all jurors to reconsider in the face of disagreement is not coercive on its face; a charge that singles out the minority, tacitly instructs holdouts to give in, or is shaded toward one side is a different matter.

If the court gives an Allen charge, defense counsel should watch for these coercive features and object on the record, because a coercive charge that produces a verdict can itself be reversible error.

Manifest Necessity and the Deference Trial Judges Receive

When a judge declares a mistrial over a defendant’s objection, the Constitution requires a “manifest necessity” for doing so. A genuine deadlock is the textbook example, and the trial judge’s assessment that the jury is hung receives great deference from reviewing courts.

The Supreme Court’s decision in Arizona v. Washington placed jury deadlock at the easy end of the manifest-necessity spectrum, calling it “long considered the classic basis for a proper mistrial.” The Court held that while a “high degree” of necessity is required before a mistrial is appropriate, a trial judge’s decision to declare a mistrial when he considers the jury deadlocked is accorded great deference, and the judge need not make explicit findings or articulate every factor on the record.

Renico v. Lett reinforced how broad that discretion is. The Court reaffirmed that the decision whether to grant a mistrial for deadlock is reserved to the trial judge’s broad discretion, and stressed that it has never required a judge, before declaring a deadlock mistrial, to force the jury to deliberate for any minimum time, to question jurors individually, to consult with counsel, or even to give a supplemental instruction. Those steps are appropriate and common, but they are not constitutional prerequisites.

For the defense, the deference cuts both ways. It means a trial court’s deadlock finding is hard to overturn once it is genuinely supported by the record — but it also means the fight is about whether the record actually shows a genuine, final impasse, because that is the fact on which the whole doctrine rests.

Double Jeopardy: Can the State Retry a Hung Case?

A hung jury is not an acquittal, and retrial after a genuine deadlock does not violate double jeopardy. The reason is doctrinal: the jury’s failure to agree does not terminate the original jeopardy, so a second trial is not a second jeopardy. The exception is a mistrial declared without genuine necessity.

The Supreme Court settled the core rule in Richardson v. United States, holding that the failure of a jury to reach a verdict is not an event that terminates jeopardy, and that a retrial following a hung jury does not violate the Double Jeopardy Clause. Richardson traced the principle back more than a century and reaffirmed that a deadlock mistrial is a manifest necessity permitting the State one complete opportunity to seek a conviction. Renico applied the same rule and confirmed that retrial is permitted even without the defendant’s consent, so long as the judge exercised sound discretion in finding the jury deadlocked.

That is where the defense’s leverage lies. Because the rule protects only mistrials supported by a genuine deadlock, a mistrial declared prematurely — before the jury has truly reached an impasse, or on a judge’s hasty reaction to a first note — may not qualify as a manifest necessity. Arizona v. Washington applied the strictest scrutiny to mistrials that serve the prosecution’s advantage, and a discharge that was not genuinely necessary can, in the right case, bar retrial.

Preserving a double-jeopardy objection at the moment of discharge is therefore essential, because it is the only way to keep alive an argument that the mistrial was declared without the necessity the Constitution requires.

From the First Deadlock Note to Discharge

A deadlock rarely ends a trial on the first note. The typical sequence runs from an initial report of difficulty, through continued deliberation and often a supplemental charge, to a firmer report of impasse before the judge finally discharges the jury. Understanding that arc helps counsel time objections and requests.

The process usually begins with a note. A jury that reports early difficulty — sometimes within hours — will almost never be discharged on that basis alone, because the court cannot yet say that agreement is altogether improbable. The typical judicial response is to instruct the jury to keep deliberating and, if the impasse persists, to consider a supplemental Allen charge encouraging continued, good-faith discussion.

If deliberations continue and the jury sends a second or third note describing a firm and final division, the court’s calculus changes. At that point the judge weighs how long the jury has worked against the length and complexity of the trial, and often makes some inquiry into whether further deliberation would be useful. A careful judge asks that question without probing how the jury is split or in which direction, because pressing the numerical division risks the coercion problem described above.

Only after the record reflects a genuine impasse does the court discharge the jury under article 36.31 and declare a mistrial. Because there is no set time limit and the decision rests in the trial judge’s discretion, the timing varies widely — a short, simple trial may reach that point far sooner than a lengthy, document-heavy one.

Each stage is an opportunity for counsel. Early notes are the time to propose or object to a supplemental charge; later notes are the time to argue either that the jury should keep working or that it has genuinely reached the end of the road; and the moment of discharge is the time to make a record about whether the impasse was real, preserving any argument that the discharge was premature.

Defense Strategy When the Jury Reports It Is Stuck

A deadlock forces real-time decisions. The defense must judge whether a hung jury is a good outcome, whether to resist a supplemental charge that could pressure favorable holdouts, and how to preserve every objection — all while the trial is still live and the verdict remains uncertain.

The first judgment is whether to welcome the deadlock. A hung jury often signals that at least one juror is unpersuaded, which can be a strong position — but it is not a win. The case remains pending, and the State may retry it, plea negotiate from a position of new information, or, occasionally, dismiss. Counsel weighs the strength of the evidence, what the notes reveal about the division, and the client’s appetite for a second trial before deciding whether to press for discharge or to let deliberations continue.

The second judgment concerns the Allen charge. If the court proposes a supplemental charge, the defense should examine it for coercion — language that singles out the minority, demands a verdict, or shades toward the State — and object on the record to anything that crosses the line drawn in Howard. A coercive charge that then produces a conviction can be challenged on appeal, but only if the objection was made.

The third judgment is preservation. If the court moves to discharge the jury, counsel should make a record about whether the jury genuinely reached a final impasse and, where appropriate, lodge a double-jeopardy objection to a discharge that seems premature. Because the deadlock finding gets great deference, the record built at this moment is what any later challenge will stand on. Handled carefully, these steps protect the client whether the outcome is a favorable hung jury, a renewed negotiation, or a retrial.

Where This Fits

This guide is one of four situations that arise under the Motion for Mistrial. Start with the parent motion for the overall framework, or move to a related fact pattern:

What the Case Law Says

These decisions—verified against primary sources—control how this issue is litigated. Every case still turns on its own facts.

• Arizona v. Washington, 434 U.S. 497 (1978) — A genuinely deadlocked jury is the classic basis for a mistrial, and the trial judge's deadlock finding receives great deference.
• Richardson v. United States, 468 U.S. 317 (1984) — A jury's failure to agree does not terminate jeopardy, so retrial after a hung jury does not violate double jeopardy.
• Renico v. Lett, 559 U.S. 766 (2010) — The decision to declare a mistrial for jury deadlock rests in the trial judge's broad discretion and receives great deference.
• Howard v. State, 941 S.W.2d 102 (Tex. Crim. App. 1996) — A supplemental Allen charge urging deadlocked jurors to keep deliberating is permissible if it is not coercive in context.

General summaries of published opinions for information only — not predictions about any specific case.