What Is a Mistrial in a Criminal Case

Thanks for visiting Spodek Law Group – managed by Todd Spodek, a second-generation law firm with over 40 years of combined experience defending clients in criminal cases. A mistrial means the judge terminates the trial before verdict. The jury doesn’t reach a decision, the proceeding ends incomplete. Sounds like a win for defendants, right? Trial stopped, charges dismissed, you go home? Not remotely. Mistrials almost never mean dismissal – they mean do-over. Prosecutors get another chance to convict you, refine their strategy based on what failed the first time, patch the holes your defense attorney exploited. You’ve shown them your entire playbook, they’ve shown you theirs, and now they rebuild knowing exactly what to expect.

At Spodek Law Group – we’ve handled dozens of mistrials in New York courts. What clients never understand until it happens: mistrials favor the prosecution. You burned time, money, emotional energy preparing for trial. You revealed your defense theory, cross-examination strategy, expert witnesses, alibi evidence. Prosecutors take notes, identify what worked against them, come back stronger. Meanwhile you’re exhausted, possibly broke from legal fees, facing the same charges with a prosecutor who’s had months to prepare countermeasures.

Two Types – Only One Gets You Out

Manifest necessity means something made continuing impossible or fundamentally unfair: hung jury, juror misconduct, procedural error so severe the trial can’t continue. Judge declares mistrial, prosecution can retry you. No double jeopardy protection because there was no acquittal or conviction – the trial simply didn’t finish. You’re back to square one except prosecutors know your strategy.

Mistrial with prejudice means the trial ends and prosecutors can’t retry you. This almost never happens. Judges grant it only when the government caused the mistrial through intentional misconduct or gross negligence, and retrial would violate double jeopardy. Example: prosecutor deliberately triggers mistrial by mentioning inadmissible evidence in opening statement after judge explicitly ordered them not to. The prosecutor poisoned the jury intentionally to escape a losing trial and get a second chance. Court declares mistrial with prejudice – case dismissed, charges can’t be refiled. But proving prosecutorial intent requires showing they sabotaged their own case deliberately, which courts rarely find.

Hung Juries

Jury can’t reach unanimous verdict after hours or days of deliberation – judge declares mistrial based on manifest necessity. Prosecutors retry the case. Why doesn’t this violate double jeopardy? Because supposedly the hung jury represents circumstances beyond anyone’s control, a “manifest necessity” that made completing trial impossible. But that’s often false. Juries hang for reasons prosecutors create: overcharging defendants with crimes they clearly didn’t commit, forcing jurors into all-or-nothing choices that produce deadlock. Charging murder when the evidence supports manslaughter at best – some jurors won’t convict on murder, some won’t accept the lesser charge, jury hangs. Prosecutors could have charged appropriately from the start, but overcharging gives them two bites at conviction. First trial hangs? They’ve learned which evidence persuaded jurors toward acquittal and which evidence supported conviction. Second trial they adjust – maybe they reduce the charge to what it should have been initially, offer different jury instructions, exclude certain defense evidence based on rulings from the first trial.

Defense attorneys sometimes push for mistrials when trials go badly – we see the jury turning against our client, the judge making adverse rulings, evidence coming in that shouldn’t. Move for mistrial and hope the judge grants it so we get another chance. Judges rarely grant defense-requested mistrials unless there’s genuine procedural error, because they know it just restarts the process.

When Deadlock Actually Helps

Sometimes hung juries pressure prosecutors into dismissing charges or offering better plea deals. If a jury hung 11-1 for acquittal, prosecutors know their case is weak. Retrying it risks another hung jury or outright acquittal. They might dismiss charges, reduce to lesser offenses, or offer probation instead of prison. Your attorney should leverage mistrial outcomes during plea negotiations – “your case hung because the evidence was weak, the jury didn’t believe your witnesses, offer my client a deal that reflects that reality.” But if the jury hung 11-1 for conviction, prosecutors feel emboldened. They came within one juror of conviction, so they’ll retry aggressively.

The Allen Charge: Judicial Coercion

Jury says they’re deadlocked. Instead of declaring mistrial, judge gives them the “Allen charge” (also called dynamite charge) – instructions pressuring them to reach verdict. “You’ve deliberated for X hours. Trials are expensive. Retrying this case wastes resources. A future jury won’t be more qualified than you. You should reconsider your positions and try harder to agree.” Judges frame this as encouragement, but it’s coercion. Jurors hear: don’t hang this jury or you’re wasting everyone’s time. Allen charges disproportionately pressure minority jurors toward conviction. If eleven jurors vote guilty and one votes not guilty, that holdout feels enormous pressure to change their vote after the judge implies they’re being unreasonable. The instruction doesn’t explicitly say “the minority should yield to the majority,” but that’s the practical effect. Judges give Allen charges to avoid mistrials because mistrials clog court calendars – getting a verdict, any verdict, is preferable to starting over.

Some jurisdictions prohibit or limit Allen charges because they’re coercive, but New York allows them. Your defense attorney should object if the Allen charge is given too early (before jury has deliberated long enough to genuinely be deadlocked) or if the instruction pressures jurors toward a particular verdict.

Why Prosecutorial Misconduct Rarely Ends Cases

Prosecutor commits misconduct during trial – mentions defendant’s prior bad acts that were ruled inadmissible, makes improper statements during closing argument, withholds exculpatory evidence. Defense moves for mistrial. Even when judges grant the mistrial, they almost never grant it with prejudice unless the misconduct was intentional and egregious.

Mistrial with prejudice requires showing (1) prosecutorial conduct was intended to provoke mistrial or was so improper that retrial would be fundamentally unfair, and (2) no lesser remedy (like jury instruction to disregard the improper statement) would cure the prejudice. Prosecutors know this standard and exploit it. They push boundaries constantly, commit “accidental” misconduct that benefits their case, get a mistrial declared, then retry the defendant with a stern warning from the judge. The warning means nothing – they already got the mistrial they wanted.

Intentional misconduct is almost impossible to prove. Prosecutor mentions defendant’s inadmissible prior conviction during opening? They claim it was an accidental slip. Prosecutor makes improper argument? They claim they misunderstood the rules. Courts give prosecutors the benefit of the doubt because finding intentional misconduct requires sanctioning an officer of the court.

After Mistrial

Prosecution decides whether to retry. They almost always do unless the case is weak or the mistrial revealed fatal flaws in their evidence. Retrial proceeds like a new trial – new jury, new voir dire, new opening statements. But both sides know what happened in the first trial. Prosecutors know which witnesses were effective and which weren’t. They know your defense theory. They’ve seen your cross-examination approach. You’ve lost the element of surprise.

Defense strategy must adapt. You can’t use the exact same approach because prosecutors will anticipate and counter it. But you also can’t abandon what worked – if your alibi witness persuaded jurors last time, you need that witness again. The advantage defendants have is that prosecutors still must prove guilt beyond reasonable doubt, and if they struggled the first time, they’ll struggle again unless they’ve found new evidence or significantly improved their presentation.

Mistrials extend cases for months or years. First trial took six months from indictment to mistrial? Add another six months minimum for retrial. Court calendars are congested – getting a new trial date takes time. During this period you’re still under the same restrictions: bail conditions, travel limitations, uncertainty about your future. The emotional and financial toll of prolonged criminal proceedings can be devastating, which is exactly what prosecutors count on when deciding whether to retry after mistrial. At Spodek Law Group, we handle mistrials by treating them as intelligence-gathering for round two. What evidence resonated with jurors? Which arguments fell flat? How can we refine our approach to turn a hung jury into an acquittal? We’re available 24/7. Call us.