Legal Analysis: The Jurisprudence of Hung Juries; America and Australia

The Lindsay Clancy trial raises a question considerably larger than the fate of one defendant. Suppose a jury hears the entire prosecution and defence cases, deliberates at length, receives the judge's strongest permissible encouragement to reach agreement, and still cannot return a unanimous verdict. A mistrial follows. Public anger is enormous. Three children are dead, the case has received intense national attention, and abandoning the prosecution would be portrayed as surrender. The Commonwealth therefore announces another trial. But suppose the second jury hears substantially the same evidence, receives substantially the same legal directions and also hangs. What happens then?

The immediate legal answer is deceptively simple. A genuinely deadlocked jury ordinarily permits another trial. Double jeopardy does not operate as though a mistrial were an acquittal because the first jury has not finally determined the defendant's guilt or innocence. The state therefore gets another opportunity to obtain a verdict. But that formal answer conceals a much more difficult question. If the second jury also hangs, the legal justification for another prosecution may remain, while the moral and institutional justification begins to deteriorate.

There is no obvious numerical stopping rule. One hung jury can be dismissed as an unfortunate consequence of requiring unanimity. Twelve citizens could not agree, so another twelve will be asked. Two hung juries are more troublesome because the possibility of mere accident begins to recede. Three would be more troublesome still. If three independently selected juries hear essentially the same case and none can unanimously convict, what exactly would a fourth trial be intended to establish? At some point the prosecution ceases to look like an attempt to obtain a verdict and begins to look like a search for the particular collection of jurors who will finally produce the verdict the state wants.

This produces a peculiar ratchet effect because public pressure can push in exactly the opposite direction. After the first mistrial the cry will be that the victims deserve another trial. If the prosecution complies and the second jury hangs, abandoning the case may produce an even greater backlash. The state has now spent still more money, the families have endured another trial, the public has followed another round of evidence, and yet there is still no conclusion. A third prosecution can therefore be justified politically by the failure of the second, just as the second was justified by the failure of the first.

The difficulty is that this reasoning contains no stopping principle. If public dissatisfaction with a hung jury justifies another trial, then the third hung jury supplies an even stronger political reason for a fourth. The fourth supplies a reason for a fifth. Every failure increases the political investment in obtaining a definitive result, while every additional prosecution makes it harder for the state to admit that no definitive result may be obtainable. The process acquires the logic of escalation: we cannot stop now because we did not stop last time.

Yet the evidentiary implication points in the other direction. The criminal standard is proof beyond reasonable doubt, and unanimity requires the prosecution to persuade every juror. A hung jury does not establish reasonable doubt in the technical sense that an acquittal does, because some jurors may have been convinced of guilt. Nevertheless, repeated hung juries tell us something. If successive groups of ordinary citizens, properly instructed and exposed to the same evidence, repeatedly fail to reach the legally required degree of agreement, the possibility grows that the uncertainty lies not in some peculiar juror but in the case itself.

That distinction would be especially important in a case such as Clancy's because the central dispute is not simply whether the physical acts occurred. The terrible deaths are not in dispute in anything like the manner of a conventional whodunnit. The fundamental issue concerns criminal responsibility and mental state. The jury is being asked to make an extraordinarily difficult judgment about what was occurring in the defendant's mind and whether the legal requirements for criminal responsibility have been satisfied. Those questions may reasonably divide people even when they have heard exactly the same psychiatric and factual evidence.

Imagine, merely for illustration, that the first jury divided ten to two against criminal responsibility and the second divided nine to three in the same direction. A third prosecution would look quite different from a situation in which two juries had each divided eleven to one for conviction. Neither division would legally constitute a verdict, but the practical significance would be impossible to ignore. In the former situation the prosecution would effectively be saying that although substantial majorities of two juries were unwilling to convict, the state should continue selecting juries until it finds twelve people who will.

The asymmetry of the criminal process makes the problem sharper. The prosecution may generally try again after a genuine deadlock, but it cannot try again after an acquittal simply because it believes the jury got the answer wrong. If the next Clancy jury acquitted, that would ordinarily be the end of the prosecution. The state could not announce that public anger was too great, select another twelve citizens and ask them to reconsider the question. Finality would prevail.

Repeated hung juries occupy the uncomfortable territory between these positions. There has been no acquittal and therefore no conventional double-jeopardy bar, but there has also been no conviction. The danger is that the state can exploit that intermediate status to continue until eventually it receives the one result that stops the process. If acquittal ends the game, conviction ends the game, but deadlock allows the state to reshuffle the jury and play another hand, repeated prosecution creates a structural advantage for the prosecution that becomes more troubling with each repetition.

This does not mean that a second prosecution after a hung jury is improper. Retrials following genuine deadlocks are an established and necessary part of criminal justice. Otherwise, a single obstinate juror could permanently prevent prosecution of even the strongest murder case. The problem arises when an exceptional remedy for an inconclusive trial becomes a potentially indefinite series of attempts to secure conviction.

There are practical limits, of course. Witnesses deteriorate, memories fade, expert testimony becomes increasingly rehearsed, costs mount and prosecutors must decide whether another trial serves the public interest. The psychological burden upon the defendant is also considerable. A person facing murder charges does not simply return to some neutral position after a mistrial. The threat of imprisonment, preparation for trial, publicity and uncertainty begin again. The punishment of repeated prosecution can therefore become substantial even before any jury has convicted.

There is also a legitimacy cost for the state. Criminal justice depends upon the idea that juries are not decorative obstacles placed between prosecutors and convictions. The jury is the institution through which the community participates in determining whether the state has carried its burden. If the community repeatedly fails to provide the required unanimous answer, government cannot indefinitely respond by replacing the community and asking again.

The Clancy case could therefore become constitutionally unremarkable but politically explosive if the present trial ends in deadlock. A retrial would be readily understandable. If the second trial also ended in deadlock, however, the character of the debate would change. The question would no longer simply be whether Lindsay Clancy should be convicted. It would become whether the Commonwealth is entitled to continue prosecuting until it finds a jury capable of convicting her.

Suppose there were a third trial and a third hung jury. By then the argument for stopping would become formidable. Thirty-six jurors would have been exposed to the prosecution's case and no group of twelve would have been able to return the unanimous verdict necessary for conviction. A fourth prosecution might remain legally possible, depending upon the circumstances and any judicial challenges that arose, but legality would no longer answer the deeper objection. Liberal criminal justice is supposed to constrain the state precisely when the state most desperately wants a particular outcome.

The political pressure would nevertheless be ferocious because the underlying facts are almost unbearably tragic. Any prosecutor announcing that the case would not be tried again could expect to be accused of abandoning three dead children. That accusation would have enormous emotional force. Yet prosecutors are not elected or appointed merely to translate public grief into repeated trials. Their responsibility is to administer criminal law, which includes recognising the limits imposed by evidence, burdens of proof and the jury system itself.

There must therefore be a point at which the state accepts a hung jury not as an irritating interruption on the road to conviction but as information about the limits of the prosecution. The law deliberately demands more than a majority before it permits the state to impose the most serious criminal punishment. When that demanding standard repeatedly cannot be satisfied, the appropriate response cannot always be to keep changing the twelve people who are being asked the question.

Perhaps there can never be a mechanical rule that two hung juries are enough, or three, because criminal cases differ too radically for such arithmetic. A jury divided eleven to one because of an obviously irrational holdout presents a different problem from successive juries deeply divided over contested psychiatric evidence. Prosecutorial discretion therefore remains necessary. But discretion needs a principle, and that principle should be that the justification for another trial diminishes rather than increases as repeated independent juries fail to convict.

That is the paradox a second Clancy mistrial would expose. Politically, every hung jury could make another prosecution seem more necessary because the public demand for closure would intensify. Jurisprudentially, every hung jury could make another prosecution less defensible because another group of citizens had declined to provide the unanimity that criminal punishment requires. Public pressure and the logic of reasonable doubt would therefore move in opposite directions.

If the state ultimately continued through a third, fourth or fifth deadlocked jury, the original question of Lindsay Clancy's criminal responsibility would eventually be overshadowed by another question altogether. The issue would become whether the criminal process exists to discover whether the prosecution can prove its case beyond reasonable doubt, or whether it permits the government to keep asking the question until, eventually, it finds twelve citizens who give it the answer it wants.

That is where repeated retrials cease to be merely a procedural curiosity and become a problem of political philosophy. The presumption of innocence means little if the state may subject a defendant to an indefinite sequence of prosecutions whenever juries repeatedly refuse to convict. A hung jury may entitle the prosecution to another chance. It cannot follow that the prosecution is morally entitled to chances without end.

The hardest test of the rule of law comes precisely in cases where stopping is politically unbearable. Three dead children make the demand for a definitive answer entirely understandable. But tragedy cannot itself determine criminal responsibility, and public outrage cannot substitute for unanimity beyond reasonable doubt. If jury after jury hears the evidence and cannot reach that standard, there eventually comes a point when the state must accept something deeply unsatisfying but fundamental to a system of limited government: sometimes the criminal process does not produce the answer that the public desperately wants, and its inability to do so is itself an answer that government must learn to respect.

Reference: State v. Moriwake, 647 P.2d 705 (Haw. 1982).

The problem is not peculiar to American double-jeopardy law. Australian courts have encountered substantially the same difficulty through the doctrine of abuse of process and the power permanently to stay a prosecution. The comparison is useful because it shows that the problem is deeper than the wording of the Fifth Amendment. Any legal system permitting retrial after a hung jury eventually has to confront the question of whether repetition can transform an individually lawful prosecution into collectively oppressive state action.

A particularly revealing Australian example is Porter (a pseudonym) v The King [2024] VSCA 127. Two juries had been unable to agree, while another jury had been discharged following a prosecution error. When the accused faced yet another trial, the Victorian Court of Appeal ordered a permanent stay. It did not establish a mechanical rule that two hung juries automatically prohibit a third trial. Instead, it considered the cumulative circumstances and concluded that another prosecution would be so unfairly and unjustifiably oppressive as to constitute an abuse of process. The significance lies precisely in the cumulative reasoning: events that might not individually justify terminating a prosecution can acquire a different legal character when added together.

Australian prosecutorial practice can recognise the same principle before a court needs to intervene. Queensland prosecution guidelines, for example, require a report to the Directorate following a second hung jury and provide that a third trial will not be authorised except in special circumstances. Relevant considerations include why the previous trial failed, whether the difficulty is likely to recur, the seriousness of the offence and the cost of another prosecution both to the community and the accused. The first hung jury therefore does not merely reset the system to zero. It becomes part of the circumstances against which the legitimacy of the next exercise of prosecutorial power must be judged.

This brings the Australian approach remarkably close to the reasoning of the Hawaii Supreme Court in State v Moriwake, 647 P.2d 705 (Haw. 1982). Moriwake involved two manslaughter trials ending in hung juries, after which the trial court dismissed the indictment with prejudice. The Hawaii Supreme Court upheld the dismissal while refusing the extraordinary implication that the state must necessarily be permitted an infinite series of retrials. Australia reaches the problem through somewhat different doctrinal machinery, particularly permanent stays for abuse of process, but the jurisprudential intuition is the same.

That intuition might be called the ratchet principle. The mistake is to examine every exercise of state power in isolation: Trial One was lawful; Trial Two was lawful; therefore, Trial Three must be lawful on exactly the same terms. Repetition changes the circumstances upon which legality and legitimacy depend. A prosecution that is entirely proper the first time, may remain proper the second time yet become oppressive after repeated failures to obtain a verdict. The state cannot necessarily convert the proposition that it may try once more into a licence to try once more forever. At some point accumulated lawful acts can produce an unlawful or abusive whole.