When I tell people that a jury in one of my recent trials couldn’t reach a unanimous verdict, I usually get the same reaction:
“Wait—what does that mean? What happens next?”
It’s a fair question. Most people haven’t been through a criminal trial, and the idea of a “hung jury” isn’t something you hear about often—at least not in detail. But it’s important to understand, especially if you or someone you know is facing criminal charges.
Here’s what you need to know.
What Is a Hung Jury?
In Arizona—and in most U.S. jurisdictions—a criminal trial requires a unanimous verdict. That means every juror must agree on whether the defendant is guilty or not guilty. If they can’t agree, the jury is considered “hung,” and the judge declares a mistrial.
In my most recent case, the jury was split 8 to 4 in favor of acquittal—meaning eight jurors believed the state hadn’t proven its case beyond a reasonable doubt. But since the other four wanted to convict, the jury was unable to reach a verdict.
Does That Mean the Case Is Over?
Unfortunately, no. A mistrial due to a hung jury doesn’t trigger double jeopardy protections. The state has the option to retry the case, which means going through the entire trial process again.
In Arizona the retrial must occur within 60 days, unless the defendant is willing to waive time. We’re not rushing back into court, but we’ll be watching closely to see whether the state decides to proceed.
Why Can the State Try Again? Shouldn’t That Be It?
That’s the most common reaction I hear.
If a majority of the jury didn’t believe the state met its burden, why should they get a second chance?
Personally, I agree—it shouldn’t work that way. If we truly respected the presumption of innocence and the state’s obligation to prove guilt beyond a reasonable doubt, a hung jury—especially one leaning heavily toward acquittal—should end the case.
And in some situations, that’s how it works. For example, in death penalty cases in Arizona, the sentencing phase also requires unanimity. If the jury can’t unanimously agree on the death penalty, the sentence defaults to life in prison. The state doesn’t get another shot at convincing a new jury.
That same principle could apply more broadly. It would save time, money, and protect the integrity of the presumption of innocence. But that’s not how our system is currently set up.
Why Retrials Are Riskier
There’s another layer here: retrials are statistically more likely to result in conviction.
In the first trial, I had some strategic advantages—like reserving my opening statement until the state had presented its case. That move gave me flexibility and let me respond more directly to what the jury had just seen.
But now? The prosecution knows exactly what my strategy is. They’ve seen my arguments, my exhibits, my narrative. That element of surprise is gone.
In addition, the case gets tighter the second time around. Everyone’s more familiar with the issues. Also, although the jury is kept in the dark about the fact that the case has already been tried previously, there are aspects of the retrial that do tend to suggest to the new jury that something “odd” has happened in the case. Usually this is in the context of confronting witnesses with something they said in the previous trial, but without calling it a previous trial. Juries tend to view repeat trials differently—sometimes seeing them as a sign that the defendant “got away with something” the first time.
It’s frustrating. But it’s reality.
Why Jury Unanimity Cuts Both Ways
I do support the requirement of unanimous verdicts—at least when it comes to guilty verdicts. But I have mixed feelings about applying the same standard to not guilty outcomes. If a jury can’t unanimously convict someone, why should that person have to go through it all over again?
That’s not just theory. It affects real people.
My client—who walked out of court innocent, still presumed so under the law—might still have to endure another trial, another round of stress, expense, and uncertainty.
Why Jury Trials Are So Unpredictable
Jury trials are a powerful check on government overreach, but they’re also wildly unpredictable. Jurors are often unfamiliar with key legal standards—especially proof beyond a reasonable doubt.
Here in Arizona, we use the Portillo instruction to define that standard, but it’s not especially clear. It says things like:
“If you’re firmly convinced of the defendant’s guilt, you must find them guilty. But if there is a fair possibility that the defendant is not guilty, you must find them not guilty.”
That language confuses jurors. It’s filled with double negatives, and attorneys from both sides often emphasize different parts of the same instruction—causing even more confusion.
And Jury Selection Is Getting Harder
Adding to the challenge is the fact that Arizona has eliminated peremptory challenges. That means we can no longer strike jurors without giving a specific reason.
We still have “for cause” challenges—but those only work if the juror admits to bias or disqualification. And let’s be honest: jurors who are smart enough to hide their bias during voir dire usually say just enough to stay on the panel.
In my recent trial, I ended up with jurors I never would’ve kept under the old rules. But I had no legal basis to strike them.
Final Thoughts: Hung Jury = Second-Best Outcome
This was my first hung jury. In all my prior trials, we reached a verdict. And while this isn’t the result I wanted, it’s still better than a conviction.
My client walked out the front door. He went home. He sleeps in his own bed.
We may have to do it again. I’ll be ready if we do. But I won’t pretend it isn’t exhausting. Two weeks in trial is a marathon—and restarting that race is tough.
Still, if the goal is to protect people’s rights and hold the state to its burden, I’ll keep running it.
Facing Criminal Charges in Arizona?
If you or someone you care about is navigating the uncertainty of a criminal case—or worried about how a hung jury or mistrial could affect the outcome—don’t go through it alone. At The Law Office of Joel Chorny, I take the time to explain the process, evaluate the strategy, and fight for your rights at every stage.
📞 Call today to schedule a strategy session and get clarity on your next steps.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Every case is different, and laws vary by jurisdiction. If you’re facing charges in Arizona, speak directly with an experienced criminal defense attorney to understand your rights and options.
