By Deandra Grant, J.D., M.S. (Pharmaceutical Science), ACS-CHAL Forensic Lawyer-Scientist
A mistrial is one of the most disorienting outcomes a defendant can experience. The trial is over but nothing is resolved. No verdict. No acquittal. No conviction. Just a declaration from the judge that the proceedings have ended without a final judgment, and an uncertain road ahead.
If you or someone you care about has just been through a mistrial in Texas, the immediate questions are understandable: What does this mean? Can they try me again? Does double jeopardy apply? What happens now?
This piece answers those questions directly.
What a Mistrial Is — and What It Isn’t
A mistrial is a court’s declaration that a trial has failed to reach its conclusion in a legally valid way. It is not an acquittal. It is not a conviction. It does not end the case. It means the proceedings have been terminated before a verdict and the case is effectively reset.
Mistrials happen for several distinct reasons, each of which has different legal implications for what follows.
Hung jury. The most common cause of a mistrial in Texas criminal cases is a jury that cannot reach a unanimous verdict. Texas requires unanimous jury verdicts in criminal cases. When jurors deliberate and cannot agree after reasonable effort, the judge may declare a mistrial. A hung jury does not mean the defendant was acquitted. It means twelve people could not agree that the prosecution had met its burden of proof beyond a reasonable doubt.
Juror misconduct. If jurors engage in prohibited conduct (ex. conducting independent research, communicating with outside parties about the case, or being exposed to information not admitted at trial) the integrity of the verdict is compromised. Depending on the severity, the judge may declare a mistrial rather than allow a tainted verdict to stand.
Prosecutorial misconduct. If the prosecution engages in conduct that prejudices the defendant’s right to a fair trial (ex. improper statements during closing argument, introducing inadmissible evidence, or withholding exculpatory material) the judge may grant a mistrial. This category has particular significance for the double jeopardy analysis, discussed below.
Procedural errors or unforeseen circumstances. Court error, the death or serious illness of a juror or key participant, or other extraordinary circumstances can make it impossible to continue the trial fairly.
Does Double Jeopardy Prevent a Retrial After a Mistrial?
This is the question most defendants ask first and the answer is more nuanced than most people expect.
The Fifth Amendment to the United States Constitution prohibits double jeopardy: being tried twice for the same offense after a prior acquittal or conviction. The Texas Constitution contains a parallel protection under Article I, Section 14.
The critical rule: A mistrial, by itself, does not bar retrial. Double jeopardy attaches in a jury trial when the jury is sworn in. But the constitutional protection against being tried twice applies to acquittals and convictions. It does not apply to mistrials. When a mistrial is declared, jeopardy has attached but has not terminated in the defendant’s favor, which means the slate can be reset.
There are important exceptions, however.
Hung jury mistrials. When a mistrial is declared because the jury is hung, retrial is almost always permissible. The failure to reach a verdict is not an acquittal, and courts have consistently held that the prosecution may try again.
Defendant-requested mistrials. When a defendant moves for a mistrial (for example, because of a prejudicial statement by the prosecutor) retrial is generally permitted. By requesting the mistrial, the defendant waives the double jeopardy bar in most circumstances.
Prosecutorial misconduct mistrials. This is the most significant exception. Under Oregon v. Kennedy (1982) and Texas case law, if a mistrial is declared because of prosecutorial misconduct, double jeopardy may bar retrial but only if the prosecutor intentionally goaded the defendant into requesting the mistrial. Negligent misconduct, or even bad judgment by the prosecutor, generally does not trigger this protection. Only deliberate misconduct designed to provoke a mistrial does.
Manifest necessity. When a mistrial is declared over the defendant’s objection (for reasons other than prosecutorial misconduct) courts apply the manifest necessity standard. If the judge had genuinely compelling reasons to declare the mistrial, retrial is permitted. If the mistrial was unnecessary or premature, double jeopardy may apply. Defendants who believe a mistrial was improvidently declared have the right to challenge that determination.
Case Results
What Happens After a Mistrial in Texas
Once a mistrial is declared, the case returns to the pretrial posture in most respects. The prosecution must decide whether to retry the case, seek a plea resolution, or dismiss the charges. There is no deadline by which the prosecution must act — the speedy trial clock considerations that apply generally in criminal cases continue to run.
Retrial. If the prosecution elects to retry the case, a new jury is empaneled, and the trial proceeds from the beginning. Evidence must be re-presented. Witnesses must testify again. Everything starts over, subject to any rulings the original trial court made that remain binding.
Plea negotiation. A mistrial, particularly one caused by a hung jury, changes the negotiating dynamic. The prosecution has now seen the defense, and the defense has seen the prosecution’s full case. In some cases, both sides are more motivated to resolve the matter without going through another full trial, which can open space for plea negotiations that might not have existed before the first trial.
Dismissal. In some cases, particularly where the prosecution’s case has been significantly weakened by what emerged at trial, or where prosecutorial misconduct was involved, the charges may be dismissed entirely. This is more likely when the hung jury vote was heavily in the defendant’s favor, or when the misconduct was egregious enough to affect how the prosecution evaluates the strength of its case.
The Defendant’s Rights During This Period
A mistrial does not change the defendant’s pretrial rights. Bond conditions remain in place. Any pretrial motions that were ruled upon may or may not carry over to the retrial. This depends on the nature of the ruling and whether it becomes the law of the case. Suppression rulings in particular may carry forward, depending on how the court handled them.
If you are concerned about conditions of release, the status of prior rulings, or the timeline for the prosecution’s next steps, those questions should be addressed with your attorney immediately following the mistrial. The period between a mistrial and a retrial is also the time to evaluate whether any issues from the first trial (ex. juror conduct, evidentiary rulings, prosecutorial behavior) provide grounds for a double jeopardy motion or other pretrial relief.
Speak With Deandra Grant Law
A mistrial is not an ending, but it is a pause that creates real opportunities. If your case has ended in a mistrial and you have questions about what comes next, contact Deandra Grant Law for a confidential consultation.
Call (214) 225-7117 or visit texasdwisite.com.
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