We have a saying, those of us in this field, that “it only takes one”. It’s said with a slight wink and an imperceptible smile, the legal defense equivalent of “anything’s possible”. Said in reference to cases that present near insurmountable challenges to the defense, it implies that all you need is one juror and you have a hung jury. And if that occurs, anything can happen: the state may not re-prosecute, they may offer a more palatable plea bargain, or at the very least, you’ll have a free preview of their evidence. “It only takes one” is the outcome you’ll gladly accept when all hope of an outright acquittal is lost.
Appellants’ argument-and an appealing one it is-runs that had they been convicted, and had their convictions been reversed on appeal for insufficiency of supporting evidence, they could not have been again put to trial. This is correct. Burks v. United States, 437 U.S. 1 (1978). How then, they assert, can it be that where, as here, the evidence was so entirely insufficient as to produce a hung jury rather than a conviction, a retrial is yet permissible? When the prosecution’s case is on, and the evidence is insufficient, why should a defendant be worse off if the jury hangs than if it improperly convicts? Stated as an abstract proposition, the argument by analogy seems unanswerable.
But answer it they do, in a variety of ways. The most specious being that a hung-jury is “manifest necessity” that permits retrial and does not violate the Double Jeopardy Clause. That a hung jury is not a determination of the insufficiency of the evidence, because jurors may decline to convict for a variety of reasons despite overwhelming evidence.See, e.g., Richardson v. US.
That is a troublesome proposition, which becomes clearer if you look at it another way. The State, with all its might, had the simple task of convincing 6 – just 6 – people of the guilt of an individual beyond a reasonable doubt (yes, whatever that means). How else can their failure to do so be interpreted other than a lack of evidence?
This, unfortunately, is a lost battle. When Supreme Court decisions addressing this issue routinely quote Justice Story (US v. Perez), you know that this is a horse long-dead, never to reanimate.
But what’s to stop legislatures from codifying this principle as law? What if a legislature were to enact a statute that provides that all hung juries shall automatically be treated as acquittals? Clearly legislatures have considered this in one aspect: capital cases. A number of States provide that if a jury hangs in the penalty phase of a capital trial, the judge shall impose a sentence of life without the possibility of release.
Why, then, would legislatures be unable to mandate that if the prosecution cannot convince 6 people beyond a reasonable doubt of the guilt of the accused, then an acquittal must enter and the state is barred from retrying the person?
Would it necessarily run afoul of the “manifest necessity” jurisprudence? That seems, to me, to be an exception to the double jeopardy prohibition. The Constitution permits, but doesn’t require, that retrials occur after a hung jury. Could any court then say that such a statute runs afoul of the DJC?
Or have I gotten hold of the wrong end of the stick all around?
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