By Texas Criminal Defense Lawyer Jeremy Rosenthal
A criminal jury must be unanimous to either acquit or convict someone. A jury who cannot agree is known as a “hung” jury which requires the case to be retried.
A notable exception to a jury being required to return a unanimous verdict is in death penalty cases. In those cases, the jury is allowed to return an 11-1 or 10-2 verdict which triggers an automatic life without parole sentence – so any one juror can spare someone’s life.
Judges Don’t Like Hung Juries
A “hung jury” can be very costly to the parties and it also means the court will have basically wasted it’s own time and the time of all the jurors and potential jurors who spent time on the case. So Judges bend-over-backwards to avoid a jury hanging.
Most judges will allow a jury to deliberate for roughly the same amount of time the trial itself took. So if a trial took two days – that’s about the amount of time a Judge will require a jury to deliberate if they can’t reach a verdict.
Often times a jury will write a note to the court saying they are deadlocked. In most instances the Judge will still require the jury to deliberate and the judge can issue what is known in Texas as an “Allen Charge” or a “Dynamite Charge.” The dynamite charge is a polite letter by the judge reminding everyone it’s important to stand by their beliefs and convictions – but also details some of the waste and damage a hung jury does too.
Juries frequently come back with unanimous verdicts after an Allen Charge which is why judges do them.
If after enough time has passed and the jury still keeps trying to communicate the deliberations are hopeless then the Judge will eventually declare a hung jury – technically called a mistrial.
Jury Unanimity Can Actually Be a Complex Topic
Believe it or not the requirement a jury be unanimous can be a legally tricky issue from time to time. It becomes problematic that the jury agree what exactly constituted the crime.
Texas has, within the last 20 years, enacted offenses making it a specific crime for “continuous” behavior. This could be sexual abuse of a child or domestic violence. In those cases the prosecution lists out instance after instance of abuse.
The unanimity requirement can be difficult because the jury doesn’t necessarily have to agree unanimously as to which specific crimes occurred – only that two or more did. This raises arguments that it run afoul of constitutional unanimity requirements.
*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization. He is recognized as a Texas Super Lawyer by Thomson Reuters.