“The jury were what is called ‘hung’; they could not agree, and the matters in issue, therefore, remained exactly where they were.”
— Edwin Bryant, author of “What I saw in California,” 1848
“The Judge won’t accept a hung jury. We haven’t been here long.”
— Juror #8 in “12 Angry Men,” 1954
Unanimity is an elusive thing. Twelve strangers brought together to decide the fate of a defendant may understandably not all agree. Yet, through deliberation and compromise, most juries reach verdicts.
The exact origin of the term “hung jury” is not clear. The quote from Edwin Bryant, up above, is the first known written use of the phrase. It is widely believed that the saying derives from the meaning of the word hung as caught, stuck or delayed, such as when one gets “hung up” in traffic or in a meeting.
The United States Constitution does not guarantee a right to a unanimous jury verdict in state trials. The Sixth Amendment, added in 1791, states that, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” Some 177 years later, the United States Supreme Court was faced with a case in which 19 year-old Gary Duncan had been charged with simple battery after a fight along the roadside in Plaquemines Parish, Louisiana. The crime carried a potential prison sentence of up to two years. Duncan asked for a trial by jury, but the Louisiana Constitution did not allow it.
The Supreme Court ruled that the right to a jury trial applied to all crimes except those for “petty offenses” — crimes carrying a maximum jail sentence of less than six months. However, the court has applied the unanimity requirement only to federal crimes. Each state gets to decide whether they will require their criminal juries to reach unanimous verdicts. Article I, Section 5 of the Ohio Constitution provides that the jury verdict in all criminal trials must be unanimous. A 1912 amendment allows for non-unanimous verdicts in civil cases.
A hung jury is a mistrial and does not mean that the defendant cannot be tried again. A few years ago, a defendant was acquitted of murder charges in Cuyahoga County after two previous trials resulted in hung juries. The double jeopardy clause, found in the Fifth Amendment, prevents a person from being “twice put in jeopardy of life or limb” on the same offense. The prohibition against multiple trials dates back to Greek and Roman law. The phrase “life or limb” refers to the early American practice of punishing criminals by cutting off an ear or damaging a limb.
Double jeopardy also does not apply to circumstances where the defendant is granted a new trial on appeal or in circumstances in which a defendant is charged with several crimes out of a single episode of activity. The state and federal governments may also prosecute a defendant for the same crime, as was most famously demonstrated by the dual prosecutions of Oklahoma City bomber Timothy McVeigh, or more recently the case involving Derek Chauvin and arising out of the death of George Floyd. The clause applies only to criminal proceedings and does not prevent a civil law suit for damages related to a criminal act.
You can listen to the 1968 oral arguments before the Supreme Court in the Duncan case (and hundreds of others) for free from the Supreme Court multimedia website at www.oyez.org.
David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Court of Common Pleas, where he has served as magistrate, court administrator, and now judge, since 2003. He has written a weekly column on law and history for The Gazette since 2005.