What happens when a jury hangs up?







On Fridays, we talk about writing tips for legal fiction. Since the recent report of a federal jury’s inability to reach a verdict on five of six charges against former Senator and presidential candidate John Edwards, I  thought it made sense to look at the concept of a hung jury and the opportunities it holds for writers.

A “hung jury” is one that cannot reach a decision.  For our purposes, we will consider only the situation in which the applicable law requires a unanimous vote.

I have tried two cases where a jury hung up. Both of these were criminal cases, and in each one I represented the accused. In one case the vote was 11-1 for conviction, in the other the vote was 6-6.

On the face of it, you can see how different the dynamics were in the jury room in these two cases.  For a jury to hang up 11-1, one juror must have the gumption to stand by his guns and withstand the arguments of all the other members.  In a 6-6 case, the jurors are split down the middle and have formed rival teams.

Both scenarios are pure conflict with a person’s freedom hanging in the balance.

For the writer, each situation is fertile ground. In the 11-1 case, a writer can make the holdout the good guy, or the bad guy. Or the writer can make the argument for the majority and express the frustration the eleven feel when they are unable to prevail on the odd person out.

In the 6-6 case, the writer can flesh out what it was that caused the jury to divide into camps.  Was it the physical appearance of the accused? A hidden agenda among several jurors? An honest disagreement about the meaning of a piece of evidence?

Another issue is the effect of the jury’s inability to reach a decision.  In the Edwards case, the jury found him not guilty on one count, and it hung up on the others.  As to that one count, Edwards stands acquitted and cannot be retried.  As to the counts on which the jury didn’t reach agreement, the government could retry him.

The decision to retry or not retry a case in which there is a hung jury is another place where a writer can find some interesting twists and turns.

On the heels of the jury’s decision in the Edwards case, news outlets reported that an unknown source from high up in the prosecution ranks said that it was unlikely that the government would retry Edwards on the remaining five charges.

That sounded to me like the government had considered this option and already made up its mind of how it would handle a hung jury.  The writer can be a fly on the wall and show us those behind the scenes discussions.

There are reasons why the government would retry one case but not another. As a general rule, the prosecution swings for the fence when it tries a high-profile case.  It doesn’t hold anything back because it knows its first shot is its best shot at conviction.  If it can’t persuade the first jury, it probably won’t be able to persuade the second.

But some cases just deserve a verdict.  The political stakes may be too high to let the case fade away, or the DA may simply believe that the defendant’s conduct was so onerous that the accused needs to run the gauntlet again.

The opportunities for great legal fiction writing  are everywhere, but a hung jury is one of the best of them.


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