Mistrial — What this Means in a Criminal Trial

When a jury for a criminal trial cannot agree to a verdict, a mistrial is declared.  Mistrials can be advantageous for a criminal defendant because the State may decide not to retry the case and the charge will be dismissed. And even if there is a second trial, the defendant’s criminal defense lawyer now knows exactly what the prosecution’s case will be and can prepare a stronger defense.

The number of jurors who must agree in order to obtain a conviction, and avoid a mistrial, depends on the size of the jury. Felony criminal trials will have either a 12 person jury or a 6 person jury.  With a 12 person jury, the verdict does not have to be unanimous, but with a 6 person jury, all jurors must agree to get a conviction.

Mistrials with a 12 Person Jury

If you are accused of a crime that carries a sentence of mandatory hard labor – that is, the criminal statute requires that you spend time in jail if convicted, then you will have a 12 person jury.  For example, in Louisiana the crime of Armed Robbery has a prison sentence exposure of 10 years to 99 years. The criminal statute specifically states that you will be sentenced to hard labor, so the jury for an armed robbery charge will be 12 people.

With a 12 person jury, 10 must agree that the defendant is guilty for a conviction.  If 3 jurors believe you are not guilty and 9 find you guilty, the result is a mistrial. Judges vary in what is the appropriate time to deliberate before a mistrial is declared, but if the jury is adamant that it can’t reach a verdict, the state will have to try the defendant again.

Mistrials with a 6 Person Jury

For a Simple Robbery charge, the sentence exposure in Louisiana is 0 to 7 years, with or without hard labor. Since prison time is not mandatory, you will only be entitled to a 6 person jury. However, with a 6 person jury, all jurors must agree to the verdict.  If one juror finds you not guilty and the other 5 jurors find you guilty, then the judge will declare a mistrial.

Benefits of a Mistrial

I always try to explain to my clients is that while a mistrial is more favorable than a guilty verdict, the State can try you again. However, sometimes when a prosecutor does not obtain a guilty verdict in a trial, he or she may feel it’s best to dismiss the case.  The prosecutor knows that getting a conviction at the second trial could be tougher since the criminal defense attorney knows what the prosecution’s case is going to be and will be even more prepared.

Recently, I defended a client in Lafayette, Louisiana in a criminal trial with a 6 person jury. All 6 jurors could not reach a unanimous verdict. The judge explained to the jury that if they could not all agree to a conviction, a mistrial would be declared. He sent the jury back to deliberate for more time. The jury still could not agree and the judge was forced to declare a mistrial. My client was happy – while it was not a Not Guilty verdict, it was certainly a loss for the prosecution. The State may decide to retry the case, but now we know what their evidence is and exactly what their case is going to be. It’s always better to get a Not Guilty verdict, but sometimes a mistrial can eventually mean the same thing.