“Hung jury” is a slang term for a jury that is hopelessly deadlocked. Usually the judge will inquire of the jurors, through the foreperson, whether the jury is in fact deadlocked, or whether the jury would benefit from additional time deliberating on the case.
While not all states require a unanimous – all jurors – to agree one way or the other, North Carolina does require all 12 jurors to unanimously vote whether to convict the Defendant or acquit him or her of the charges.
Usually the judge will ask the jury to return to the jury room to deliberate further on the case, especially if the jury has not been in deliberations long.
During the deliberations, the jury may ask questions, by writing those questions on a slip of paper that is then taken to the judge to review. The jury need not all agree on what question to ask before asking the question. A single juror may have a question that may be submitted to the judge for an answer, but the judge will always direct his or her answer to the entire jury.
While the judge usually has ultimate authority – except when his actions or responses would be improper under the Rules of Evidence or constitutional or statutory law – about responding to the jury’s questions, the judge will almost always consult with the prosecutor and the defense lawyer about the appropriate response.
Sometimes, especially if the answer is clear or not open for contention, the parties agree on how to respond to the jury’s questions. Other times, the parties may disagree on how to respond and may submit possible responses. The judge will select one of the responses, or formulate a response. A party may object to the response being given to the jury, and that objection may become an issue on appeal.
In some cases, the judge will simply re-read parts of his jury instructions and ask the jury to consider those instructions, with nothing more added.
If the jury says that it is deadlocked, a party can ask, and the judge can given an Allen Instruction, which simply informs the jury to redouble its efforts (without giving up individual commitments to conscience) because it is unlikely that any future jury would be in any better position to decide the case. While not all states permit an Allen charge, North Carolina does. The problem with an Allen charge is that it can appear to interfere with the sacrosanct role of the jury, which is to decide the case without pressure or influence.
If the judge is ultimately convinced that the jury is deadlocked, he will inform the prosecutor and the defense lawyer that he plans to declare a mistrial. Either party may object. The judge usually overrules those objections.
The jury is brought out. The judge inquires once again whether the jury is deadlocked. If the foreperson says “yes,” the judge then asks the foreperson to leave the jury box, thereby excusing him from the jury. Now that there are too few members of the jury in the jury box, the judge declares a mistrial.
A mistrial following a hung jury does not implicate the Double Jeopardy clause. Therefore, under both our state and federal constitutions, the prosecutor can retry the Defendant. The prosecutor can also decline to re-prosecute and can dismiss the charges. Or the case can be resolved by a plea bargain.