Understanding Hung Juries, Mistrials, and Retrials in Massachusetts
By Patrick L. Garrity, Boston Criminal Defense Attorney
A criminal jury trial does not always end with a verdict of guilty or not guilty.
Sometimes, after days or even weeks of testimony followed by lengthy deliberations, twelve jurors simply cannot unanimously agree. In Massachusetts, this is commonly referred to as a hung jury. If the court ultimately concludes that further deliberations are unlikely to produce a unanimous verdict, the judge may declare a mistrial.
For a criminal defendant, the distinction is important. A mistrial caused by a hung jury is not a conviction, but it generally is not an acquittal either. The prosecution will ordinarily have the option of trying the case again.
Boston criminal defense attorney Patrick L. Garrity has experienced this dynamic firsthand while defending serious felony cases in Massachusetts Superior Court, including cases in which juries deliberated for days without reaching a unanimous decision and cases that proceeded to subsequent retrials.
Those experiences underscore an important point: a hung jury can be a significant result for the defense, but it is often only one stage in a much longer criminal case.
Massachusetts Criminal Verdicts Must Be Unanimous
Massachusetts Rule of Criminal Procedure 27 provides that a jury's verdict in a criminal case must be unanimous. All twelve deliberating jurors must therefore agree before a defendant can be convicted or acquitted of a particular charge.
That unanimity requirement is fundamental.
The prosecution carries the burden of proving every essential element of a criminal charge beyond a reasonable doubt. The defense does not have to persuade twelve jurors that the defendant is innocent. If the Commonwealth fails to persuade all twelve jurors beyond a reasonable doubt, there can be no guilty verdict.
That principle is something I have emphasized directly to juries in serious criminal trials. During my opening statement in the 2025 rape trial of Commonwealth v. Terence Crosbie, I told the jury:
“We don't convict people on ‘maybes’ or ‘what-ifs.’”
The point was not rhetorical. It reflects the burden governing every Massachusetts criminal trial. Suspicion, possibility, and emotion are not substitutes for proof beyond a reasonable doubt.
What Is a Hung Jury?
A hung jury occurs when the jurors are unable to reach the unanimity required for a verdict.
That does not necessarily mean the jury is evenly divided. A jury could theoretically be divided 6-6, 10-2, or 11-1 and still be unable to return a verdict. Unless that information is appropriately disclosed, the lawyers and public may never know how the individual jurors voted.
What matters legally is simply that the jury cannot unanimously agree.
A disagreement can arise for any number of reasons. Jurors may view the credibility of a witness differently. They may disagree about the significance of forensic or medical evidence. One juror may believe an inconsistency is minor while another believes it creates reasonable doubt. In a circumstantial case, jurors may disagree about whether the inferences urged by the prosecution have actually been established beyond a reasonable doubt.
This is particularly important in serious criminal cases where credibility is central and the consequences of a conviction are enormous.
Does the Judge Immediately Declare a Mistrial?
Usually, no.
A note from a jury saying that it is having difficulty reaching agreement does not automatically end the trial.
The judge must assess the circumstances. Depending on how long the jury has been deliberating, the length and complexity of the trial, what the jury has communicated, and other circumstances, the court may direct the jurors to continue deliberating.
Massachusetts courts also recognize supplemental instructions that can be used when a jury reports that it is deadlocked. The objective is to encourage jurors to continue discussing the case while avoiding coercion of any juror into abandoning an honestly held view merely to produce a verdict. Massachusetts appellate decisions accordingly give trial judges discretion in determining when further deliberations remain appropriate and when continued efforts would be futile or potentially coercive.
Eventually, however, there may come a point when the court concludes that the jury has made reasonable efforts and simply cannot agree.
At that point, Massachusetts Rule of Criminal Procedure 27 permits the judge to declare a mistrial on the charges for which no verdict can be reached. If a case contains multiple charges and the jury has unanimously resolved some but not others, the court can, in appropriate circumstances, receive the completed verdicts and declare a mistrial only as to the unresolved charges.
What Happens After a Hung Jury and Mistrial?
The most common question I hear about a hung jury is some version of: Does that mean the case is over?
Usually, it does not.
A mistrial caused by a genuinely deadlocked jury generally permits the Commonwealth to prosecute the defendant again. Massachusetts courts have long treated a jury's inability to reach a verdict as a classic example of the “manifest necessity” that permits a mistrial without violating constitutional protections against double jeopardy. Assuming the evidence at the first trial was legally sufficient and there is no separate legal impediment to retrial, the prosecution ordinarily may try the case before another jury.
That means the case essentially returns to a pretrial posture.
The court will schedule further proceedings. The prosecution must decide whether to retry the case, resolve it in some other fashion, or discontinue the prosecution. The defense must simultaneously determine how the first trial changes the strategic landscape.
And it frequently does.
A Hung Jury Can Provide Valuable Information to the Defense
Trying a case teaches a defense lawyer things that cannot always be learned from discovery.
You see how witnesses perform under actual cross-examination. You learn which evidentiary issues become important in real time. You see how experts communicate complicated subjects to lay jurors. You hear the prosecution's complete theory instead of merely anticipating it from police reports and motions. You also learn where the evidence may be stronger or weaker than it appeared on paper.
After a mistrial, I believe one of the defense lawyer's most important jobs is to resist simply recreating the first trial.
The question should instead be: What did we learn?
Every examination, evidentiary ruling, exhibit, objection, expert opinion, and argument should be reconsidered. A retrial provides another opportunity to sharpen what worked, reconsider what did not, identify new investigative avenues, and anticipate how the Commonwealth may attempt to repair weaknesses exposed during the first trial.
The prosecution receives the same opportunity.
That is one reason a retrial should never be treated as merely a repeat performance.
Two Hung Juries in Commonwealth v. Caitlin Harding
The prosecution of former Massachusetts teacher Caitlin Harding provides an unusual example.
I have worked with Brad Bailey and the defense team representing Ms. Harding in a Middlesex Superior Court prosecution involving serious sexual-assault allegations.
Her first trial ended in June 2024 when the jury could not reach a unanimous verdict. When I spoke with the Boston Globe after the proceeding, I explained simply that the jury “couldn't reach a verdict.” The Commonwealth subsequently elected to try the case again.
The second trial occurred in January 2025.
Again, the case went to a jury.
Again, the jury could not unanimously agree.
This time, jurors deliberated for approximately 25 hours before the second trial also ended with a hung jury.
Two different juries therefore heard the prosecution and defense evidence in separate trials without returning a unanimous guilty verdict.
When prosecutors later elected to pursue the case yet again, I publicly expressed my disagreement with that decision, noting that “two prior juries could not agree” and emphasizing the significant burden that repeated prosecutions impose on a defendant who must continue defending against the same allegations.
The Harding proceedings illustrate an important reality about hung juries: a mistrial may end a particular trial, but it does not necessarily end the prosecution.
The Terence Crosbie Trial: Why a Mistrial Is Not an Acquittal
I encountered that reality again while serving as defense counsel with Daniel Reilly in the Suffolk Superior Court rape prosecution of Commonwealth v. Terence Crosbie.
The first Crosbie trial received substantial national and international media attention. Following the presentation of evidence and closing arguments, the jury deliberated for more than 22 hours over several days but could not unanimously agree on a verdict. The court ultimately declared a mistrial in June 2025.
That result meant there was no conviction at the first trial.
But it did not mean the charge disappeared.
The Commonwealth elected to retry the case several months later. The second jury ultimately reached a guilty verdict in October 2025.
For anyone trying to understand the legal significance of a hung jury, the two Crosbie trials demonstrate why terminology matters.
A mistrial is not the same as an acquittal.
An acquittal ordinarily terminates the prosecution on that charge and triggers constitutional double-jeopardy protection against another prosecution for the same offense. A mistrial resulting from a genuinely deadlocked jury generally does not. The defendant may once again face jury selection, witnesses, cross-examinations, evidentiary rulings, closing arguments, and another verdict.
That distinction can have enormous practical consequences for someone facing a serious felony charge.
Can the Commonwealth Keep Retrying a Defendant After Hung Juries?
There is no simple rule that says the Commonwealth automatically loses the ability to prosecute a case after a specified number of hung juries.
The legal analysis depends on the circumstances, including double-jeopardy principles, the sufficiency of the evidence, the basis on which prior proceedings ended, and other case-specific legal issues. Massachusetts appellate courts recognize that a retrial following a properly declared hung-jury mistrial will generally not be barred simply because the first jury could not agree.
But the fact that another prosecution is legally permissible does not answer the separate question of whether prosecutors should exercise their discretion to pursue one.
After repeated mistrials, both sides may have very different views about what the inability of multiple juries to agree says about the case. Prosecutors may believe another jury should have the opportunity to decide it. The defense may argue that repeated failures to obtain a unanimous conviction demonstrate persistent reasonable doubt and that continuing to prosecute imposes substantial human and financial costs without materially changing the evidence.
Those are not merely abstract issues. They arise in real Massachusetts criminal cases.
Is a Hung Jury a “Win” for the Defense?
I am careful about using that word.
If a client enters a courtroom facing a possible state-prison sentence and the jury ultimately does not convict, that is obviously significant. The government sought a conviction and did not obtain one.
But a lawyer should also be candid with the client about what remains.
A hung jury can mean:
- the criminal charge remains pending;
- bail or conditions of release may continue;
- the defendant may remain incarcerated if already held;
- another trial may be scheduled;
- additional attorney and expert expenses may be incurred;
- witnesses may have to testify again; and
- the emotional and reputational burden of the accusation may continue for months or longer.
For that reason, I generally view a hung jury as an important result that creates a new strategic posture, not necessarily the end of the case.
What happens next may be every bit as important as what happened during the first trial.
How Does a Criminal Defense Lawyer Prepare for a Retrial?
A serious retrial should begin with an exhaustive review of the first proceeding.
For the defense, that can mean reviewing transcripts line by line, comparing testimony against prior statements, reconsidering evidentiary rulings, identifying testimony that changed, analyzing weaknesses exposed during cross-examination, reevaluating expert strategy, and anticipating the prosecution's likely response.
There may also be new pretrial motions.
Evidence admitted during the first trial may be challenged on a different or more developed record. New impeachment material may emerge. Witnesses may make statements after the first proceeding. Expert opinions may evolve. The prosecution may alter its presentation. The defense may identify investigative avenues that became apparent only after hearing the entire Commonwealth case presented to a jury.
In other words, a retrial is simultaneously familiar and new.
Having already tried the case provides information. The challenge is using that information intelligently rather than assuming that the second jury will respond exactly as the first one did.
The Crosbie proceedings are a sobering illustration of that principle: one jury was unable to reach a verdict after lengthy deliberations; another jury later unanimously convicted.
What Should a Defendant Take Away From a Hung Jury?
For someone accused of a serious crime in Massachusetts, a hung jury can produce understandable relief and equally understandable uncertainty.
The immediate proceeding has ended without a conviction, but important questions remain:
Will the Commonwealth retry the case? Can the defense challenge a retrial? Will the prosecution make a different offer? What did the first trial reveal about the evidence? Should the defense strategy change? Are there additional witnesses, experts, records, or motions that should now be pursued?
Those questions require individualized analysis.
One lesson I have taken from handling serious Massachusetts criminal trials is that the conclusion of one trial does not always mean the conclusion of the defense lawyer's work. Sometimes it marks the beginning of an entirely new phase of the case.
Experience Defending Serious Massachusetts Criminal Trials
I am a Boston criminal defense attorney at Brad Bailey Law, P.C., where I represent individuals facing serious state and federal criminal charges. My practice includes Massachusetts Superior Court jury trials, federal criminal defense, sexual-assault and sex-crime allegations, violent offenses, firearms cases, white-collar matters, constitutional motion practice, and other complex criminal prosecutions.
I have served as counsel in numerous Massachusetts Superior Court and federal jury trials, including cases resulting in complete acquittals and cases in which juries were unable to reach unanimous verdicts.
Every criminal case is different. A hung jury, mistrial, or retrial presents legal and strategic issues that must be evaluated according to the particular charges, procedural history, evidence, and circumstances of the individual defendant.
Prior results do not guarantee a similar outcome.
About Patrick L. Garrity
Patrick L. Garrity is a Boston criminal defense attorney at Brad Bailey Law, P.C. who represents individuals in serious Massachusetts state and federal criminal cases. His practice includes Massachusetts Superior Court jury trials, federal criminal defense, sex-crime allegations, violent offenses, white collar and public-corruption matters, constitutional motion practice, sentencing advocacy, and other complex criminal prosecutions.