Suppose that the jury unanimously agrees on guilt in "second-degree recklessly endangering safety" but is hung 50/50 on pushing to a higher "intentional homicide" charge. Can the jury then declare a conviction on only the lower charge, but still allow a future retrial to get the higher charge?

Historically, I am tempted to answer "No": Higher courts interpret convictions on lower charges as "implied acquittal" on higher charges (for which Double Jeopardy would apply to any retrial).

But, in theory, a jury might be able to say "Double Jeopardy will not apply because we could not decide on higher charges" or, equivalently, "There is no implied acquittal of the higher charges".

2 Answers 2


The question of double jeopardy is not for a jury to consider. It is a question of law that is decided by the judge.

In this case, Rittenhouse is charged, among other counts, with first-degree reckless homicide. If he is found guilty on a lesser charge, he will have been acquitted of first-degree reckless homicide, and he will not be able to be retried on that charge by the state of Wisconsin. (If the trial is invalidated to the extent that jeopardy never "attached," for example if it is found that the judge had been bribed to prevent conviction, then a new trial could be brought.)

Once jeopardy attaches, there can be no additional trials for the same crime, and any subsequent attempts at prosecution should be dismissed by the court long before a jury is selected. By contrast, if a court determines that a trial does not constitute double jeopardy and a jury is seated, the jury will not consider the possible existence of double jeopardy; the only way to challenge a trial judge's decision on that question would be through the appeals process.

If the trial jury in the original trial cannot decide unanimously to acquit on a particular charge then it is a hung jury,and indeed that may result in a mistrial on only those counts on which the jury has deadlocked. From Wikipedia, quoting the Federal Rules of Criminal Procedure:

If the jury cannot agree on a verdict on one or more counts, the court may declare a mistrial on those counts. A hung jury does not imply either the defendant's guilt or innocence. The government may retry any defendant on any count on which the jury could not agree.

States, however, may approach this slightly differently.

  • OK, you're saying that there can be no retrial "if he is found guilty on a lesser charge". That answers my question, but what if one juror strongly feels that he is guilty of the higher charge and does not want to settle like this? Can that juror cause a complete mistrial (i.e., effectively cause a hung jury on both lesser and higher charges) by "all-or-nothing holding out" for the higher charge?
    – bobuhito
    Commented Nov 15, 2021 at 16:54
  • @bobuhito Random holdout jurors are just part of the risk taken in a unanimous jury system. I think there are only very specific cases where the holdout can be coerced by anything other than the peer pressure of the other jurors. Some jurisdictions may have regulations on jury nullification, and it may be possible for a jury to report a holdout is expressly trying to invoke that and get the juror removed. "Refusal to deliberate" is often a valid cause to remove a juror mid-deliberations at the federal level. Even then it's a drastic action to take. Commented Nov 16, 2021 at 6:09
  • @bobuhito Quite recently, as an example, a juror on Manafort's trial said that there was a single holdout in the jury that prevented him from being convicted on every charge. And that was just the way it had to be. He was convicted on some, and a hung jury on the remaining. Commented Nov 16, 2021 at 6:10
  • @zibadawatimmy I believe Manafort can still be retried on all of the hung charges, so your example doesn't work. Manafort's case had "separable charges", but I'm asking about "charges for different degrees of malice". Is there any precedent for my example where someone was found guilty of the lesser charge, with a mistrial declared on the higher charge, and then later eventually retried for the higher charge? It seems philosophically that we should allow this, but phoog says we don't.
    – bobuhito
    Commented Nov 16, 2021 at 6:37
  • Are you saying that a trier of fact's declaration that the defendant is guilty of a lesser included offense also constitutes a declaration that they are not guilty of the greater charge? If any jury members believes the defendant is guilty of the greater charge, they should vote not guilty on the lesser charge? Commented Nov 18, 2021 at 6:00

In "Instructions to the Jury" (labelled "Nov 15 2021" and "Final"), the jury is explicitly told in Count 4, "If after full and complete consideration of the evidence, you conclude that further deliberation would not result in unanimous agreement on the charge of second degree intentional homicide, you should consider whether the defendant is guilty of first degree reckless homicide."

If there truly is deadlock of a higher charge with conviction on the lower charge, the state could therefore prosecute again (suppose that some new video surfaces in 2022 suggesting more guilt) on just the higher charge. The state would just need to prove that the jury was deadlocked on the higher charge (probably through the testimony of one juror).

So, in the end, the jury can declare a conviction on only the lower charge, but still allow a future retrial to get the higher charge.

  • 2
    The second paragraph doesn't necessarily follow from the first. Do you have an example of this happening in any state?
    – phoog
    Commented Nov 18, 2021 at 7:47
  • @phoog I agree that I am just speculating here with no case research to support it. If I instead use your answer, it just doesn't seem right that a hung jury on the higher charge gets equated with a unanimous acquittal on the higher charge.
    – bobuhito
    Commented Nov 18, 2021 at 15:28

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