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J. Patrick Quillian Attorney At Law

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When Does a Mistrial Occur in a Criminal Case?

One of the most closely watched trials in recent years was Bill Cosby’s 2017 trial for sexual assault. Observers waiting for either a not guilty or guilty verdict got neither when the jury could not agree on a verdict and the judge declared a mistrial. Which raises the question of what exactly a mistrial is, when it happens, and what happens next for a defendant in a criminal case where a mistrial has been declared.

What a Mistrial Is and When It Happens


Essentially, a mistrial is an order by the judge presiding over a criminal case that the trial can no longer continue, and the trial comes to an end. The most common reason for a mistrial is the one we saw in the Bill Cosby where there was a hung jury, which is a jury that cannot reach a unanimous decision for either guilt or innocence. Jury voting requirements differ from state to state (as well as in federal criminal trials), thus unanimity is not necessarily always required. Nevertheless, when the jury cannot meet the requisite standards for either a guilty or not guilty verdict, a mistrial will result.

Other reasons that can cause a mistrial is where the jury has either acted improperly - or another party (including the attorneys and third parties) has done something to affect the jury - and the defendant cannot receive a fair trial. Common jury-related reasons for a mistrial include:


  • A juror not following the judge’s rules

  • A juror disclosing a relationship with the defendant or other party

  • Someone tampering with the jury

  • A jury member dying or becoming too sick to continue

  • A juror talking to the media or reading outside information about the case (e.g. conducting his or her own legal research)


Prosecutorial misconduct can also result in a mistrial, such as tampering with evidence or saying something in court that the jury hears which cannot be sufficiently ignored. Defense misconduct can also potentially result in a mistrial.

What Happens After a Mistrial


Either the prosecution or defense can move for a mistrial, and the judge will decide whether to grant the mistrial. A mistrial is not the same as a not guilty verdict, as prosecutors will often have the ability to bring a new criminal trial against the defendant. Double jeopardy may apply in limited situations that prevent a second trial, such as where the prosecutor’s misconduct causes the mistrial, but, in general, prosecutors can bring a second trial after a mistrial occurs due to an issue such as a hung jury.

Just because the prosecutors can bring a second criminal trial does not necessarily mean they will. They may not have the budget and/or the will to start over again, and whatever caused the mistrial - e.g. their inability to convince the jury to return a guilty verdict - may dissuade them from doing so.

Talk to an experienced criminal defense attorney for further guidance on mistrials and all aspects of criminal defense.

Oklahoma City criminal defense attorney Patrick Quillian worked as an Oklahoma district attorney, and will work with you in mounting your best defense in your criminal matter. Contact the office of J. Patrick Quillian, Attorney at Law, today at 405-896-9768 to schedule a free consultation to see what his criminal defense team can do for you.

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