Is there a limit to the number of trials on a criminal charge permitted due to hung juries? In a jury trial for a criminal charge, SCOTUS recently ruled that a guilty verdict must be unanimous. In (almost) every state a verdict to acquit a criminal defendant must also be unanimous. If a jury cannot reach a unanimous verdict (a.k.a. a hung jury) then the judge must declare a mistrial and the prosecutor can demand a new trial of the same defendant on the same charge. Are there any legal constraints on the number of times that a defendant can be retried following mistrials due to hung juries? Or is the only practical constraint the willingness of the prosecutor to expend government resources (and perhaps political capital) pursuing a conviction?
Are there any legal constraints on the number of times that a defendant can be retried following mistrials due to hung juries? No. A fairly recent case in Louisiana, for example, involved someone who had been tried perhaps half a dozen times resulting in a mix of hung juries and reversals of convictions on appeal. Or is the only practical constraint the willingness of the prosecutor to expend government resources (and perhaps political capital) pursuing a conviction? Yes. This is the only practical limitation.
How many indictments does it take for Donald Trump to be imprisoned? An unlimited amount. Imprisonment is usually authorized as a result of a conviction rather than from an indictment. Pretrial detention following an indictment but prior to a conviction is permitted, but discretionary in the judgment of the judge. Also, there is a right to post a judicially determined reasonable bond to obtain release from pretrial detention after one is indicted and before one is convicted in the vast majority of cases (including the ones that President Trump is facing). Can a person who is indicted, before running for president, become president? Yes. Indeed, the majority view of legal scholars (it is has never been tested in a real case) is that someone who is convicted and serving prison sentence can still become President if that is who the voters choose. What's the purpose of indicting Mr. Trump if indictments are only an accusation? An indictment is a pre-requisite to trying someone for a felony in federal court. To convict someone of a crime one needs to first indict them, then have a jury trial, and then have a jury unanimously vote to convict a person, before they can be convicted of a crime and sentenced for it. Even after conviction, there is a statutory (but not a constitutional) right to a direct appeal of that conviction to an appellate court. Also, an indictment is more than a mere accusation. An indictment in a determination of a grand jury that probable cause exists to believe that the person indicted committed the crime charged. In the federal court system grand juries are composed of 16 to 23 members and 12 members of the grand jury must concur in a decision to indict a defendant on a charge for there to be an indictment on that charge. This prevents people from enduring criminal prosecutions on charges that a majority of a grand jury finds are so baseless that there is not sufficient evidence to establish probable cause that the defendant committed that crime. The grand jury must base its decision to indict or not on actual evidence in support of the charges in the form of sworn witness testimony and exhibits, not just the allegations of the prosecutor. As a practical matter, the standards of professionalism in federal criminal prosecutions is so high that almost all charges sought by federal prosecutors from grand juries result in indictments on those charges (federal grand juries refuse to indict approximately one in 16,000 times). But, in state courts that use grand juries, which can't pick and choose only the best cases to prosecute, grand juries routinely refuse to indict defendants on a substantial share of charges brought to them by prosecutors (on the order of one in 20). One source notes: Statistical figures showing a higher prevalence of grand jury reluctance to follow the government in ages past are almost nonexistent. However, a table of felony arrests in New York County between 1900 and 1907 found on page 111 of the 1926 book The Prisoner at the Bar by Arthur Train provides some rare illumination. In those seven years, some 5,214 out of 57,241 people were arrested by the police on felony charges whom New York state grand jurors decided not to indict. Grand juries are especially likely to decline to indict defendants in cases involving celebrities, politicians, law enforcement officers, and other high profile cases with political implications. See also Kaeleigh Wiliams, &quot;Grand Juries Should Not Hear Police Misconduct Cases: Grand Juries will Indict Anything, but a Police Officer&quot; SLU Law Journal Online 79 (2021).
Yes, there are cases where refusing to respond to the question would be legal. The juror could plead the fifth – so long as he hasn't spilled the beans about what he is trying to protect – which provides for the protection from compelled self-incrimination (any incriminating statement that could be used against you in a criminal charge – civil liability doesn't count here). Anything that is said in voir dire is on the record and under oath. You are effectively witnessing against yourself. As stated on NOLO: Witnesses can assert the privilege against self-incrimination in civil proceedings as well as criminal ones, despite the seemingly limiting language of the Fifth Amendment. They can assert it in state or federal court, in a wide variety of proceedings (including trials, depositions, administrative law proceedings, and investigatory proceedings like grand jury hearings). . . . If, by answering, the witness could provide evidence that might aid the government in prosecuting him, then he has the right to refuse. There has to be evidence, though, that testimony would subject you to criminal charges. &quot;What is your hair color?&quot; obviously cannot subject you to criminal charges. &quot;Have you ever driven while intoxicated?&quot; Would only be incriminating while the Statute of Limitations has not passed. After that point, you have not 5th amendment protections for having driven under the influence because it will no longer subject you to criminal charges. Additionally, there are cases in which you could refuse to answer but the court could still compel you to answer. For instance, sometimes questions in voir dire get very personal. If jurors believe a question is too personal, they can try to refuse to answer on those grounds, let the judge know, and the judge would make the decision. If the judge decides they must answer, and they continued to refuse, the judge could hold them in contempt. On a slightly more practical note, if you are objecting to questions, it will impact whether the attorneys on either side will allow you to stay on as a juror. After an objection to a specific question, the attorney may just decide to nix you.
Unless you are an ambassador or one of the US states, SCOTUS doesn't have original jurisdiction over your lawsuit, so they can't hear it either. If you've named all the judges of all the courts that do have jurisdiction, then one of them will handle it anyway, under the doctrine of necessity noted before. For cases that do fall within the Supreme Court's original jurisdiction, a jury trial is theoretically possible, but it appears it has not occurred since the 1790s, and only one has surviving records: Georgia v. Brailsford in 1794. See &quot;Special Juries in the Supreme Court&quot; by Lochlan F. Shelfer, Yale Law Journal 123:1, 2013-2014. Otherwise, non-jury original jurisdiction cases are usually delegated to a special master, a sort of &quot;contract judge&quot; who hears all the evidence and recommends a judgment that the full court typically rubber-stamps.
The Fifth Amendment, in pertinent part, reads: "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb;" which suggests that Crime B is still fair game under double jeopardy. However, if B is a lesser included offense under Blockburger, i.e. A is Aggravated Robbery and B is Robbery, then a prosecution could be barred by Double Jeopardy. Barring that, and jurisdiction specific law, the State isn't barred by the Double Jeopardy clause of the 5th (and 14th) amendment. That does not foreclose Person C from finding an ethical, equitable, statutory remedy or controlling case enforcing a plea bargain. As far as I can tell, commutation is the equivalent of a conviction while a pardon is equivalent to an acquittal. I also imagine if the prosecution isn't barred and tried C for B, the Executive may just pardon/commute C again. Edit to add: Under Santobello, it would appear C may have an additional remedy enforcing a plea bargain. Santobello didn't involve a case dismissed in a plea bargain, nor commutation or pardon. A court might find that commutation or pardon are essentially a breach of the agreement.
If the prosecutor (P) knows or strongly believes based on this new evidence that A is innocent, ethically P should start proceeding to have A's conviction reversed or reviewed. But in far too many cases P does nothing of the sort. If P simply files a charge against B and proceeds to try B for the crime, P leaves it open to B's Lawyer to ask &quot;Didn't you already convict A for this crime? what about that?&quot; as part of a defense, which might well embarrass P and lose the case. So P may well choose to file charges against B claiming that A &amp; B acted together as accomplices, even if this requires misstating the evidence, or suppressing part of it. Or, P may simply ignore the new evidence, leaving A in prison and B free. This is unjust, but requires no effort on the part of P, and may seem less likely to raise embarrassing questions about why P got the case against A wrong. P can always claim that s/he did not believe the new evidence. That might even be true, there is such a tendency to believe what we wish to believe. The relative frequency of these responses on the part of those in the position of P here is really not possible to asses. The last two responses involve P suppressing or at least burying relevant evidence, and unless it is brought to the attention of others who publicize it enough that action is taken, it will not be generally known and cannot be tabulated in any statistics. P's office will certainly not respond to any survey which asks &quot;How many times this year did you suppress the true facts to leave in place an unjust conviction you had previously obtained?&quot;
In the US, a person is generally protected from being tried for the same offense twice, but they are not necessarily absolutely &quot;protected&quot;. If a jury convicts a person but the judge enters a directed verdict of not guilty, the prosecution can appeal that action (Wilson v. US, 420 U.S. 332). The reason is that the acquittal could be disposed of on appeal without subjecting the person to a second trial. In contrast, in Fong Foo v. US, 369 U.S. 141 the trial judge ordered the jury to enter a verdict of acquittal. The appeals court rejected the judges basis for ordering an acquittal: but Fong Foo was &quot;protected&quot; because there could not be a second trial (double jeopardy), and it does not follow that the jury would have convicted but for the judge's order. The question reduces to the limited circumstances under which the prosecution can appeal a verdict. For instance, the prosecution can appeal a tre-trial motion to dismiss, and since there was no trial, there is no second jeopardy. Within a single jurisdiction, the only circumstance allowing a second trial involves bribery of a judge (Aleman v. Judges of the Circuit Court of Cook County, 138 F.3d 302), where the basis for allowing a second trial is that defendant was not in jeopardy with the first trial. New evidence does not override a defendant's protection against a second trial, whether it is new DNA evidence or a confession. It does not matter if this evidence arises seconds after the final verdict is entered, or months after. Or even before, but the prosecution was unaware.
This is known as the rule of lenity. A common formulation of the rule of lenity is as follows: If a federal criminal statute is grievously ambiguous, then the statute should be interpreted in the criminal defendant's favor. Importantly, the rule of lenity does not apply when a law merely contains some ambiguity or is difficult to decipher. As this Court has often said, the rule of lenity applies only when “ ‘after seizing everything from which aid can be derived,’ ” the statute is still grievously ambiguous. The rule “comes into operation at the end of the process of construing what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers.” Kavanaugh J., concurring, in Wooden v. United States, 595 U.S. ___ (2022), citing Ocasio v. United States, 578 U.S. 282, 295, n. 8 (2016), internal citations removed.