Also known as: withdraw a juror · withdrawal of a juror · withdrawn juror · mistrial · hung jury
Written by attorneys · grounded in primary & secondary sources — see below
A procedural device by which a court removes a juror from the panel. The device traditionally effects a mistrial when the jury cannot reach a verdict or when manifest necessity otherwise requires termination of the trial.
Wanda Williams stood trial on bribery charges. After two days of deliberation the jury reported it could not agree on any count. The court withdrew one juror and declared a mistrial on all counts, allowing the government to retry Williams before a new jury.
Willow West faced drug-trafficking charges. When the jury deadlocked, the judge announced an intent to declare a mistrial. Before acting, the court gave West and the government an opportunity to comment on the propriety of the order and to suggest alternatives, then withdrew a juror to end the proceeding.
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Whitney White and co-defendants were convicted of conspiracy to defraud the United States. During trial the defense learned several jurors had consumed alcohol at lunch. The court withdrew a juror, declared a mistrial, and discharged the panel without an evidentiary hearing on juror competence.
Wendy Wu was tried for robbery. After the jury began deliberating, the court discovered that improperly seized evidence had been admitted. The judge withdrew a juror, declared a mistrial, and discharged the jury so the government could retry Wu with a properly constituted panel.
Whitney Washington was convicted of murder. While her appeal was pending, a new constitutional rule governing jury selection took effect. The court withdrew a juror from the original panel, declared a mistrial, and discharged the jury, preventing retrial under the new rule.
Winter Wolfe was indicted for mailing obscene materials. Midway through trial the court discovered the indictment failed to allege an essential element. The judge withdrew a juror, declared a mistrial, and discharged the jury so the government could obtain a proper indictment and retry Wolfe.
In a jury trial, jeopardy attaches when the jury is empaneled and sworn. Once attached, the Double Jeopardy Clause protects the defendant from retrial unless the mistrial was based on manifest necessity or the defendant's consent.
No. Prosecutorial negligence, such as failure to disclose exculpatory evidence, does not constitute manifest necessity. A mistrial declared on that ground without the defendant's consent bars retrial under the Double Jeopardy Clause.
Before ordering a mistrial, the court must give each defendant and the government an opportunity to comment on the propriety of the order, to state whether the party consents or objects, and to suggest alternatives.
…356 U.S. 464, 474, 475 (Warren, C.J., dissenting). "Harassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict are examples when jeopardy attaches." Downum v. United States , 372 U.S. 734, 736. And finally, it prevents the…