Hung Out to Try: A Rule 29 Revision to Stop Hung Jury Retrials

Elijah N. Gelman | January 21, 2024

How many times can a defendant be retried? For those facing hung jury retrials, it’s as many times as the government pleases. Double jeopardy prohibitions do not apply when juries fail to reach a verdict.

There is, theoretically, a built-in procedural solution to stop the government from endlessly retrying defendants. Rule 29 of the Federal Rules of Criminal Procedure allows judges to acquit defendants when “the evidence is insufficient to sustain a conviction.” Considering that a hung jury indicates the jurors could not agree on the sufficiency of the evidence, defendants facing hung jury retrials are prime candidates for this Rule’s application. Yet Rule 29 has not been applied to prevent hung jury retrials. Instead, the Supreme Court has given a government-biased standard for deciding whether there is insufficient evidence to convict, stating that a judge must consider the evidence in the “light most favorable” to the government. This standard, which can force judges to nonsensically conduct the same analysis in perpetuity when juries repeatedly indicate that evidence is insufficient to convict, is not a functional standard.

This Note proposes a new post-hung jury Rule 29 standard. Rather than viewing the evidence in the light most favorable to the government, a judge should view the evidence in the light it was actually viewed by the hung jury, with no bias toward the government. Doing so allows a judge to consider a jury’s inability to reach a verdict as proof that the evidence is insufficient, preventing the government from unduly retrying cases where multiple juries have failed to convict. Moreover, a Rule 29 acquittal cannot be appealed, meaning this new standard can be applied today even without the approval of appellate courts.