Abortive Trial

An abortive trial is a trial which is terminated prior to its completion. When a trial is aborted not only does it not produce an outcome for the defendant or the prosecution, it may require a retrial, wasting the time, effort, and money for the court. An aborted trial can also delay justice for the victims, allowing the distress and trauma of a crime to linger.

Hung jury and an aborted trial

A common reason within the United States that a case may be aborted is if the jury cannot reach an agreed upon verdict, despite extended deliberations and potentially the opportunity of jurors to review their opinions.

Hung juries are common in criminal trials because (in most states) the verdict must be unanimous (with the exception of Oregon and Louisiana). A hung jury is not an implication of the innocence or guilt of the defendant, simply a statement that the jurist cannot reach a conclusive decision. The defendant may be retried on any count in which the jury cannot agree without triggering the legal issue of “double jeopardy.”

Options to reduce abortive trials

As mentioned above, the costs, hassle, and time associated with an aborted trial can be high. With this in mind, experts have suggested a variety of ways to lower the number of aborted trials. For instance, some experts suggest states could eliminate many hung juries by allowing a defendant to be convicted of a crime with a supermajority of the vote in favor of guilt, rather than requiring a unanimous vote. Experts suggest many hung juries are the result of one or two jurists who simply want to impede the course of justice. Critics of the proposed system argue, however, that defendants who are not guilty may be convicted at a higher rate.

Still others suggest the issue of hung juries is overstated, with occurrences as low as 5% in federal courts and thirty state courts (although rates fluctuate by jurisdiction and practice area). For example, hung juries are twice as likely in criminal cases, as opposed to civil cases, and much more frequent in state versus federal courts.

Experts have also tried to understand why hung juries seem to be on the rise. Some argue it is because the juror pool may be more diverse than it was fifty years ago, with diverse jurors finding it more difficult to agree on the innocence or guilt of the accused. This argument, however, has been debunked.

In fact, experts argue the jurors’ gender, age, education, race, and income is unrelated to the likelihood a jury will hang. Abortive trials are much more likely, however, when the case is complex, when the evidence is ambiguous, and when there is a high number of counts against the defendant.