Hung Jury=Mistrial

I tried my second case of the year recently before Judge Cohen in St. Louis county.  It was a hard fought battle against
Rufus Tate.  The Judge was kind enough to compliment our lawyering and professionalism at the end of the case to the
hung jury (Rufus is a good trial lawyer).  I represent a young woman who alleged she was fired from her job because she
was pregnant.  There was no resolution – we will have to try it again.  The judge determined that the hung jury could
not reach a decision and declared a mistrial.

After the jury was out for about 4 hours they sent a note to the judge saying they were Deadlocked, 8 to 4 for the
plaintiff (my client).  In Missouri state court a plaintiff needs 9 of 12 of the jurors to agree on a verdict.  There is
an instruction sometimes called the ‘hammer’ instruction that a judge can read to a jury when they are deadlocked
encouraging them to come to a resolution and that the law prefers final decisions in disputes in favor of a hung jury. 
This instruction is sometimes read to encourage a hung jury to continue deliberating so that they can compromise and
come to a final decision.

However, there is case law discouraging the use of a hammer instruction if the court knows how the jury is voting.  This
occurs more often in criminal cases – if the jury is 11 to 1 for guilty and the judge says go deliberate more, the court
is kind of asking for a 12-0 guilty verdict.  In our case, although, court did not ask. The jury’s note said they were 8
to 4, and a hammer instruction might encourage a plaintiff verdict.  The judge brought the jury out and asked each if
they thought further deliberations would help, and all 12 said no.  So, the judge declared a mistrial.  The jury really
worked hard and had a genuine impasse they could not resolve.  We hope to try the case again and get a win.  To be
continued.

Gary Burger

Founder | Injury Attorney
Gary Burger has dedicated his career to standing up against bullies. The founder and principal attorney of Burger Law | St. Louis Personal Injury Lawyer has helped hundreds of Missouri and Illinois individuals and families recover th …
Years of experience: 30 years
Location: St. Louis, MO

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