Third Circuit discusses procedures for declaring a mistrial based on a deadlocked jury

In United States v. Wecht, 08-2258 (3d Cir. Sept. 5, 2008), the Third Circuit identified the ideal procedures a district court should follow before declaring a mistrial based on a deadlocked jury by referring to the Court's recently adopted Model Jury Instructions, specifically Instruction 9.05 (Deadlocked Jury - Return for Deliberations) and Comment 9.06, which details the Committee's recommended procedure for declaring a mistrial based on a deadlocked jury. The procedure includes: (1) determining whether a supplemental charge is necessary, (2) questioning each juror, (3) excusing the jury and conducting a hearing with counsel and the defendant, and (4) calling the jury back to the courtroom and discharging the jury.

The district court in this case did not follow the ideal procedure because it never questioned the jurors regarding the deadlock. Nor did the court provide counsel with the opportunity to argue the merits of declaring a mistrial as required by Fed.R.Crim.P. 26.3. Although the Third Circuit found that the district court had both failed to follow the proper procedure for declaring a mistrial and had violated Fed.R.Crim.P. 26.3, neither violation warranted an automatic dismissal of the Indictment. Instead, the Court considered the substantive question of whether the district court improperly declared a mistrial. In evaluating this question, the Court held that the district court's violation of Rule 26.3 did lessen the degree of deference it would accord the district court's finding of manifest necessity for declaration of mistrial. Even under this lower standard, however, the Third Circuit found that manifest necessity existed to declare a mistrial where the jury had deliberated for 54.5 hours over a period of ten days and had sent two notes indicating that they were hopelessly deadlocked. Accordingly, the Third Circuit affirmed the district court's declaration of mistrial and held that the defendant could be tried again without violating the Double Jeopardy Clause.