When a court-martial panel deadlocks during findings and cannot reach the required voting threshold, the military judge must carefully manage the situation to avoid coercing a verdict. Unlike civilian juries requiring unanimity, military panels need only two-thirds vote for most convictions (three-fourths for sentences including confinement over 10 years). If the panel cannot reach this threshold after deliberation, they report the deadlock to the military judge.
The judge typically provides additional instructions encouraging continued deliberations without suggesting how members should vote. These “Allen instructions” must be carefully crafted to avoid appearing coercive. The judge may inquire whether additional time, evidence review, or legal instruction might assist deliberations. However, the judge cannot inquire about numerical splits or pressure the panel toward any particular verdict.
If the panel remains deadlocked after reasonable additional deliberation, the military judge declares a mistrial as to the affected charges. The convening authority then decides whether to retry those charges, dismiss them, or pursue alternative disposition. A hung panel doesn’t constitute an acquittal, so double jeopardy doesn’t bar retrial. The government typically has broad discretion to retry deadlocked charges, though repeated mistrials might support defense arguments against further prosecution.