statutory rape

Danny Masterson, former star of That 70’s Show, was convicted of rape in California for sexually abusing three women. He was alleged to have met the women through the Church of Scientology. He was previously tried, but there was a hung jury.

What Is Double Jeopardy?

I am often asked about double jeopardy and hung juries. How can someone be tried twice if there is a hung jury? Doesn’t double jeopardy attach, which would preclude a second trial? If the defendant moves for a mistrial due to the jury being hung, jeopardy does not attach because the prosecutors were willing to sit and wait for a verdict. After two or three days, if no one says anything, the judge declar

es the mistrial due to a hung jury, again, not against the prosecutors. That’s the simple answer. The more complicated legal answer is as follows.

Double Jeopardy Principles in Pennsylvania

The majority of the cases say that double jeopardy does not bar a retrial after a hung jury in Pennsylvania unless there is some allegation of prosecutorial misconduct. In Com. v. Hickson, 402 Pa. Super. 53 (1990), the court held that “as a general rule, re-prosecution is not barred by principles of double jeopardy after a jury has been discharged because of an inability to reach a verdict.” In Com. v. Johnson, 231 A.3d 807 (Pa. 2020), the court held that “retrial is only precluded where there is prosecutorial overreaching,” which means a hung jury alone is not enough to trigger double jeopardy. Similarly, the court in Com. v. Thompson, 1100 MDA 2021 (Pa.Super. August 22, 2022) stated that “retrial is not barred” after a hung jury, and in Com. v. Harris, 400 Pa. Super 12 (1990), the court reiterated that “as a general rule, a mistrial because of a jury’s inability to agree upon a verdict does not implicate principles of double jeopardy.”

But, in Com. v. Smith, 532 Pa. 177 (Pa. 1992), the court held that the double jeopardy clause bars retrial following intentional prosecutorial misconduct designed to secure a conviction by concealing exculpatory evidence. In Com. v. Johnson, 231 A.3d 807 (Pa. 2020), the court said the double jeopardy clause also prohibits retrial when the prosecutor intentionally practices bad behavior to prejudice the defendant to the point of a lack of a fair trial. In Com. v. Kearns, 2013 Pa. Super. 185, (2013), the court said, again, double jeopardy will preclude retrial if the prosecutor’s conduct was intended to provoke the defendant into moving for a mistrial.

Did Double Jeopardy Apply to the Masterson Case?

In Masterson, there was no allegation of prosecutorial misconduct in the first trial, so there are no double jeopardy issues. Stay tuned for the litany of appeals.

Brian J. Zeiger, Esquire, is an experienced and successful criminal defense and civil rights attorney. He is a seasoned trial lawyer with significant experience before juries and judges. Brian understands civil rights cases, including Taser, Wrongful Death, Excessive Force, Police Brutality, Police Misconduct, Malicious Prosecution, Monell Claims, Sexual Assault, Prisoner’s Rights, Time Credit, Medical Malpractice, and Medical Indifference.