What Is a Mistrial — and What Happens Next in Virginia?

Attorney Advertising: Rouleau Law, PLLC | Managing Attorney: Daniel Rouleau, Esq. | This article is not legal advice and does not reflect the professional opinions of this attorney or firm. Always seek licensed legal counsel for any criminal matters you may be facing.

If you’ve ever watched a courtroom drama, you’ve probably heard the word “mistrial” thrown around at a dramatic moment. But what does it actually mean in Virginia, and why should it matter to you as a defendant?

The Short Answer: A mistrial is a trial that ends without a final verdict. The judge essentially hits the reset button — the case isn’t over, but the current proceedings are thrown out. And you have had a trial, so statutory and constitutional speedy trial protections are not violated.

What Causes a Mistrial in Virginia?

Virginia courts recognize mistrials in two broad categories.

The first is manifest necessity — situations where something goes so wrong that the trial simply cannot continue fairly. Common examples include a hung jury (jurors who cannot unanimously agree on a verdict), juror misconduct such as outside research or contact with a party, the death or serious illness of a juror or key participant, or the introduction of highly prejudicial evidence that cannot be “unrung” by a curative instruction.

The second category involves defendant-requested mistrials, typically based on prosecutorial misconduct or other constitutional violations that deprive the defendant of a fair trial.

The Double Jeopardy Question

Here’s where it gets legally significant. Under the Fifth Amendment to the U.S. Constitution — and mirrored in Article I, Section 8 of the Virginia Constitution — no person shall be tried twice for the same offense. So does a mistrial bar a retrial?

Generally, no. The U.S. Supreme Court established in United States v. Perez, 22 U.S. 579 (1824), that when a mistrial is declared out of manifest necessity, retrial is permitted. Virginia courts follow this principle consistently. However, if the mistrial was caused by prosecutorial overreach or bad faith — particularly where the misconduct was intended to provoke a mistrial — double jeopardy protections can bar a retrial.

What Happens After a Mistrial?

The Commonwealth (in criminal cases) or the opposing party (in civil cases) must decide whether to retry the matter. In criminal cases, the prosecutor evaluates the evidence, the reason for the mistrial, and the public interest. A new trial begins from scratch — new jury selection, new opening statements, new everything.

Why This Matters If You’re Facing Charges

A mistrial is not an acquittal. It does not mean you are free. But depending on the circumstances — particularly the reason for the mistrial and how the evidence played out — it may give your attorney meaningful leverage in plea negotiations. The Commonwealth has now seen its case tested, jurors have revealed how they responded to the evidence, and weaknesses that emerged at trial don’t disappear before a second one.

If you or someone you know is facing criminal charges in Virginia, contact Rouleau Law, PLLC at (434) 933-0022 to discuss your case.

Attorney Advertising. Rouleau Law, PLLC | Managing Attorney: Daniel Rouleau, Esq. This article is provided for general informational purposes only, is not legal advice, and does not reflect the professional opinions of this attorney or firm. No attorney-client relationship is formed by reading this material. Always seek qualified professional legal counsel for any criminal matters you may be facing.