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What Is a Retrial? When Can You Get One?

By Brett Snider, Esq. | Last updated on

What is a retrial, and who is entitled to one?

Retrials are in the news this week. Convicted Arizona murderer Jodi Arias will be retried, but only to determine her punishment for killing her boyfriend in 2008; jury selection is set to begin September 8, The Associated Press reports.

And in another high-profile case, Michael Dunn, the Florida man who allegedly shot and killed unarmed teenager Jordan Davis over loud music, will be retried for murder beginning May 5, the AP reports.

So how do retrials work in our criminal justice system?

What Is a Retrial?

A retrial is quite literally a second (or third) trial on an issue that has already been tried. In Jodi Arias' case, jurors were unable to reach a verdict on how she should be punished, so an entirely new jury will need to hear the facts of the case in order to make the same determination.

In most cases, a retrial is ordered because a judge has declared a mistrial, or a reason why the current trial must be considered invalid. A mistrial can occur because of something as innocent as a hung jury or something more malicious like juror misconduct.

Sometimes a case will be appealed and then overturned by an appellate court, which will then order a retrial in order to have the facts heard in accordance with its ruling.

In every other way, a retrial is just like a normal trial. And assuming there is no reason to challenge the trial court's findings, the conclusion of a retrial will be the final word on the case.

Who Gets a Retrial?

In order for there to be a retrial, there must be a legitimate reason for the original trial to be declared invalid. Like with Jodi Arias, a hung jury is a very common reason to declare a mistrial, but the retrial will only need to cover issues of fact where the jury was not unanimous.

Since the Arias jury already unanimously voted to convict her of murder, the retrial will only cover the issue of punishment -- not guilt or innocence. That's different from the case of Michael Dunn, who will be retried on the charge of first degree murder. Dunn has already been convicted of attempted murder and weapons charges, but a new jury will hear evidence that Dunn should be convicted of murder for Jordan Davis' killing.

In many cases, like Dunn's, the decision to seek a retrial is up to the prosecution, who can decide whether or not to drop the case.

To learn more about criminal procedure and the justice system, check out FindLaw's comprehensive section on Criminal Law.

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