--- title: "Rule 29, Mistrial, Verdict, and Juror Misconduct" module_id: "MOD-RULE29-MISTRIAL-VERDICT-JUROR-MISCONDUCT" url: "https://jason93.com/legal/federal-process/modules/30-plea-and-trial/rule-29-mistrial-verdict-and-juror-misconduct/" current_through: "2026-08-26" legal_review: "2026-08-25" links_checked: "2026-10-15" links_available: 11 links_checked_count: 11 license: "CC BY 4.0" --- # Rule 29, Mistrial, Verdict, and Juror Misconduct ## Verification boundary This module verifies current Rules 26.3, 29, 31, and 45; the nationwide constitutional sufficiency and retrial rules; the mistrial framework; verdict return and polling; and the federal no-impeachment rule and constitutional racial-bias exception. It does not decide the charged elements, evidence, whether excusable neglect exists, local juror-contact rules, circuit-specific misconduct procedures, or appellate jurisdiction over a particular order. ## Judgment of acquittal under Rule 29 After the government closes its evidence or after all evidence closes, the court must enter a judgment of acquittal on a properly challenged offense if the evidence is insufficient to sustain a conviction, and it may consider acquittal on its own. [Fed. R. Crim. P. 29(a)](https://www.uscourts.gov/sites/default/files/document/federal-rules-of-criminal-procedure.pdf) When the court reserves decision on a Rule 29 motion made before deliberations or before discharge in a bench trial, it must decide the reserved motion on the evidence as it stood when the ruling was reserved. [Fed. R. Crim. P. 29(b)](https://www.uscourts.gov/sites/default/files/document/federal-rules-of-criminal-procedure.pdf) A postverdict Rule 29 motion may be made within fourteen days after a guilty verdict or after jury discharge, whichever is later, and no pre-submission Rule 29 motion is required. [Fed. R. Crim. P. 29(c)(1), (3)](https://www.uscourts.gov/sites/default/files/document/federal-rules-of-criminal-procedure.pdf) Current Rule 45(b)(1) permits a pre-deadline extension for good cause and a post-deadline extension for excusable neglect; its current categorical no-extension provision applies to Rule 35, not Rule 29. [Fed. R. Crim. P. 45(b)](https://www.uscourts.gov/sites/default/files/document/federal-rules-of-criminal-procedure.pdf) Former-rule cases treating a late Rule 29 motion as categorically unavailable must not substitute for the current text. The exact motion date, trigger, extension request, excusable-neglect record, and court order control. The constitutional sufficiency question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found every essential element beyond a reasonable doubt. [*Jackson v. Virginia*, 443 U.S. 307, 318–19 (1979)](https://www.govinfo.gov/content/pkg/USREPORTS-443/pdf/USREPORTS-443-307.pdf) Sufficiency is measured against the elements of the charged crime, not against an erroneously heightened jury instruction, and the reviewing court does not reweigh the evidence or assess witness credibility. [*Musacchio v. United States*, 577 U.S. 237, 243–44 (2016)](https://www.govinfo.gov/content/pkg/USREPORTS-577/pdf/USREPORTS-577-237.pdf) When a reviewing court determines that trial evidence was legally insufficient, the Double Jeopardy Clause requires a judgment of acquittal and bars a second trial; reversal for ordinary trial error does not carry the same retrial bar. [*Burks v. United States*, 437 U.S. 1, 14–18 (1978)](https://www.govinfo.gov/content/pkg/USREPORTS-437/pdf/USREPORTS-437-1.pdf) If the court grants postverdict Rule 29 relief, it must conditionally decide any new-trial motion and state its reasons; the conditional ruling does not affect finality of the acquittal judgment. [Fed. R. Crim. P. 29(d)](https://www.uscourts.gov/sites/default/files/document/federal-rules-of-criminal-procedure.pdf) ## Mistrial and retrial Before ordering a mistrial, the court must give each defendant and the government an opportunity to comment on the propriety of the order, to consent or object, and to suggest alternatives. [Fed. R. Crim. P. 26.3](https://www.uscourts.gov/sites/default/files/document/federal-rules-of-criminal-procedure.pdf) A genuinely deadlocked jury may be discharged and the defendant retried when manifest necessity exists or the ends of public justice would otherwise be defeated. [*United States v. Perez*, 22 U.S. (9 Wheat.) 579, 580 (1824)](https://www.govinfo.gov/content/pkg/USREPORTS-22/pdf/USREPORTS-22-579.pdf) Manifest necessity requires a high degree of necessity and sound trial-court discretion, but neither the phrase “manifest necessity” nor an express recital of every alternative is a talismanic prerequisite when the record shows careful deliberation. [*Arizona v. Washington*, 434 U.S. 497, 505–16 (1978)](https://www.govinfo.gov/content/pkg/USREPORTS-434/pdf/USREPORTS-434-497.pdf) When the defendant requests a mistrial, retrial is barred for prosecutorial or governmental misconduct only when the conduct was intended to provoke the defendant into moving for a mistrial. [*Oregon v. Kennedy*, 456 U.S. 667, 673–79 (1982)](https://www.govinfo.gov/content/pkg/USREPORTS-456/pdf/USREPORTS-456-667.pdf) If the jury cannot agree on all counts, it may return verdicts on counts on which it has agreed, and the court may declare a mistrial on the unresolved counts; those counts may be retried. [Fed. R. Crim. P. 31(b)](https://www.uscourts.gov/sites/default/files/document/federal-rules-of-criminal-procedure.pdf) ## Verdict return, polling, and acquittal classification A federal jury verdict must be unanimous and returned in open court, and Rule 31 permits partial verdicts in the circumstances it identifies. [Fed. R. Crim. P. 31(a)–(b)](https://www.uscourts.gov/sites/default/files/document/federal-rules-of-criminal-procedure.pdf) After a verdict is returned but before the jury is discharged, the court must poll the jurors individually on a party's request and may do so on its own; if the poll shows no unanimity, the court may direct further deliberations or declare a mistrial and discharge the jury. [Fed. R. Crim. P. 31(d)](https://www.uscourts.gov/sites/default/files/document/federal-rules-of-criminal-procedure.pdf) A substantive ruling that the prosecution failed to prove criminal liability is an acquittal for double-jeopardy purposes even when the court mistakenly required proof of an element the offense does not contain; the ruling's label and legal error do not convert it into ordinary trial error. [*Evans v. Michigan*, 568 U.S. 313, 318–30 (2013)](https://www.govinfo.gov/content/pkg/USREPORTS-568/pdf/USREPORTS-568-313.pdf) ## Juror misconduct and the no-impeachment rule During an inquiry into verdict validity, Evidence Rule 606(b) generally bars juror testimony or affidavits about deliberation statements or incidents, the effect of anything on a juror's vote, and a juror's mental processes. [Fed. R. Evid. 606(b)(1)](https://www.uscourts.gov/sites/default/files/document/federal-rules-of-evidence.pdf) Rule 606(b) permits juror evidence about whether extraneous prejudicial information was improperly brought to the jury, an outside influence was improperly brought to bear, or a mistake was made in entering the verdict on the verdict form. [Fed. R. Evid. 606(b)(2)](https://www.uscourts.gov/sites/default/files/document/federal-rules-of-evidence.pdf) Jurors' voluntary alcohol and drug use during trial is not an “outside influence” under the federal no-impeachment rule; *Tanner* relied on trial safeguards and did not authorize juror testimony about that internal misconduct to impeach the verdict. [*Tanner v. United States*, 483 U.S. 107, 117–27 (1987)](https://www.govinfo.gov/content/pkg/USREPORTS-483/pdf/USREPORTS-483-107.pdf) The Sixth Amendment requires an exception to the no-impeachment rule when a juror makes a clear statement showing reliance on racial stereotypes or animus to convict and the statement tends to show that racial animus was a significant motivating factor in the vote to convict. [*Peña-Rodriguez v. Colorado*, 580 U.S. 206, 225–26 (2017)](https://www.govinfo.gov/content/pkg/USREPORTS-580/pdf/USREPORTS-580-206.pdf) ## Application checklist 1. Identify each charged element and the proof admitted when the Rule 29 ruling was made or reserved. 2. Record every Rule 29 motion, reservation, verdict, jury-discharge time, extension request, and ruling. 3. Keep legal sufficiency separate from a circuit-specific Rule 33 weight-of-evidence inquiry. 4. Before mistrial, preserve the proposed basis, each party's position, alternatives, findings, and the full record of jury deadlock or prejudice. 5. Determine who requested or consented to mistrial and, if misconduct is asserted, develop evidence of the prosecutor's objective intent without inferring the *Kennedy* element from mere overreaching. 6. Request a verdict poll after return and before discharge when appropriate and preserve the response of each juror. 7. For misconduct, classify the offered proof under Rule 606(b), preserve admissible nonjuror evidence, and check local rules before contacting jurors. 8. Distinguish an acquittal based on criminal-liability insufficiency from a new-trial order or trial-error reversal before assessing appeal or retrial consequences. ## Open items requiring individualized or circuit research - Charged elements, evidentiary record, preservation, Rule 29 extension facts, and controlling circuit treatment of excusable neglect. - Circuit standards for a Rule 33 weight-of-evidence or misconduct motion, hearing procedures, prejudice, and appellate review. - Local rules, ethics requirements, and court permission governing postverdict juror contact. - Whether a particular ruling is an acquittal, dismissal, mistrial, new-trial order, or trial-error ruling, and the resulting appellate jurisdiction. - Harmlessness, plain error, structural-error questions, and remedies outside the bounded holdings stated here. ## Authorities - [Fed. R. Crim. P. 26.3, 29, 31, 45](https://jason93.com/legal/federal-process/authorities/AUTH-FRCRIM-P-26-3-29-31-45.md) · official source: https://www.uscourts.gov/sites/default/files/document/federal-rules-of-criminal-procedure.pdf - [Jackson v. Virginia, 443 U.S. 307 (1979)](https://jason93.com/legal/federal-process/authorities/AUTH-SCOTUS-JACKSON-443-US-307.md) · official source: https://www.govinfo.gov/content/pkg/USREPORTS-443/pdf/USREPORTS-443-307.pdf - [Musacchio v. United States, 577 U.S. 237 (2016)](https://jason93.com/legal/federal-process/authorities/AUTH-SCOTUS-MUSACCHIO-577-US-237.md) · official source: https://www.govinfo.gov/content/pkg/USREPORTS-577/pdf/USREPORTS-577-237.pdf - [Burks v. United States, 437 U.S. 1 (1978)](https://jason93.com/legal/federal-process/authorities/AUTH-SCOTUS-BURKS-437-US-1.md) · official source: https://www.govinfo.gov/content/pkg/USREPORTS-437/pdf/USREPORTS-437-1.pdf - [United States v. Perez, 22 U.S. (9 Wheat.) 579 (1824)](https://jason93.com/legal/federal-process/authorities/AUTH-SCOTUS-PEREZ-22-US-579.md) · official source: https://www.govinfo.gov/content/pkg/USREPORTS-22/pdf/USREPORTS-22-579.pdf - [Arizona v. Washington, 434 U.S. 497 (1978)](https://jason93.com/legal/federal-process/authorities/AUTH-SCOTUS-ARIZONA-WASHINGTON-434-US-497.md) · official source: https://www.govinfo.gov/content/pkg/USREPORTS-434/pdf/USREPORTS-434-497.pdf - [Oregon v. Kennedy, 456 U.S. 667 (1982)](https://jason93.com/legal/federal-process/authorities/AUTH-SCOTUS-OREGON-KENNEDY-456-US-667.md) · official source: https://www.govinfo.gov/content/pkg/USREPORTS-456/pdf/USREPORTS-456-667.pdf - [Evans v. Michigan, 568 U.S. 313 (2013)](https://jason93.com/legal/federal-process/authorities/AUTH-SCOTUS-EVANS-568-US-313.md) · official source: https://www.govinfo.gov/content/pkg/USREPORTS-568/pdf/USREPORTS-568-313.pdf - [Fed. R. Evid. 606](https://jason93.com/legal/federal-process/authorities/AUTH-FRE-606.md) · official source: https://www.uscourts.gov/sites/default/files/document/federal-rules-of-evidence.pdf - [Tanner v. United States, 483 U.S. 107 (1987)](https://jason93.com/legal/federal-process/authorities/AUTH-SCOTUS-TANNER-483-US-107.md) · official source: https://www.govinfo.gov/content/pkg/USREPORTS-483/pdf/USREPORTS-483-107.pdf - [Peña-Rodriguez v. Colorado, 580 U.S. 206 (2017)](https://jason93.com/legal/federal-process/authorities/AUTH-SCOTUS-PENA-RODRIGUEZ-580-US-206.md) · official source: https://www.govinfo.gov/content/pkg/USREPORTS-580/pdf/USREPORTS-580-206.pdf