A prosecutor might file for a lower charge in an attempt to lower the bar for conviction, but Hughes said that’s not particularly likely. It’s generally much easier to lower the seriousness of the charges than it is to raise it, and charges must frequently be filed before the full prosecutorial investigation is completed.
“There’s some disincentive for them to undervalue their case,” she said.
There’s also no clear answer whether one side generally benefits more from a mistrial. If a defendant testifies in the original trial, prosecutors can use that testimony to pick apart his credibility in a retrial. The defense can do the same with prosecution witnesses.
Then there’s the strain on family members, witnesses who must re-live experiences from the stand and the uncertainty felt by the defendant. All of those factors can have an effect on how jurors view the case.
It’s important to remember that not all mistrials are the same. A mistrial due to an error by one of the attorneys in the case has different implications than one caused by a hung jury. And the circumstances of each individual case make it hard to generalize.
“I don’t think there’s one blanket thing you can say about all mistrials,” she said. “I think that it really comes down to the specific case.”