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My husband's jury trial has been done and they gave him a not guilty sentence for my husband domestic violence case.

San Diego, CA |

However, the DA is not satisfied with what the jury has decided. Now i find out that they will see if they can do a re-trial for the misdemeanor case against my husband. I was confused about this. Is it possible they may do a re-trial? If so, would we have to testify again if there is a new jury or could they use the testimonies they printed out from the first trial?
Answer is greatly appreciated...

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Attorney answers 3


Your question is a little bit unclear.

If a jury finds a person "not guilty," then the case cannot be tried again. (There's no such thing as a "not guilty sentence." A sentence is the punishment imposed after a person is found GUILTY.)

Does he have two cases? A misdemeanor and a domestic violence case? If so, then the misdemeanor case is probably independent of the domestic violence case.

Did he have more than one charge in the same trial? Sometimes the jury reaches a verdict on some charges, but cannot agree on others. If that's what happened, and the jury found your husband not guilty on some charges but "hung" on others, then those remaining charges can be tried again.

Generally speaking, the testimony from the first trial can only be used if the witnesses are unavailable to testify in the second trial. "Unavailable" could mean the witness is deceased, nobody can find them, or the witness refuses to testify.

His lawyer will know what happened at the trial, and can give you a better answer than somebody on a website who knows nothing about the case.


If your husband was acquitted (that means found not guilty unanimously by all 12 jurors), then they cannot retry him on that charge. Anything less than 12-0 means it was a mistrial - a "hung" jury. If it was hung, they can retry him on the same charges.

If he was charged with a felony and the jury found him not guilty of a felony, but hung on a lesser misdemeanor count, then they can choose to retry him on any charges that survive.

If he started out with several misdemeanor charges, then the jury's verdict of not guilty means they can't retry him on that charge, but they can go forward on any other charges that didn't result in a unanimous verdict.

Yes, prior testimony can be used, but the witness would have to be declared "unavailable" in order for the prosecutor to do that. Otherwise, you could be required to testify again.


Either your husband has another case pending, which the prosecution intends on taking to trial. Or, the jury in this case actually could not arrive at a verdict and the judge declared a hung jury. If that is what happened than the state has the right to try the case again. What did not happen, and what cannot happen in this country, is that the jury found your him not guilty and wants to try him again on the same case. That is impossible; our constitution prohibits that. The state gets one try on every case and that's it.