Finality of Partial Acquittals and Limits on Mistrials After Jury Polling: The South Carolina Supreme Court’s Double-Jeopardy Blueprint in State v. Erb (2025)

Introduction

In State v. John Joseph Erb, the Supreme Court of South Carolina confronted a recurring but difficult trial-management problem: what must a trial judge do when a juror, during polling, disavows unanimity? The case began as a straightforward homicide prosecution but culminated in a mistrial declared sua sponte after polling revealed one juror’s dissent regarding a guilty verdict for voluntary manslaughter. Crucially, the jury had already returned and the court had read a “not guilty” verdict on the greater charge of murder. The court’s opinion—authored by Justice James and joined unanimously—sets out two independent grounds barring retrial:

Under these facts, the “not guilty” verdict on murder was final and bars retrial on that charge; and
Even if the murder verdict were not final, the mistrial was improvidently declared without manifest necessity, which independently bars retrial for both murder and the lesser-included offense of voluntary manslaughter.

The decision therefore clarifies the finality of partial acquittals after verdicts are read and provides a detailed, practical reminder of the strict “manifest necessity” standard governing mistrials—especially when polling reveals dissension.

Summary of the Judgment

The Supreme Court of South Carolina reversed the circuit court’s order that permitted the State to retry Erb for murder and held:

The “not guilty” verdict on murder was final. The verdict form was signed by the foreperson and read into the record; the court did not direct further deliberations after polling revealed a juror’s dissent as to the manslaughter verdict. Under these unique circumstances, jeopardy bars retrial on murder.
Independently, the trial court’s sua sponte mistrial—declared immediately after individually questioning the dissenting juror and without directing the jury to continue deliberations or considering alternatives—was not supported by manifest necessity. Therefore, double jeopardy bars retrial on both murder and voluntary manslaughter.
The court explicitly rejects the State’s “acceptance-of-verdict” argument and distinguishes authority where the defendant moved for a mistrial (State v. Bell, Iowa). Here, the mistrial was not requested by Erb and was precipitated by the court’s own missteps.

Disposition: Reversed. The State may not retry Erb for either offense.

Case Background and Procedural Posture

Charge and Trial: Erb was indicted for murder (alleged blunt force trauma). At trial, over Erb’s objection, the court instructed on voluntary manslaughter as a lesser-included offense.
Verdict Announcement: After five hours of deliberations, the jury returned: not guilty (murder) and guilty (voluntary manslaughter). The verdict was read on the record.
Polling: The State declined to poll; the defense requested polling (obviously intended for the manslaughter verdict). Ten jurors affirmed; the 11th juror (“Juror 16”) answered “no” when asked if it was still her verdict.
Judicial Misstep: Without ordering the jury to continue deliberations, the court individually questioned Juror 16, who disclosed pressure in the jury room and her steadfast “not guilty” position. The court then sua sponte declared a mistrial without argument from counsel.
Post-Trial Motions: Erb sought habeas relief and entry of verdict (Rule 29, SCRCrimP), arguing double jeopardy barred retrial. The trial court denied relief and later misstated in a written order that it had instructed the jury to continue deliberating—contradicted by the transcript.
Appellate Path: The court of appeals dismissed an interlocutory appeal and denied Erb’s extraordinary-writ petitions. The Supreme Court of South Carolina issued a common-law writ of certiorari to review only the ruling permitting retrial on murder, then sought supplemental briefing on manslaughter and resolved both issues.

Analysis

Precedents Cited and Their Influence

State v. Kirby, 269 S.C. 25, 236 S.E.2d 33 (1977): Defines the three double-jeopardy safeguards under the South Carolina and U.S. Constitutions—bar against reprosecution after acquittal, after conviction, and after an improvidently declared mistrial. This framework structures the court’s analysis.
McElrath v. Georgia, 601 U.S. 87 (2024): Reiterates that once rendered, an acquittal is “inviolate,” underscoring the sanctity of a jury’s not-guilty verdict even amidst potential irregularities or inconsistencies.
Green v. United States, 355 U.S. 184 (1957): Recognizes the doctrine of implied acquittal when a jury convicts on a lesser-included offense and is silent on the greater; supports the primacy of acquittals in double-jeopardy analysis.
Blueford v. Arkansas, 566 U.S. 599 (2012): A jury’s mid-deliberation report is not a final acquittal if deliberations continue. The court distinguishes Erb from Blueford because there were no continued deliberations after the not-guilty verdict on murder was read.
State v. Brown, 437 S.C. 550, 878 S.E.2d 364 (Ct. App. 2022): Aligns with Blueford in South Carolina. Again distinguished because the Erb jury did not return to deliberations after polling.
State v. Bell, 322 N.W.2d 93 (Iowa 1982): Held no implied acquittal when polling revealed nonunanimity and the defendant moved for a mistrial. Distinguished because Erb did not seek a mistrial; the court declared it sua sponte and prematurely.
United States v. Jorn, 400 U.S. 470 (1971): The trial court’s sua sponte mistrial without considering alternatives or allowing party input lacked manifest necessity; retrial barred. The Supreme Court of South Carolina deems Jorn a near fact-pattern fit.
Arizona v. Washington, 434 U.S. 497 (1978): Manifest necessity must be assessed in context; deference is due where trial judges thoughtfully consider alternatives. Erb’s trial judge did not.
Renico v. Lett, 559 U.S. 766 (2010); Illinois v. Somerville, 410 U.S. 458 (1973): Emphasize the “high degree” of necessity required to justify a mistrial. No such necessity existed here.
State v. Benton, 443 S.C. 1, 901 S.E.2d 701 (2024): Affirms that mistrials must meet a “manifest necessity” threshold and that trial courts should consider alternatives. Erb contrasts sharply: no alternatives were considered and no input solicited.
State v. Robinson, 360 S.C. 187, 600 S.E.2d 100 (Ct. App. 2004): Discusses the Allen charge and juror duties; cited for standard tools to address indecisive juries.
State v. Kelly, 372 S.C. 167, 641 S.E.2d 468 (Ct. App. 2007): When a juror indicates disagreement during polling, the correct response is to instruct the jury to continue deliberations—precisely what was not done here.
Benton v. Maryland, 395 U.S. 784 (1969): Incorporates the Fifth Amendment’s Double Jeopardy Clause against the states via the Fourteenth Amendment.
State v. Frasier, 437 S.C. 625, 879 S.E.2d 762 (2022): Standard of review—questions of law decided de novo (applied to jeopardy attachment).

Legal Reasoning

1) Finality of the “Not Guilty” Murder Verdict

The court holds that, on these facts, the acquittal on murder was final, making retrial constitutionally impermissible. Key elements:

Signed and read verdict. The murder acquittal was signed by the foreperson and read into the record without challenge or immediate qualification.
No continued deliberations. After the polling problem surfaced, the trial judge did not send the jury back to deliberate. Without renewed deliberations, the prior “not guilty” verdict retained its finality.
Acceptance not dispositive. The State argued the verdict was not “accepted” by the court. The Supreme Court rejected that argument under these unique circumstances: once read and not revisited through further deliberation, the verdict’s finality did not depend on a talismanic act of formal acceptance.
Distinguishing Blueford and Brown. Those cases reject finality where deliberations continue. Here, they did not.
Distinguishing Bell (Iowa). In Bell, the defendant’s own mistrial request prevented further deliberations and eliminated the possibility of a verdict. Erb’s mistrial was court-imposed and premature, not defense-initiated.

Doctrinally, this part of the holding anchors itself in the “inviolate” status of acquittals (McElrath) and the moment at which a verdict becomes final—once rendered and not reopened through further deliberations.

2) Independent Bar: Improvident Mistrial Lacked Manifest Necessity

Even if the murder verdict’s finality were doubted, the court holds retrial is barred because the mistrial was declared without manifest necessity. Salient points:

Incorrect response to polling dissent. Best practice—reflected in Kelly and Robinson—is to send the entire jury back to continue deliberating and consider, if appropriate, a properly framed Allen charge. The judge instead extracted a single juror and questioned her alone.
Individual juror questioning is coercive. Both defense and the State warned against it. The judge proceeded anyway, eliciting that Juror 16 was steadfastly “not guilty” and felt pressured by other jurors.
No alternatives considered; no input sought. As in Jorn, the judge neither sought input before declaring a mistrial nor explored less drastic remedies (continued deliberations, repolling on particular counts, partial verdict protocol, or an Allen charge if later warranted).
“Implosion” theory rejected. The State’s argument that the announced split (at least 10–1 on manslaughter) made a mistrial inevitable was rejected; the problem was not the split but the court’s mishandling—especially its failure to return the jury to deliberations.
Manifest necessity requires a high degree of need. Guided by Washington, Renico, and Somerville, and by the court’s own Benton decision, the Supreme Court found none of that deliberative care here.

Result: The sua sponte mistrial was improvidently declared. Because the mistrial was not requested by the defense and jeopardy had attached (the jury was sworn), double jeopardy bars reprosecution for both the charged offense (murder) and the lesser-included offense (voluntary manslaughter).

3) Why the Bar Reaches the Lesser-Included Offense

A lesser-included offense is the “same offense” for double-jeopardy purposes. Where a mistrial is improvidently granted, reprosecution for any offense tried in the first proceeding—including lesser-included offenses—is barred. The court therefore expressly extends the double-jeopardy bar to voluntary manslaughter as well, not merely to the greater offense.

Practical Impact and Forward-Looking Implications

A. Bench-Level Guidance: What Trial Judges Must Do

Respond to polling dissents by returning the full jury to deliberations. The first, best step is to state the verdict is not unanimous and instruct the jury to continue deliberating. Do not single out a dissenting juror for questioning.
Consider, but do not rush to, an Allen charge. If the jury later reports deadlock, consider a balanced, noncoercive Allen charge. The timing and language must avoid undue pressure.
Explore alternatives before declaring mistrial. Put contemplated options on the record, solicit counsel’s views, and assess whether any “high degree” of necessity truly exists.
Partial verdicts and count management. Where appropriate, consider accepting partial verdicts on counts or degrees the jury has unanimously resolved, subject to well-settled constraints and ensuring clarity on the record.
Record integrity matters. Written orders must accurately reflect the transcript. Here, the trial court’s later assertion about “continuing deliberations” was contradicted by the record and expressly rejected.

B. For Prosecutors

Be clear on polling strategy. If a not-guilty verdict is read on a greater offense, consider whether to request polling on that count as well—especially if a lesser-included guilty verdict is also announced and the defense seeks polling.
Guard against improvident mistrials. If a judge signals mistrial, request continued deliberations or propose a tailored Allen charge. Failure to do so risks losing the ability to retry.
Partial verdicts can be final. Once a not-guilty verdict is read and deliberations do not resume, it may be final even without formal “acceptance.” Preserve issues immediately.

C. For Defense Counsel

Limit the scope of polling when advantageous. As Erb did, counsel can request polling targeted to the unfavorable count to avoid destabilizing a favorable acquittal—though judges must handle polling carefully.
Object to coercive inquiries. Oppose one-on-one juror questioning; insist on continued deliberations as the default remedy for polling dissents.
Move for dispositive relief promptly. If a court permits retrial after such errors, consider habeas or extraordinary writs to avoid unconstitutional reprosecution.

D. Doctrinal Clarifications

Finality without “acceptance.” The court clarifies that, in this context, a signed and read not-guilty verdict that is never submitted for further deliberations is final—defeating an “acceptance” formality argument.
Blueford’s limits. A reported jury view of acquittal is not final if deliberations continue. Erb underscores that the no-deliberations fact is dispositive in the other direction.
Manifest necessity remains exacting. Sua sponte mistrials are perilous. Trial courts must use a measured, on-the-record process that contemplates and rejects lesser remedies.

Complex Concepts Simplified

Double Jeopardy: A constitutional protection that prevents the State from trying a person twice for the same offense. It bars reprosecution after an acquittal, after a conviction, or after a mistrial declared without sufficient legal justification (“manifest necessity”).
Jeopardy “Attaches” vs. Jeopardy “Bars”: Jeopardy attaches when the jury is sworn. Whether it “bars” a retrial depends on how the first proceeding ended (e.g., by acquittal, conviction, or an improvident mistrial).
Manifest Necessity: A high threshold justifying a mistrial over the defendant’s objection. Courts must explore alternatives and explain why a mistrial is truly necessary to ensure fairness.
Allen Charge: A supplemental instruction encouraging jurors to continue deliberating, consider one another’s views, and try in good faith to reach a unanimous verdict—without yielding conscientiously held convictions.
Jury Polling: After a verdict is announced, any party may request that each juror be asked individually whether the announced verdict is theirs and remains their verdict. If a juror dissents, the proper step is to send the jury back to deliberate.
Lesser-Included Offense: A crime whose elements are entirely encompassed by a greater charged offense. For double-jeopardy purposes, the greater and its lesser-included offenses are the “same offense.”
Partial Verdict: In multi-count or greater/lesser structures, a jury may be unanimous on some matters but not others. Courts may accept verdicts on resolved matters while managing unresolved ones—if done carefully and lawfully.
Common-Law Writ of Certiorari (South Carolina): An extraordinary procedural device allowing the Supreme Court to review a lower court’s order that is otherwise not immediately appealable but presents important legal questions requiring prompt resolution.

Why This Case Matters

Erb is a practical guide for trial courts and litigants faced with a juror’s late-stage dissent. It cements two critical guardrails:

When a not-guilty verdict on a greater offense is signed, read, and never resubmitted to the jury, it is final—even if a lesser count later unravels during polling.
A court’s sua sponte mistrial in response to polling dissent—without returning the jury for further deliberations or considering less drastic remedies—falls short of manifest necessity and will bar reprosecution on all charges tried.

The decision thus strengthens double-jeopardy protections in South Carolina and supplies a step-by-step template for responsibly handling polling crises, reducing the risk of reversible error and unconstitutional reprosecution.

Conclusion

State v. Erb delivers a clear message with two independent holdings. First, the finality of an acquittal can crystallize once a not-guilty verdict is signed and read and deliberations do not resume. Second, a mistrial declared sua sponte, immediately after coercive one-on-one juror questioning and without considering less drastic alternatives, lacks manifest necessity and bars retrial on both greater and lesser-included offenses. The opinion synthesizes federal and state precedents to set an exacting standard for trial judges navigating polling dissents and underlines the constitutional primacy of acquittals. Going forward, Erb should lead bench and bar alike to adopt disciplined procedures—send juries back to deliberate, avoid singling out jurors, and build a record of considered alternatives—so that verdicts are reached correctly the first time and retrials are not constitutionally foreclosed.