In Apodaca v. Oregon (1972), the Supreme Court held that the Sixth Amendment requires unanimity for a verdict -- but that the Fourteenth Amendment does not carry this rule over to the states, and that even 9-3 verdicts are constitutionally permissible. The Jury Trial Clause is thus the one Bill of Rights clause that is neither completely incorporated against the states via the Fourteenth Amendment, nor completely not incorporated. (Recall that the Bill of Rights originally applied only to the federal government, and has been applied to the states only through the Fourteenth Amendment.)
Interestingly, Apodaca was a 4-1-4 decision, in which both of the groups of 4 Justices took the view that the rule should be the same for federal and state trials. Only one Justice, Lewis Powell, believed that the rule should differ; but since he was the swing vote, his position became the law. To this day, the same two states that were involved in Apodaca and its companion case -- Oregon and Louisiana -- provide for nonunanimous juries. SCOTUSblog reports that the Court is about to consider a certiorari petition in Lee v. Louisiana asking the Justices to reconsider the question. The odds are much against such reconsideration, because the Justices rarely overrule their precedents (they do so sometimes, and the cases draw a lot of attention, but such overrulings are nonetheless rare). Still, this seems -- at least at this stage -- like the classic original meaning vs. precedent argument, made to a court that has shown a great deal of interest in original meaning. And in my view the petition (which is much worth reading) makes a pretty powerful argument why this particular precedent deserves less respect than many other precedents might. In any case, indeed looks like a "petition[] to watch," in SCOTUSblog's words.
Federal aid to this blog is on the way -- the Long Conference starts a week from Monday. The silly season will then be over and the normal supply of grist for bloggers' mills will be available.
Over at SCOTUS Blog (which Akin Gump has apparently decided to position as the up-to-the-minute Supreme Court resource, rather than an interactive forum), there is the first slug of cases to watch. Two cases are interesting as they address 4-1-4 decisions:
07-1484 Kemp v. Osage Nation is a replay of Idaho v. Couer d'Alene Tribe (1997) in which Kennedy and O'Connor took different positions on Ex parte Young actions. This will be the first chance for Roberts and Alito to express themselves on a core federalism issue.
07-1523 Lee v. Louisiana is a replay of Apodaca v. Oregon (1972) which allowed non-unanimous felony jury verdicts. In this case, Powell took an idiosyncratic position while Blackmun (who had not yet become Justice Blackmun) joined White, Burger and Rehnquist. Given Scalia's position in Crawford and the Aprendi line of cases, it should go about 7-2.
I'd be willing to trade the requirement for a unanimous guilty verdict for, say, 11-1 or maybe even 10-2 (is ten out of twelve sufficient for "beyond a reasonable doubt"?) for any other split verdict meaning acquittal. That's the way it should be, and I challenge anyone to explain to me why a not guilty verdict should have to be unanimous. Just because it's always been done that way (if that's indeed the case) doesn't mean it should remain the status quo.
I've asked and wondered that several times myself without satisfaction. I would however alter the jury tampering laws to allow whatever punishment would have been imposed for conviction on the original charge as well as whatever punishment is meted for the tampering itself.
I'm not sure that I would be willing to go for 10-2 being a conviction though to get it, perhaps 9-3 and less should be outright aquital, 10-2 the only remaining tie, and 11-1 and 12-0 being conviction. By the time two jurors aren't willing to convict, something is seriously wrong with the state's case. I'm somewhat more willing to see 1 juror as someone who wouldn't convict under any circumstance or other aberant behavior.
It might be perspective. It might be interesting to do a count--though you also need to count the various wardens and prison directors who are the nominal parties in federal habeas corpus litigation as well as the cases with just the name of a particular state in the caption.
every time any bill of rights case comes before the court there would always be a tempting compromise of saying that yes the x provision of the amendment means that but that -part of the provision isn't incorporated.
every single ruling on the bill of rights could turn on an extra step of incorporation doctrine-every single 4th amendment or 1st amendment case could be compromised this way by some slick swing voting justice.
there is a reason why nobody else agreed with justice powell.
come to think of it-the whole idea that certain rights which are in the bill of rights don't apply in state prosecutions is kind of silly. nobody seriously believes that the rights are any less important or have a diffrent balancing test in state vs federal prosecutions.
Well, what about the grand jury clause? I would almost prefer that all cases state and federal require a preliminary hearing rather than force the grand jury rule on both.
Something else I would be interested in, what are stats on prosecutors retrying cases as the jury leans more and more towards aquital without reaching unanimity? I would hope that few prosecutors would bother retrying cases that went 11-1 or 10-2 for aquital. It wouldn't surprise me at all if the point where it flips from most are retryed to most are not is at 7-5 or 8-4 for aquital though.
most states which have only a right to a preliminary hearing also have grand juries anyway for the more serious cases where the state doesn't want to have a preliminary hearing on the record (like my state, MD, for instance) -so it really wouldn't be that much of a change
But as a point of fact, yes, the 14th A meant to incorporate the entire bill of rights to the states.
When it comes to the meaning of "jury" for the original public legal meaning in 1787, it clearly meant decision by a unanimous verdict of twelve. That was a standard of what came to be called "substantive" due process. The mathematics of this is discussed in a blog article, and the meaning at another blog article .
If the petition is to be believed, commentators such as Blackstone and Story believed unanimity to be required.
Care to provide one example of ANYONE who said it was the intention to overturn Barron? A House Judiciary report in 1871 written by John Bingham said just the opposite.
You should be aware that Bingham viewed the privileges and immunities of United States citizens as a Bill of Rights.
As far as federal questions are concerned, Bingham pointed out if it is a right for blacks to sit on juries or not, only state laws can decide!
Quoting Barron v. Baltimore (1833),[53] Representative Michael Kerr of Indiana argued that the Bill of Rights limited only Congress.[54] Martin Thayer of Pennsylvania responded: "Of what value are those guarantees if you deny all power on the part of the Congress of the United States to execute and enforce them?"[55] Thayer's argument exhibited the intent of what would become the Fourteenth Amendment. CONG. GLOBE, 39th Cong., 1st Sess. 1270 (Mar. 8, 1866).
See also Amar, Akhil Reed. 1992. "The Bill of Rights and the Fourteenth Amendment." Yale Law Journal 101.
Amar, Akhil Reed. 1992. "The Bill of Rights and the Fourteenth Amendment." Yale Law Journal 101.
Again, did ANYONE ever say it was their belief the 14th amendment was to overturn Barron in 1866?
See Akhil Reed Amar taken behind the woodshed here.
"(2)(B) Other Offenses. As to any offense for which the death penalty is not mandatory, a finding of guilty results only if at least two-thirds of the members present vote for a finding of guilty.
(3) Acquittal. If fewer than two-thirds of the members present vote for a finding of guilty—or, when the death penalty is mandatory, if fewer than all the members present vote for a finding of guilty—a finding of not guilty has resulted as to the charge or specification on which the vote was taken." (Discussion on (2)(B) omitted)
The advantage to the straight thumbs-up/thumbs-down system is the lack of a hung panel--if the prosecution doesn't make it over the two-thirds bar on the first try, the defendent goes free. Whether this works out to the advantage of the prosecution or defense is left to someone smarter than me.
That echoes my view and those are the numbers I've come to myself. While we can't give a percentage to what "beyond a reasonable doubt" is, certainly 12-0 (100%) meets it, and I think 11-1 (91.6%) arguably meets it, too. Anything less, however, means reasonable doubt exists.
Another way to look at it, however, is that after voir dire, all 12 jurors should legally be deemed to be per se reasonable people. If any one of them has a doubt, it is therefore a reasonable doubt and thus anything less than "unanimous guilty" should mean an acquittal. But since we'd be changing the system, I'd be willing to "trade" 91.6% for 100% in favor of acquittal rather than mistrial.
The notion of the prosecution getting a do-over if the defendant is not able to convince all 12 jurors of his innocence flies in the face of the presumption of innocence.
The notion of the prosecution getting a do-over if the defendant is not able to convince all 12 jurors of his innocence flies in the face of the presumption of innocence.
Disclaimer: IANAL, but I was a juror on a trial with multiple defendants, dozens of charges, and many days of deliberations. We convicted on some, acquitted on some, and were hung on some charges. For at least that one trial, I think the comment 'is not able to convince all 12 jurors of his innocence' misses the point. We happily acquitted on charges where the jury thought the defendants probably did commit the crime, but that it had not been proved beyond a reasonable doubt. You don't have to convince a juror the defendant is *innocent* to get a not guilty vote.
As to the hung counts, if the evidence is such that 11 jurors are convinced of guilt BARD, and 1 thinks the evidence almost-but-but-not-quite meets that standard, I'm not sure that should result in an acquittal.
And why should a prosecutor get a second chance to wield the awesome power of the state against a single D on that basis? Get it right the first time.
I'm not saying jurors are unable to do their jobs, and multi-defendant, multi-charge cases only confuse the issue, which is quite simple. I'm saying when jurors cannot agree on a defendant's guilt after an adequate time for deliberation, a deadlock should be an acquittal not a mistrial. Clearly the prosecution did not prove its case beyond a reasonable doubt if reasonable members of the community (the jurors) have doubts about the defendant's guilt. It shouldn't get repeated chances at trying to convict the defendant due to mistrials. To require an acquittal to be based on a unanimous verdict puts a burden of proof on the defendant. The presumption of innocence means the jury starts out 12-0 in favor of innocence (well, "not guilty" to be more precise). There is no logical or just reason why the defendant should have the burden of maintaining that presumption - the burden is on the prosecution to rebut it.
The prosecution has the burden of proof in a criminal case, not the defendant. The defendant is supposed to be presumed innocent. Thus, each juror should begin the trial with a vote of "not guilty." Only if the prosecution is capable of convincing every juror of the defendant's guilt, such that no juror has a reasonable doubt about changing his/her vote from not guilty to guilty, should the defendant be found guilty. Otherwise, it should mean acquittal. If some jurors are convinced of the defendants guilt and some are not, it should not be a mistrial; rather, the prosecution should lose. It did not prove its case. Whether beyond a reasonable doubt requires 12-0 or whether 11-1 is sufficient is something worth debating. A conviction based on anything less than 11-1 (less than 92% concurrence) would make a mockery of both the presumption of innocence and the high burden of proof required to rebut it.
As a side note, I believe there should be 3 verdicts: guilty, not guilty, and innocent. An innocent verdict would normally require some showing by the defendant, would require proof by a preponderance of the evidence, and would entitle the defendant to damages, costs, and attorney's fees. I'd hope a lot of juries would "split the baby" and vote for the middle ground of "not guilty" (we have too many people in prison as it is, and it's far too easy to convict someone - a newborn chimpanzee could get a 95% conviction rate under modern rules of criminal procedure and evidence).
As an undergrad at the University of Oregon I took a class on decision-making and immediately became interested in applying techniques from the social sciences to legal problems.
More specifically, I am interested in how non-unanimous jury rules affect the quality, internal dynamics, and results of deliberations. Would one of the professors who frequents the VC kindly email me (click on the link above) if you can point me to any literature, research, or other relevant information.
My best guess is that non-unanimous jury rules actually increase the quality of deliberations and help avoid false-convictions. My theory is that unanimous jury rules give jurors a strong incentive to engage in groupthink, reach consensus quickly, and punish dissent. My guess is that allowing one juror to dissent while still allowing a conviction (or acquittal) mitigates these effects, allow dissenting voices to be heard, and consider all sides of the argument without threat of a hung jury or being stuck in a Motel 6 for while arguing in the jury room every day.
However, since I don't have graduate level training in economics, statistics, or psychology I don't really know how to test my hypothesis. All suggestions are welcome.
R. Friedman,
I don't agree with your prediction. Scalia is more than happy to adhere to precedent when it maintains conservative results, see e.g. Harris v. United States (mandatory minimums Apprendi-exempt). Europhile Justice Breyer won't be on board, nor will judicial minimalists Roberts and Alito. Thomas might hold, but then will just have Harris II with Justice Thomas writing the lead dissent.
The petition for cert in this case contains references to several papers on that very topic. In fact such considerations apparently helped lead to the decision being challenged. However if the summary of the papers in the petition is correct that intuitive idea is outwieghed by the majority simply ignoring the dissenting members of the panel.
1) Triers of fact must be unanimous because the law has assigned a burden of proof reflecting the comparative risks of Type 1 and Type II errors in factual determinations. There is no such risk in legal decisions.
2) One reason is that such a rule would make Supreme Court decisionmaking largely unworkable in practice: Every Justice would hold veto power over the Court in every case.
Actually if it only affects 2 states, it is more likely to be overturned. It means less convictions overturned.
Speaking of sure grants, there's 07-1601/07-1607
Burlington Northern v. US and Shell Oil v. US -- a CERCLA case finding businesses liable for contribution that drew 8 votes for en banc with Kozinski writing the dissent from the denial.
When the swing vote agrees on the outcome, but not the reasoning, it seems that while the case would be decided, no particular reasoning would become "law." If it's 4-1-4, with the 4 and the 4 agreeing on the correct standard to apply, but disagreeing as to the outcome for some reasoning, and the 1 agreeing with one of the groups of 4 but for some totally left field reason, that swing vote decides the outcome of the case, but not the law.
To decide the law, you look to see what legal theories have at least 5 votes. How can it ever be that a 1 vote legal theory decides the law?
Similarly, if all 5 justices concurred with each other on an outcome, but each one had a wildly different legal theory, and 4 dissented, the case would be decided but none of the opinions of the 5 would be binding, even though each of the 5 was a "swing vote."