Non-unanimous criminal jury verdicts

Longtime readers of the blog may remember my interest in non-unanimous jury verdicts. 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.) Only Oregon and Louisiana allow non-unanimous juries in those cases in which the right to trial by jury attaches, but they use them routinely.

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. And the McDonald v. City of Chicago majority (this part of Justice Alito’s opinion did get five votes), in rejecting the argument that the Second Amendment wasn’t fully incorporated against the states, had nothing good to say about Apodaca:

[T]he Court [has] abandoned “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights,” stating that it would be “incongruous” to apply different standards “depending on whether the claim was asserted in a state or federal court.” Instead, the Court decisively held that incorporated Bill of Rights protections “are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.”

[Footnote: There is one exception to this general rule. The Court has held that although the Sixth Amendment right to trial by jury requires a unanimous jury verdict in federal criminal trials, it does not require a unanimous jury verdict in state criminal trials. See Apodaca v. Oregon; Johnson v. Louisiana. But that ruling was the result of an unusual division among the Justices, not an endorsement of the two-track approach to incorporation. In Apodaca, eight Justices agreed that the Sixth Amendment applies identically to both the Federal Government and the States. Nonetheless, among those eight, four Justices took the view that the Sixth Amendment does not require unanimous jury verdicts in either federal or state criminal trials, and four other Justices took the view that the Sixth Amendment requires unanimous jury verdicts in federal and state criminal trials. Justice Powell's concurrence in the judgment broke the tie, and he concluded that the Sixth Amendment requires juror unanimity in federal, but not state, cases. Apodaca, therefore, does not undermine the well-established rule that incorporated Bill of Rights protections apply identically to the States and the Federal Government.]

Moreover, the Court’s recent turn to history in criminal procedure cases should cut very much against non-unanimous criminal juries; as I argued in my Herrera v. Oregon cert petition, there is solid Framing-era evidence that “jury” in the Sixth Amendment (and in Article III) refers to unanimous juries. The latest case to challenge such verdicts, Jackson v. Louisiana, is on Friday’s conference list on the Court; I hope the Justices finally decide to fix this problem, and reinstate the historically understood — and very broadly accepted — unanimity requirement. The Constitutional Accountability Center, which filed the case, has more on this.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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Eugene Volokh · April 24