Jury Unanimity in Criminal Cases

One interesting result yesterday was that Louisiana approved a state constitutional amendment providing that juries must be unanimous to convict a defendant of a crime. This means that only one state–Oregon–says that in some criminal cases there can be a conviction without a unanimous jury.

In a fractured decision 46 years ago, the Supreme Court held that the Sixth Amendment as incorporated against the states permitted non-unanimous jury verdicts in criminal cases. If a case arises from Oregon presenting this question, the Court should grant review and make clear that the Sixth Amendment requires unanimous jury verdicts in all criminal cases. There is, though, a chance that Oregon will reform its own law and render the issue moot.

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13 Responses

  1. Joe says:

    There might be other comments but don’t see them — that happens sometimes.

    On some level, especially given a much more homogeneous population, I see some defense to non-unanimous juries at least in non-capital cases. At least, I’m not sure about it being unconstitutional on the state level in particular. But, given current law, 49 of 50 or even 48 of 50 states doing it probably does suggest a level of support of what due process requires for outliers to be blocked.

    Flexibility regarding the details of juries was one thing in particular left somewhat open in the Constitution. Thus, the rules for non-criminal trials were not covered by Art. III and the Seventh Amendment only goes so far there. This also influenced in the exceptions to incorporation — e.g., the grand jury requirement has not been incorporated.

    And, unanimous juries are not even expressly cited. The specific nature of the jury trial right is somewhat open to debate. Unanimous juries are particularly important in LA given it helps protects black defendants. I’m not sure about Oregon, but there are various types of minorities and viewpoints, so it would help there too. Finally, the Supreme Court narrowly upheld allowing non-unanimous juries with Justice Powell splitting the baby (federal juries must be unanimous).

  2. Joe says:

    ” homogeneous population” should be “heterogeneous”