State v. Gann

GOODWIN, J.,

concurring in part and dissenting in part.

I dissent only from that part of the majority opinion which refuses to apply the federal interpretation of the Sixth Amendment to the State of Oregon.

For the first seventy-five years of its history, Oregon, in company with all the states except Louisiana, required a unanimous, verdict in felony cases. Then, in 1934, the people of Oregon amended Article I, § 11, of the state constitution. The principal reason stated for the amendment was that its adoption would tend to eliminate the evil of the hung jury and the consequent expense of the new trial. ① There was no organized opposition to the referendum, and it passed. As noted by the majority, there was little reason to question the federal constitutionality of the 1934 amendment until Maxwell v. Dow, 176 US 581 , 20 S Ct 448 , 44 L Ed 597 (1900), was overruled by Duncan v. Louisiana, 391 US 145 , 88 S Ct 1444 , 20 L Ed 2d 491 (1968).

Duncan v. Louisiana, supra, has now held that trial by jury is fundamental to the American scheme *577 of justice and that the Due Process Clause of the Fourteenth Amendment guarantees trial by jury to criminal defendants in state courts. While the court in Duncan v. Louisiana stopped short of a specific holding that a jury trial in a state court must be conducted according to federal standards, a subsequent per curiam opinion dealing in part with an Oregon case strongly suggests that state trials commenced after the date of Duncan must conform to federal standards, one of which requires a unanimous verdict to convict. De Stefano v. Woods, 392 US 631 , 88 S Ct 2093 , 20 L Ed 2d 1308 (1968).

When a state’s own constitution is challenged as repugnant to the federal constitution, the state court should lay aside its presumptions favoring the constitutionality of statutes generally, and decide the federal supremacy question in light of the controlling precedents of the United States Supreme Court. See, e.g., Reitman v. Mulkey, 387 US 369 , 87 S Ct 1627 , 18 L Ed 2d 830 (1967). Accordingly, I believe the time has arrived for Oregon to recognize that the right to a unanimous jury verdict in a criminal trial is so fundamental to liberty under the American scheme of justice as to amount to a due-process right. I believe that our state constitution is out of step with the United States Constitution as the Sixth Amendment has been interpreted by the United States Supreme Court.

In contrast to the Oregon amendment allowing a verdict by a jury which contains unconvinced jurors, the federal system has always regarded the unanimous verdict as an essential ingredient of the Sixth Amendment’s guarantee of a jury trial. Thompson v. Utah, 170 US 343, 350-351 , 18 S Ct 620, 623 , 42 L Ed 1061, 1066-1067 (1898); Maxwell v. Dow, 176 US at 586 , 20 *578 S Ct at 450-451 , 44 L Ed at 599 ; Patton v. United States, 281 US 276, 288 , 50 S Ct 253, 254 , 74 L Ed 854, 858 , 70 ALR 263 (1930); Andres v. United States, 333 US 740, 748 , 68 S Ct 880, 884 , 92 L Ed 1055, 1065 (1948).

The origin of the unanimity rule is not universally agreed upon. However, it is undisputed that for more than five centuries Englishmen knew that they could not be convicted of crime except by the unanimous verdict of twelve peers. ② 1 W. Holdsworth, History of the English Law 318 (3d ed rewritten 1922). Moreover, by the time of the American Eevolution, the protection of unanimity in criminal cases was one of the Englishman’s most cherished rights. See 4 Blackstone, Commentaries *349-*350. And see W. Forsyth, History of Trial by Jury 210-215 (new ed Morgan 1876); M. Hale, History of the Common Law 293 (and note at 299) (Runnington ed 1779); J. Thayer, Preliminary Treatise on Evidence at the Common Law (1898).

There is no reason to believe that the American colonists who adopted our Bill of Eights abandoned their English tradition with respect to trial by jury. Indeed, the evidence strongly suggests that the Sixth Amendment guarantee of a jury trial in all criminal *579 cases was intended to incorporate all the elements of a jury trial that were deemed protective of individual liberty in this country and in England when the Constitution was adopted.

* * Those elements were — (1) that the jury should consist of twelve men, neither more nor less; (2) that the trial should be in the presence and under the superintendence of a judge having power to instruct them as to the law and advise them in respect of the facts; and (3) that the verdict should be unanimous.” Patton v. United States, 281 US at 288 .

And see Andres v. United States, 333 US 740 ; Maxwell v. Dow, 176 US 581 ; Thompson v. Utah, 170 US 343 ; all supra.

Several important functional advantages result from the unanimity rule. If at least one juror disagrees with the majority, his opinion and the reasons for it must be heard and considered by the majority. He cannot be ignored, because until the majority persuades him to accept their view no verdict can be returned. This undoubtedly decreases the likelihood of precipitancy and increases the opportunity for a full and adequate discussion of every issue about which there is reasonable doubt. Kalven & Zeisel, The American Jury: Notes for an English Controversy, 48 Chi B Rec 195, 201 (1967).

A guilty verdict in which only a majority of the jury can concur strongly suggests that the jury contains persons who are not convinced of the prisoner’s guilt. Indeed, it may contain jurors who are firmly convinced of the person’s innocence. These unpersuaded jurors may be merely incorrect; or they may be less susceptible to passion and prejudice than the majority, and therefore correct. It was to this latter *580 point that Mr. Justice Story referred when he added the following footnote to a discussion of the reason for the institution of trial by jury:

“A trial by jury is generally understood to mean * * * a trial by a jury of twelve men, impartially selected, who must unanimously concur in the guilt of the accused before a legal conviction can be had. Any law, therefore, dispensing with any of these requisites, may be considered unconstitutional.” 2 J. Story, Commentaries on the Constitution of the United States § 1779, note 2 (5th ed 1891).

Judge Story said that the “object of trial by jury in criminal cases is, to guard against a spirit of oppression and tyranny on the part of rulers, and against a spirit of violence and vindictiveness on the part of the people. Indeed, it is often more important to guard against the latter than the former * * *.” Id. at § 1780. Thus, because it requires the concurrence of the unimpassioned and the unprejudiced, the protection of unanimity increases the likelihood that the guilt of the accused will truly be established beyond a reasonable doubt.

The distinction between liberty and property has made some commentators, such as W. Forsyth, oppose the unanimity rule in civil cases, but wholeheartedly endorse it in criminal cases. W. Forsyth, supra at 210.

It may be argued that the state no longer prosecutes religious and political heretics, or at least that political and religious dissent is protected by the First Amendment, and that the citizen no longer needs the additional guarantee of his liberty which is provided by the unanimous jury.

*581 Similarly, it may be argued that the criminal defendant in modern times has so many other constitutional protections that, regardless of the nature of the crime of which he is charged, he need have no fear of an unjust verdict by a majority of twelve of his fellow citizens so long as the jury is impartial.

It has been argued, as noted, that the requirement of unanimity allows irrational, perverse, or dishonest jurors to “hang juries,” thereby obstructing justice and putting the state to the unnecessary expense of multiple trials. This argument, however, is unsupported by objective data, even though 48 states and the federal judicial system refused to follow Oregon’s lead and have adhered to the unanimous-verdict rule.

However, assuming some validity in one or more of the arguments against unanimity, the fact remains that if a citizen can be convicted by only a majority (or, in Oregon, by a statutory fraction) of the jury, he has less protection than he had at common law. If Oregon can constitutionally provide for a ten-to-two verdict, it can, with equal constitutionality, provide for a verdict by a simple majority.

A local law making it easier for the state to convict is not necessarily bad. But a local law which deprives a person of a right that is fundamental to due process of law cannot stand. Since the only kind of verdict recognized by courts operating under the Federal Constitution is the unanimous verdict, I am forced to conclude that unanimity has been held to be fundamental to federal due process. If there is no federal constitutional requirement of unanimity, there is, of course, no federal standard at all, except “fair procedure,” for measuring the compliance of the various states with the demands of due process. I find it *582 difficult to believe that the United States Supreme Court will permit fifty states to decide for themselves what constitutes a Sixth Amendment trial by jury.

Neither this court nor the United States Supreme Court has ever departed from common-law antecedents in order to take away a constitutional safeguard of personal liberty. It is true that we no longer insist that a jury be made up of male white property owners. But none of those common-law qualifications for jury service evolved to protect individual liberty. The unanimity rule is related directly to liberty.

In 1967, this court summarily denied habeas corpus relief to Frank Anthony Carcerano, who had belatedly challenged his 1962 conviction of armed robbery on the ground that the jury had been instructed on the ten-to-two verdict, in violation of the Federal Constitution. Before the United States Supreme Court on a petition for a writ of certiorari to the Supreme Court of Oregon, Carcerano subsequently advanced the argument that the Oregon jury trial had denied him due process of law under the United States Constitution. The United States Supreme Court granted certiorari, but eventually held that it need not decide the constitutional question in Carcerano’s case because Carcerano had been tried before the publication of the decision in Duncan v. Louisiana, supra. De Stefano v. Woods, supra. In view of the specific holding that Duncan v. Louisiana is not retroactive, and in view of strong suggestions in De Stefano v. Woods and more recently in DeBacker v. Brainard, 396 US 28 , 90 S Ct 163 , 24 L Ed 2d 148 (1969), that Duncan v. Louisiana would apply to future cases like the one at bar, I would prefer a decision today granting new trials in those relatively few cases in which guilty verdicts *583 were rendered by divided juries after May 20, 1968, the date of the decision in Duncan v. Louisiana, supra. The majority is inviting a wholesale jail delivery several years from now if the United States Supreme Court adheres to the policy considerations recently applied in Desist v. United States, 394 US 244, 249 , 89 S Ct 1030 , 22 L Ed 2d 248 (1969), and holds that Oregon has been bound by Duncan v. Louisiana since the date it was decided.

I dissent, therefore, from the part of the majority opinion upholding the ten-to-two verdict.

McAllister and O’Connell, JJ., join in this concurring and dissenting opinion.

The possibility that there might be a corrupt juror is sometimes tendered as an additional reason for eliminating the requirement of unanimity. See Kirkpatrick, Should Jury Verdicts Be Unanimous in Criminal Cases?, 47 Or L Rev 417, 421 (1968), for a well-reasoned statement of the case for unanimity.

Recent legislation in England provides for a ten-to-two verdict in criminal cases. Criminal Justice Act of 1967, § 13. According to H. Kalven & H. Zeisel, The American Jury: Notes for an English Controversy, 48 Chi B Rec 195 (1967); Introductory Note, the legislation was the result of a discovery that there had been jury bribery in a few widely publicized criminal cases. This change was also suggested in this country in ALI Code of Criminal Procedure, § 355 (1931). However, with regard to felony cases, it was rejected in all the American common-law jurisdictions except Oregon. See the equivocal comments to Section 1.1(d). .of the American Bar Association Standards Relating to Trial by Jury (Approved Draft 1968).