Amicus Curiae Brief — Evangelisto Ramos, Petitioner v. Louisiana

Supreme Court briefJun 18, 2019

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No. 18-5924

IN THE

Supreme Court of the United States

___________

EVANGELISTO RAMOS,

LOUISIANA,

___________

Petitioner,

Respondent.

On Writ of Certiorari

to the Court of Appeal of Louisiana, Fourth Circuit

___________

BRIEF OF LAW PROFESSORS AND SOCIAL

SCIENTISTS AS AMICI CURIAE IN SUPPORT

OF PETITIONER

___________

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

DAYNA J. ZOLLE**

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th St. NW

Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amici Curiae

June 18, 2019

* Counsel of Record

** Not admitted in

D.C.; supervised by

principals of the firm

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

iii

INTEREST OF AMICI CURIAE ..........................

SUMMARY OF ARGUMENT ..............................

ARGUMENT .........................................................

EMPIRICAL RESEARCH

DEMONSTRATES THAT

REQUIRING UNANIMOUS JURY

VERDICTS IN CRIMINAL CASES IS

ESSENTIAL TO THE RIGHT TO A

FAIR TRIAL GUARAN-TEED BY

THE SIXTH AMENDMENT ..................

A. More Thorough Deliberations .....

B. More Accurate Outcomes ..............

C. Increased Consideration of

Minority Viewpoints .....................

D. Greater Confidence in Verdicts

and the Justice System .................

E. Low Cost of Requiring

Unanimity ......................................

THE FRAMERS UNDERSTOOD

THAT JURY UNANIMITY IS

ESSENTIAL TO THE

FUNDAMENTAL RIGHT TO TRIAL

BY JURY IN CRIMINAL CASES ..........

III. EMPIRICAL RESEARCH, COUPLED

WITH THIS COURT’S RECENT

DECISIONS, UNDERMINES THE

APODACA PLURALITY’S

REASONING AND CONCLUSIONS ....

II.

(i)

TABLE OF CONTENTS – cont’d

Page

CONCLUSION .....................................................

APPENDIX ..........................................................

iii

TABLE OF AUTHORITIES

Cases

Page(s)

Apodaca v. Oregon,

406 U.S. 404 (1972) ................................ passim

Apprendi v. New Jersey,

530 U.S. 466 (2000) ............................ 17, 22, 25

Ballew v. Georgia,

435 U.S. 223 (1978) ................................

Batson v. Kentucky,

476 U.S. 79 (1986) ..................................

Blakely v. Washington,

542 U.S. 296 (2004) ....................... 10, 17, 22, 25

Crawford v. Washington,

541 U.S. 36 (2004) ..................................

Cunningham v. California,

549 U.S. 270 (2007) ................................ 23, 25

Duncan v. Louisiana,

391 U.S. 145 (1968) ................................

3, 23

J.E.B. v. Ala. ex rel. T.B.,

511 U.S. 127 (1994) ................................

9, 13

Johnson v. Louisiana,

406 U.S. 356 (1972) ................................

Johnson v. Louisiana,

406 U.S. 366 (1972) (Powell, J.,

concurring) ..................................... 4, 20, 21, 24

Malloy v. Hogan,

378 U.S. 1 (1964) ....................................

3, 24

TABLE OF AUTHORITIES – cont’d

Page(s)

McDonald v. City of Chicago,

561 U.S. 742 (2010) .............................. 3, 17, 24

Miller-El v. Dretke,

545 U.S. 213 (2005) ................................

Ohio ex rel. Eaton v. Price,

364 U.S. 263 (1960) ................................

Planned Parenthood of Se. Pa. v. Casey,

505 U.S. 833 (1992) ................................

Powers v. Ohio,

499 U.S. 400 (1991) ................................

Smith v. Texas,

311 U.S. 128 (1940) ................................

Snyder v. Louisiana,

552 U.S. 472 (2008) ................................

Sullivan v. Louisiana,

508 U.S. 275 (1993) ................................

Timbs v. Indiana,

139 S. Ct. 682 (2019) ............................. 3, 17, 24

United States v. Lopez,

581 F.2d 1338 (9th Cir. 1978) ................ 10, 13

Williams v. Florida,

399 U.S. 78 (1970) ..................................

4, 16

TABLE OF AUTHORITIES – cont’d

Page(s)

Constitutional Provisions and Legislative Materials

1 Annals of Cong. (1789) .........................

Fed. R. Crim. P. 31(a)..............................

La. Const. art. I, § 17(A) .........................

9, 13

Or. Const. art. I, § 11 ..............................

U.S. Const. amend. V ..............................

U.S. Const. amend. VI........................... 2, 5, 9, 15

U.S. Const. amend. VII ...........................

Books, Articles, and Other Authorities

7 The Adams Papers: Adams Family Correspondence, January 1786-February 1787

(Margaret A. Hogan et al. eds., 2005) ...

Akhil Reed Amar, America’s Constitution

(2005) ......................................................

Akhil Reed Amar, The Bill of Rights

(1998) ......................................................

1 Joel Prentiss Bishop, Commentaries on

the Law of Criminal Procedure § 897 (2d

ed. 1872) .................................................

2 William Blackstone, Commentaries ......

3 William Blackstone, Commentaries ......

2, 15

4 William Blackstone, Commentaries ......

TABLE OF AUTHORITIES – cont’d

Page(s)

Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest upon

the Legislative Power of the States of the

American Union (The Lawbook Exch.,

Ltd. 1999) (1868) ....................................

James H. Davis et al., The Decision Processes of 6- and 12-Person Mock Juries

Assigned Unanimous and Two-Thirds

Majority Rules, 32 J. Personality & Soc.

Psychol. 1 (1975) ....................................

Dennis J. Devine et al., Deliberation Quality: A Preliminary Examination in Criminal Juries, 4 J. Empirical Legal Stud.

273 (2007) ...............................................

Dennis J. Devine et al., Jury Decision Making: 45 Years of Empirical Research on

Deliberating Groups, 7 Psychol. Pub.

Pol’y & L. 622 (2001) ..............................

6, 12

Shari Seidman Diamond et al., Revisiting

the Unanimity Requirement: The Behavior of the Nonunanimous Civil Jury, 100

Nw. U. L. Rev. 201 (2006) .................. 6, 7, 9, 14

Thomas Ward Frampton, The Jim Crow

Jury, 71 Vand. L. Rev. 1593 (2018) .......

Valerie P. Hans, Deliberation and Dissent:

12 Angry Men Versus the Empirical Reality of Juries, 82 Chi.-Kent L. Rev. 579

(2007) ......................................................

vii

TABLE OF AUTHORITIES – cont’d

Page(s)

Valerie P. Hans, The Power of Twelve: The

Impact of Jury Size and Unanimity on

Civil Jury Decision Making, 4 Del. L.

Rev. 1 (2001) ...........................................

6, 12

Reid Hastie et al., Inside the Jury ........ 6, 7, 8, 11

Harry Kalven & Hans Zeisel, The American Jury (1966) .................................. 14, 20, 21

Letter from James Madison to Edmund

Pendleton (Sept. 23, 1789) .....................

Letter from John Adams to William Stephens Smith (Dec. 21, 1786) .................. 16, 22

Robert J. MacCoun & Tom R. Tyler, The

Basis of Citizens’ Perceptions of the Criminal Jury: Procedural Fairness, Accuracy,

and Efficiency, 12 Law & Hum. Behav.

333 (1988) ...............................................

Nancy S. Marder, Note, Gender Dynamics

and Jury Deliberations, 96 Yale L.J. 593

(1987) ......................................................

Nat’l Ctr. for State Cts., Are Hung Juries a

Problem? (2002), http://www.ncsc-jurystudies.org/What-We-Do/~/media/Microsites/Files/CJS/What%20We%20Do/Are%

20Hung%20Juries%20A%20Problem.ashx .................................................

John Norton Pomeroy, An Introduction to

Municipal Law § 135 (1864) ..................

viii

TABLE OF AUTHORITIES – cont’d

Page(s)

1 Joseph Story, Commentaries on the Constitution of the United States § 1779 (The

Lawbook Exch., Ltd. 2008) (4th ed.

1873) .......................................................

Kim Taylor-Thompson, Empty Votes in

Jury Deliberations, 113 Harv. L. Rev.

1261 (2000) ..................................... 8, 10, 11, 12

Joel Tiffany, A Treatise on Government and

Constitutional Law § 548 (1867) ...........

1 St. George Tucker, Blackstone’s Commentaries (1803) ............................................

5 St. George Tucker, Blackstone’s Commentaries (1803) ............................................

2 James Wilson, The Works of the Honourable James Wilson (1804) ......................

5 The Writings of James Madison (1904) .

INTEREST OF AMICI CURIAE1

Amici are law professors and social scientists

whose research and teaching address empirical and

constitutional questions about jury unanimity. They

have a strong interest in ensuring that this Court is

fully informed about the empirical evidence that

demonstrates that allowing non-unanimous verdicts

in criminal cases undermines the right to a jury trial,

as well as the Framers’ recognition that a unanimous

jury verdict is fundamental to the Sixth Amendment

jury-trial right. Accordingly, they also have an interest in ensuring that the Sixth Amendment right to a

unanimous jury verdict, which this Court has held is

guaranteed in federal criminal trials, is fully applicable to the States through the Fourteenth Amendment.

A full listing of amici appears in the Appendix.

SUMMARY OF ARGUMENT

This case raises a question central to the Sixth

Amendment’s guarantee of the right to a jury trial:

whether an individual may be convicted of a crime—

and, in Petitioner Evangelisto Ramos’s case, sentenced

to life imprisonment at hard labor, without the benefit

of parole, probation, or suspension of sentence—when

two of the twelve jurors who heard his case did not concur in the guilty verdict. The Louisiana Fourth Circuit

Court of Appeal answered this question in the

1 The parties have consented to the filing of this brief, and

their letters of consent have been filed with the Clerk. Under

Rule 37.6 of the Rules of this Court, amici state that no counsel

for a party authored this brief in whole or in part, and no counsel

or party made a monetary contribution intended to fund the

preparation or submission of this brief. No person other than

amici or their counsel made a monetary contribution to its preparation or submission.

affirmative, citing this Court’s splintered decision in

Apodaca v. Oregon, 406 U.S. 404 (1972), and Louisiana

precedent holding that “non-unanimous twelve-person

jury verdicts are constitutional,” J.A. 22. These precedents are inconsistent with the text, history, and values of the Sixth and Fourteenth Amendments and

should be overruled.

Modern empirical evidence underscores the wisdom of the Framers’ insight that unanimity is critical

to the jury right. Research has found that a unanimous jury requirement strengthens deliberations, reduces the frequency of factual error, fosters greater

consideration of minority viewpoints, and increases

confidence in verdicts and the criminal justice system.

See infra at 5-13. Thus, requiring unanimous verdicts

is essential to ensuring that criminal defendants receive the fair trial that the Sixth Amendment was designed to protect.

Indeed, at the time of the Founding, the jury was

viewed as a critical component of any system of ordered liberty. As Sir William Blackstone emphasized,

“the trial by jury ever has been, and I trust ever will

be, looked upon as the glory of the English law.” 3 William Blackstone, Commentaries *379. Sharing Blackstone’s view, the Framers saw the right to trial by jury

as sacrosanct and expressly mentioned juries no less

than three times in the Bill of Rights, including in the

Sixth Amendment, which provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury,” U.S.

Const. amend. VI.

When the Framers included this right to a “speedy

and public trial, by an impartial jury” in the Bill of

Rights, id., it was with the understanding that jury

unanimity is a fundamental component of that right,

an understanding this Court has reaffirmed with

respect to federal criminal trials as recently as last

Term: “[T]he Sixth Amendment requires jury unanimity in federal . . . criminal proceedings.” Timbs v. Indiana, 139 S. Ct. 682, 687 n.1 (2019) (citing Apodaca,

406 U.S. 404); see also McDonald v. City of Chicago,

561 U.S. 742, 766 n.14 (2010) (“[T]he Sixth Amendment right to trial by jury requires a unanimous jury

verdict in federal criminal trials . . . .” (emphasis

added)).

This Court has held that the Sixth Amendment

right to trial by jury in federal court is incorporated by

the Fourteenth Amendment, Duncan v. Louisiana, 391

U.S. 145, 156 (1968); see id. (“The deep commitment of

the Nation to the right of jury trial in serious criminal

cases as a defense against arbitrary law enforcement

qualifies for protection under the Due Process Clause

of the Fourteenth Amendment, and must therefore be

respected by the States.”), and 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,’” McDonald, 561 U.S. at

765 (quoting Malloy v. Hogan, 378 U.S. 1, 10 (1964));

see Timbs, 139 S. Ct. at 687 (“[I]f a Bill of Rights protection is incorporated, there is no daylight between

the federal and state conduct it prohibits or requires.”).

However, this Court in Apodaca v. Oregon held that

the Sixth Amendment right to a unanimous jury does

not bind the States.

The Court’s decision in that case was fractured,

with a majority unable to agree on a rationale for the

rule the Court adopted. A four-justice plurality concluded that the Sixth Amendment does not require

jury unanimity to convict at either the state or federal

level. 406 U.S. at 406. Although these justices recognized that “the requirement of unanimity arose during

the Middle Ages and had become an accepted feature

of the common-law jury by the 18th century,” id. at

407-08, they rejected what they called the “easy assumption . . . that if a given feature existed in a jury at

common law in 1789, then it was necessarily preserved

in the Constitution,” id. at 408-09 (quoting Williams v.

Florida, 399 U.S. 78, 92-93 (1970)). According to the

plurality, the meaning of the Sixth Amendment should

turn not on practices as they existed at common law,

but rather on “the function served by the jury in contemporary society.” Id. at 410. Engaging in that functional inquiry, the plurality concluded that unanimity

was not required because, in terms of the jury’s function of imposing the “‘commonsense judgment of a

group of laymen,’” id. (quoting Williams, 399 U.S. at

100), the justices “perceive[d] no difference between juries required to act unanimously and those permitted

to convict or acquit by votes of 10 to two or 11 to one,”

id. at 411.

Justice Powell supplied the fifth vote needed to resolve the case. Unlike the plurality, he concluded that

“the Sixth Amendment requires a unanimous jury verdict to convict in a federal criminal trial,” Johnson v.

Louisiana, 406 U.S. 366, 371 (1972) (Powell, J., concurring), but he agreed with the plurality that a jury

need not reach a unanimous verdict in a state criminal

trial. In his view, “all of the elements of jury trial

within the meaning of the Sixth Amendment are [not]

necessarily embodied in or incorporated into the Due

Process Clause of the Fourteenth Amendment.” Id. at

369.

Since the Court decided Apodaca, empirical research and legal developments have undermined the

reasoning of both the plurality’s opinion and Justice

Powell’s concurrence. Empirical studies have flatly

disproven the many assumptions on which both

opinions relied, and this Court’s subsequent decisions

have likewise rejected every other basis for the Court’s

conclusion. To be consistent with empirical evidence,

the views of the Framers, and subsequent case law,

this Court should overturn Apodaca and hold that

criminal defendants in state court, like criminal defendants in federal court, cannot be convicted except

by a unanimous verdict of their peers.

ARGUMENT

I. EMPIRICAL RESEARCH DEMONSTRATES

THAT REQUIRING UNANIMOUS JURY VERDICTS IN CRIMINAL CASES IS ESSENTIAL

TO THE RIGHT TO A FAIR TRIAL GUARANTEED BY THE SIXTH AMENDMENT.

Empirical studies have consistently borne out what

the Framers understood—that requiring unanimous

jury verdicts is fundamental to the guarantee that a

criminal defendant enjoys the “right to a speedy and

public trial, by an impartial jury,” U.S. Const. amend.

VI. These studies demonstrate that requiring unanimous verdicts strengthens jury deliberations, reducing

the incidence of factual errors that might lead to mistaken judgments. Moreover, a unanimity requirement

increases the attention paid to minority viewpoints

and ensures that all jurors are heard in the process of

reaching a verdict. In addition, studies confirm that

requiring unanimity bolsters people’s confidence in the

justice system, an important benefit of the jury-trial

right. Studies also indicate that the worry that unanimity will generate more hung juries is overstated, as

a unanimity requirement only marginally increases

the hung jury rate.

A. More Thorough Deliberations

Empirical research has repeatedly shown that requiring unanimity fosters more thorough and

considered jury deliberations. Dennis J. Devine et al.,

Jury Decision Making: 45 Years of Empirical Research

on Deliberating Groups, 7 Psychol. Pub. Pol’y & L. 622,

669 (2001) [hereinafter Jury Decision Making] (examining eleven empirical studies). Juries requiring unanimity tend to be “evidence-driven,” delaying their

first vote longer and discussing the evidence more

thoroughly than non-unanimous juries. See Reid Hastie et al., Inside the Jury 115, 164-65 (1983); Valerie P.

Hans, The Power of Twelve: The Impact of Jury Size

and Unanimity on Civil Jury Decision Making, 4 Del.

L. Rev. 1, 24-25 (2001) [hereinafter The Power of

Twelve].

When unanimity is not required, by contrast, juries

tend to end their deliberations soon after obtaining

enough votes to reach a verdict. Jury Decision Making, supra, at 669. This is to be expected because nonunanimous juries are typically more “verdict-driven.”

See Hastie et al., supra, at 165; The Power of Twelve,

supra, at 24-25. They are more likely to take a formal

ballot during the first ten minutes of deliberation and

to continue voting with some frequency until enough

jurors agree to reach a verdict. See Hastie et al., supra,

at 115, 164-65. Accordingly, juries tend to take less

time to deliberate, Jury Decision Making, supra, at

669, and are less thorough in their deliberations when

they are permitted to reach a non-unanimous verdict,

Hastie et al., supra, at 165.

A study of 50 real civil jury deliberations in Arizona

confirmed these findings.2 See Shari Seidman Diamond et al., Revisiting the Unanimity Requirement:

The Behavior of the Nonunanimous Civil Jury, 100

2 Researchers have found that civil and criminal juries behave

consistently in this regard. E.g., The Power of Twelve, supra, at

29.

Nw. U. L. Rev. 201 (2006). On post-trial questionnaires, members of juries that reached a three-fourths

majority verdict rated their deliberations as less thorough and their fellow jurors as less open-minded than

did members of juries that reached unanimous verdicts. Id. at 225. These more negative perceptions

from jurors whose deliberations did not end in unanimity held true for both dissenters from the majority’s decision and members of the majority. Id.

To be sure, not all majority-rule juries speed

through deliberations or give short shrift to minority

viewpoints; some of the juries in the Arizona study

pressed for unanimity even though it was not required.

Id. at 212. But many did not. See id. at 212-13. The

majority of juries in the Arizona study pointed out

early in deliberations that they needed only a majority

of votes, id. at 214, and some jurors used the quorum

requirement explicitly to suppress debate, id. at 21516. In one particularly striking case, a member of a

majority-rule jury expressly discounted the views of a

fellow juror, stating, “All right, no offense, but we are

going to ignore you.” Id. at 216.

Experimental studies have also found that juries

deliberate longer and more thoroughly when unanimity is required. For example, in one study, participants

who had appeared for jury duty were shown a threehour reenactment of an actual homicide trial. Hastie

et al., supra, at 45-47. The jurors then deliberated under a unanimous (twelve out of twelve), five-sixths (ten

out of twelve), or two-thirds (eight out of twelve) decision rule. Id. at 50. The juries operating under a

unanimous decision rule deliberated longer and discussed key facts to a greater extent than those not required to reach a unanimous verdict. See id. at 76-77,

97. Consistent with these measures, jurors operating

under a unanimous decision rule rated their

deliberations as more thorough than did jurors operating under non-unanimous decision rules. Id. at 77.

Other experimental studies have produced similar

results. For example, another study involving mock

criminal juries found that twelve-person juries

charged with reaching a unanimous verdict spent significantly more time deliberating than did their counterparts who were permitted to reach a two-thirds majority. James H. Davis et al., The Decision Processes of

6- and 12-Person Mock Juries Assigned Unanimous

and Two-Thirds Majority Rules, 32 J. Personality &

Soc. Psychol. 1, 9, 12 (1975). Moreover, most juries required to reach a two-thirds majority stopped deliberating either immediately or within ten minutes after

obtaining the requisite number of votes. Id. at 12.

Thus, deliberations are likely to be significantly more

thorough when unanimity is required.

B. More Accurate Outcomes

Unanimity also reduces the likelihood of error. One

study found that juries required to reach a unanimous

verdict in a simulated homicide trial were less likely

to reach the legally inaccurate verdict of first-degree

murder than those operating under a non-unanimous

decision rule. Hastie et al., supra, at 62, 81. They were

also more likely to correct mistaken assertions. Id. at

88-89. This makes sense because studies have found

a “strong indication that the quality of the deliberation

process is in fact related to criminal jury trial outcomes.” Dennis J. Devine et al., Deliberation Quality:

A Preliminary Examination in Criminal Juries, 4 J.

Empirical Legal Stud. 273, 300 (2007); see also Kim

Taylor-Thompson, Empty Votes in Jury Deliberations,

113 Harv. L. Rev. 1261, 1272 (2000) (collecting empirical studies); id. (“A shift to majority rule appears to

alter both the quality of the deliberative process and

the accuracy of the jury’s judgment.”).

A unanimity requirement, therefore, fosters more

robust jury deliberations and produces more accurate

outcomes, effectuating the Sixth Amendment requirement that no one be convicted of a crime unless twelve

impartial jurors are convinced of his or her guilt beyond a reasonable doubt.3 Cf. Diamond, supra, at 230

(“The image of eccentric holdout jurors outvoted by

sensible majorities receives no support. Indeed, the

judge agreed with the verdict favored by the holdouts

in a number of these cases.”). Unanimity is thus part

and parcel of the Sixth Amendment right to trial by

jury.

C. Increased Consideration of Minority Viewpoints

As this Court has recognized, “[i]t is part of the established tradition in the use of juries as instruments

of public justice that the jury be a body truly representative of the community.” Ballew v. Georgia, 435

U.S. 223, 237 (1978) (quoting Smith v. Texas, 311 U.S.

128, 130 (1940)). To that end, this Court has taken

great strides through the years to ensure that prospective jurors are not excluded from the jury room on the

basis of race or sex. See, e.g., Snyder v. Louisiana, 552

U.S. 472 (2008); Miller-El v. Dretke, 545 U.S. 213

(2005); J.E.B. v. Ala. ex rel. T.B., 511 U.S. 127 (1994).

Yet allowing for non-unanimous jury verdicts may undermine these efforts and effectively deprive a criminal defendant of the fundamental right to “an impartial jury,” U.S. Const. amend. VI.

Requiring unanimity ensures that jurors who share

a majority viewpoint must still consider and respond

3 Perhaps this is why every State but one, Or. Const. art. I,

§ 11, now requires unanimous jury verdicts in felony cases and

why even Louisiana has long required unanimous jury verdicts in

capital cases, La. Const. art. I, § 17(A).

to the views of jurors in the minority. See Valerie P.

Hans, Deliberation and Dissent: 12 Angry Men Versus

the Empirical Reality of Juries, 82 Chi.-Kent L. Rev.

579, 587 (2007) (“In juries required to reach unanimity, jurors understandably pay more attention to those

who hold minority views; furthermore, those attempting to argue a minority position participate more in the

discussion and have more influence.”). This is important because, as the Founders recognized, trials are

“not just about the rights of the defendant but also

about the rights of the community. The people themselves had a right to serve on the jury—to govern

through the jury.” Akhil Reed Amar, America’s Constitution 237 (2005). In short, serving on juries, and

having one’s voice heard, is a fundamental act of citizenship and suffrage, cf. Blakely v. Washington, 542

U.S. 296, 306 (2004) (“Just as suffrage ensures the people’s ultimate control in the legislative and executive

branches, jury trial is meant to ensure their ultimate

control in the judiciary.”), and a requirement of jury

unanimity helps effectuate this aspect of the jury right

by ensuring that the voices of all jurors are heard and

considered. See United States v. Lopez, 581 F.2d 1338,

1341 (9th Cir. 1978) (Kennedy, J.) (“A rule which insists on unanimity furthers the deliberative process by

requiring the minority view to be examined and, if possible, accepted or rejected by the entire jury.”).

Absent a unanimity requirement, juries may disregard and effectively silence the views of members of

historically excluded groups—namely, racial and ethnic minorities and women. Thus, “[i]f—as is often

true—the views of jurors of color and female jurors diverge from the mainstream, nonunanimous decisionmaking rules [in criminal cases] can operate to

eliminate the voice of difference on the jury.” TaylorThompson, supra, at 1264. The marginalization of

members of racial minority groups in particular—even

if unintended—can have significant consequences, as

racial stereotypes and biases continue to influence jurors’ judgments and their perceptions of a defendant’s

honesty and guilt. See id. at 1290-95 (collecting studies).

Indeed, a recent study of 199 serious felony guilty

verdicts by non-unanimous juries in Louisiana confirmed that Louisiana’s non-unanimity rule effectively

suppresses the views of racial minorities. Thomas

Ward Frampton, The Jim Crow Jury, 71 Vand. L. Rev.

1593, 1599 (2018). The study demonstrated that African American jurors are disproportionately in the minority urging acquittal. Id. at 1599. Thus, “black jurors are more likely than white jurors to cast ‘empty

votes’ (i.e., dissenting votes that are overridden by supermajority verdicts).” Id. at 1622. Moreover, the

study found that African American defendants are

more likely than white defendants to be convicted by

non-unanimous verdicts. Id. This result is perhaps

unsurprising given the racially motivated origins of

Louisiana’s rule allowing for non-unanimous verdicts.

See Pet’r Br. 2-5. Accordingly, the author of the Louisiana study concluded that “the absence of a unanimity requirement continues to systematically weaken

the voice of nonwhite jurors in contemporary criminal

adjudication, just as it was originally intended.”

Frampton, supra, at 1599.

Further, allowing non-unanimous jury verdicts

may diminish or eliminate the influence of women on

juries. Research has shown that women tend to speak

less frequently than men in jury deliberations. See

Taylor-Thompson, supra, at 1299; Nancy S. Marder,

Note, Gender Dynamics and Jury Deliberations, 96

Yale L.J. 593, 594-98 (1987); Hastie et al., supra, at

141-42 (observing that male mock jurors made 40%

more comments than their female counterparts). Men

also tend to interrupt women in deliberations or ignore

their comments, further reducing women’s participation. Taylor-Thompson, supra, at 1299 (collecting

studies). In addition, women tend to take longer than

men to enter these discussions. Id. Thus, under a majority-rule system, where deliberations typically conclude more quickly, a jury may reach a verdict before

women begin to meaningfully contribute. Id. at 1300.

“Indeed, majority rule may make it less likely that

women’s voices will ever be heard.” Id.

But it is not only women and minorities whose

views are more likely to be ignored when the jury need

not reach unanimity. Any person or group who expresses a minority position may find their views ignored when their votes are not needed to reach a verdict.

D. Greater Confidence in Verdicts and the Justice

System

Empirical studies have also established that requiring unanimity increases confidence in jury verdicts, thereby bolstering trust in the justice system itself. Several studies have shown that jurors who are

required to reach unanimity report greater satisfaction and confidence in their verdicts. See, e.g., Jury

Decision Making, supra, at 669; The Power of Twelve,

supra, at 26 & n.89. Individuals interviewed for one

empirical study believed that twelve-person unanimous juries were “most accurate (63%), most thorough

(62%), most likely to represent minorities (67%), most

likely to listen to holdouts (36%), most likely to minimize bias (41%), and fairest (59%),” as compared with

twelve-person majority, six-person unanimous, and

six-person majority juries. Robert J. MacCoun & Tom

R. Tyler, The Basis of Citizens’ Perceptions of the

Criminal Jury: Procedural Fairness, Accuracy, and Efficiency, 12 Law & Hum. Behav. 333, 337 (1988).

A unanimity requirement, therefore, shapes how

jurors perceive not only the verdicts they render and

their experience with jury service but also the criminal

justice system itself. Permitting non-unanimous jury

verdicts, and thus allowing members of the majority to

dismiss minority viewpoints, reduces trust in and respect for the justice system as a whole. Cf. J.E.B., 511

U.S. at 140 (“Discrimination in jury selection . . .

causes harms to the litigants, the community, and the

individual jurors who are wrongfully excluded from

participation in the judicial process.”); Powers v. Ohio,

499 U.S. 400, 406 (1991) (“Batson [v. Kentucky, 476

U.S. 79 (1986)] recognized that a prosecutor’s discriminatory use of peremptory challenges harms the excluded jurors and the community at large.”). “The requirement of jury unanimity thus has a precise effect

on the fact-finding process, one which gives particular

significance and conclusiveness to the jury’s verdict.

Both the defendant and society can place special confidence in a unanimous verdict . . . .” Lopez, 581 F.2d

at 1341 (Kennedy, J.).

E. Low Cost of Requiring Unanimity

Finally, the cost of requiring jury unanimity is relatively small and is outweighed by the significant benefits of the requirement, which 49 States have now implemented in felony cases.4 While unanimous juries

have been associated with somewhat higher hung jury

4 In 2018, Louisiana amended its constitution to require

unanimous jury verdicts in felony cases in which the punishment

is necessarily confinement at hard labor. La. Const. art. I,

§ 17(A). This amendment, however, was prospective and thus did

not affect this case. See id. (requiring unanimous jury verdicts

only for certain offenses committed on or after January 1, 2019).

rates than majority juries, see Diamond, supra, at 207,

the difference is modest because final votes of 10-2 or

11-1 are rare. A 1966 study found that jurisdictions

requiring unanimity had a 5.6% hung jury rate, while

the hung jury rate in jurisdictions allowing majority

verdicts was 3.1%. Nat’l Ctr. for State Cts., Are Hung

Juries a Problem? 13 (2002), http://www.ncsc-jurystudies.org/What-We-Do/~/media/Microsites/Files/CJS/

What%20We%20Do/Are%20Hung%20Juries%20A%

20Problem.ashx (citing Harry Kalven & Hans Zeisel,

The American Jury 461 (1966)). A more recent study

of juries in state criminal trials from 1996 through

1998 similarly found that the average hung jury rate

for 30 large urban jurisdictions (all of which required

unanimity) was 6.2%. Id. at 25. Meanwhile, the same

study found that the federal hung jury rate in criminal

trials from 1980 to 1997 (all of which also required

unanimity, see Fed. R. Crim. P. 31(a)) ranged from

2.1% to 3%. Nat’l Ctr. for State Cts., supra, at 22. This

study noted that the primary cause of hung juries in

state cases was reportedly weak evidence (accounting

for 63% of hung juries). Id. at 76. Members of these

hung juries did not identify dysfunctional deliberations as a primary cause of their jury’s inability to

reach a verdict, although deliberation quality appears

to have played a secondary role in about 30% of hung

juries. Id.

Thus, unanimity requirements have been associated with an increase in hung jury rates of only a few

percentage points. Moreover, one cannot reasonably

contend that a unanimity requirement would prove

unworkable in state courts, as 49 out of 50 States—

including Louisiana itself—currently require unanimous jury verdicts in felony cases. Accordingly, even

if a unanimity requirement results in a modest

increase in hung juries, the benefits of such a requirement well outweigh that cost.

II. THE FRAMERS UNDERSTOOD THAT JURY

UNANIMITY IS ESSENTIAL TO THE FUNDAMENTAL RIGHT TO TRIAL BY JURY IN

CRIMINAL CASES.

Even without the benefit of this empirical evidence,

the Framers regarded unanimity as crucial to the

Sixth Amendment right to trial by jury—a right that

they deemed sacrosanct. Featured expressly in three

of the first ten amendments to the Constitution, the

jury is “a paradigmatic image underlying the original

Bill of Rights.” Akhil Reed Amar, The Bill of Rights 96

(1998); see, e.g., U.S. Const. amends. V, VI, VII. To the

Founders, the “jury summed up—indeed embodied—

the ideals of populism, federalism, and civic virtue that

were the essence of the original Bill of Rights.” Amar,

The Bill of Rights, supra, at 97.

The Founding generation’s focus on the jury as a

central feature of a system of ordered liberty was

strongly rooted in English common law. As Sir William Blackstone emphasized, “the trial by jury ever

has been, and I trust ever will be, looked upon as the

glory of the English law.” 3 William Blackstone, Commentaries *379; see 4 id. at *343-44 (calling the jury a

“sacred bulwark” of liberty). Blackstone’s understanding was that trial by jury “is the most transcendent

privilege which any subject can enjoy, or wish for, that

he cannot be affected either in his property, his liberty,

or his person, but by the unanimous consent of twelve

of his neighbours and equals.” 2 id. at *379 (emphasis

added). Blackstone later explained that it was important that a trial by jury include “the unanimous

suffrage of twelve of his equals and neighbours, indifferently chosen, and superior to all suspicion.” 4 id. at

*343 (emphasis added).

The Founders shared this view that jury unanimity

was implicit in the fundamental right to trial by jury

in criminal cases. In 1786, several years prior to ratification of the Constitution and the Sixth Amendment,

John Adams reflected that “it is the unanimity of the

jury that preserves the rights of mankind.” Letter

from John Adams to William Stephens Smith (Dec. 21,

1786), in 7 The Adams Papers: Adams Family Correspondence, January 1786-February 1787 (Margaret A.

Hogan et al. eds., 2005) (emphasis added). In fact, the

original draft of the Sixth Amendment, which James

Madison introduced in the House of Representatives,

expressly provided for trial “by an impartial jury of

freeholders of the vicinage, with the requisite of unanimity for conviction, of the right of challenge, and

other accustomed requisites . . . .” Apodaca, 406 U.S.

at 409 (emphasis added) (quoting 1 Annals of Cong.

435 (1789)).5

The absence of this language in the final version of the

Amendment in no way indicates that the Framers rejected the

unanimity requirement. After Madison’s original draft passed

the House, members of the Senate objected to the draft’s “vicinage” language. See Apodaca, 406 U.S. at 409; Letter from James

Madison to Edmund Pendleton (Sept. 23, 1789), in 5 The Writings

of James Madison 424 (1904) (recounting that the Senate was “inflexible in opposing a definition of the locality of Juries” and that

it regarded “vicinage” as “either too vague or too strict a term”

(emphasis added)). A conference committee also opposed an

equally vague alternative that would have defined juries as

simply possessing “the accustomed requisites.” See Apodaca, 406

U.S. at 409 (quoting 1 Annals of Cong. 435 (1789)). The final version thus omitted both of these disputed terms, a result that this

Court has “conceded[]” is “open to the explanation that the ‘accustomed requisites’ were thought to be already included in the concept of a ‘jury.’” Williams, 399 U.S. at 97; accord Apodaca, 406

U.S. at 409-10. Although the Apodaca plurality suggested that

the “more plausible” interpretation “is that the deletion was intended to have some substantive effect,” 406 U.S. at 410, the

Later, as the States debated and ratified the Sixth

Amendment, Justice James Wilson expressed in his

1790-91 Lectures on Law that “[t]o the conviction of a

crime, the undoubting and the unanimous sentiment

of the twelve jurors is of indispensable necessity.” 2

James Wilson, The Works of the Honourable James

Wilson 350 (1804) (emphasis added). In 1803, St.

George Tucker, author of the 1803 edition of Blackstone’s Commentaries stated his view that the Sixth

Amendment secured “the trial by jury” as described in

Blackstone’s text, 5 St. George Tucker, Blackstone’s

Commentaries 348-49 n.2 (1803), later commenting

that “without [the jurors’] unanimous verdict, or consent, no person can be condemned of any crime,” 1 id.

at App. 34 (emphasis added).

State practice at the time the Sixth Amendment

was adopted also supports the view that unanimity

had become an essential element of trial by jury for

criminal trials in the United States. Even the Apodaca

plurality conceded that “unanimity became the accepted rule during the 18th century, as Americans became more familiar with the details of English common law and adopted those details in their own colonial legal systems.” 406 U.S. at 408 n.3.

The view that jury unanimity was an essential

component of the right to trial by jury did not change

between the ratification of the Sixth Amendment and

the ratification of the Fourteenth Amendment. In

historical context suggests otherwise, see infra at 15-16, and this

Court necessarily recognized as much in holding that “the Sixth

Amendment right to trial by jury requires a unanimous jury verdict in federal criminal trials,” McDonald, 561 U.S. at 766 n.14

(citing Apodaca, 406 U.S. 404); see, e.g., Timbs, 139 S. Ct. at 687

n.1 (“the Sixth Amendment requires jury unanimity in federal . . .

criminal proceedings”); Blakely, 542 U.S. at 301; Apprendi v. New

Jersey, 530 U.S. 466, 477 (2000).

1833, Justice Joseph Story embraced the unanimity

requirement in his Commentaries on the Constitution,

explaining that “[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.” 1 Joseph Story, Commentaries on the Constitution of the

United States § 1779, at 559 n.2 (The Lawbook Exch.,

Ltd. 2008) (4th ed. 1873).

And in 1868, Thomas Cooley stated in an influential treatise that the “common-law incidents to a jury

trial” that were “preserved by the constitution” included the requirement that “[t]he jury must unanimously concur in the verdict.” Thomas M. Cooley, A

Treatise on the Constitutional Limitations Which Rest

upon the Legislative Power of the States of the American Union 319-20 (The Lawbook Exch., Ltd. 1999)

(1868). Other prominent legal commentators of the

time accepted this view as well. See 1 Joel Prentiss

Bishop, Commentaries on the Law of Criminal Procedure § 897, at 546 (2d ed. 1872) (“[I]n a case in which

the constitution guarantees a jury trial,” a statute allowing “a verdict upon anything short of the unanimous consent of the twelve jurors” is “void.”); John

Norton Pomeroy, An Introduction to Municipal Law

§ 135, at 78 (1864) (“[T]he jury [must] be unanimous

in rendering their verdict. . . . The principle once

adopted has continued as an essential part of the jury

trial . . . .”); Joel Tiffany, A Treatise on Government and

Constitutional Law § 548, at 367 (1867) (“And a trial

by jury is understood to mean—generally—a trial by a

jury of twelve men, impartially selected, and who must

unanimously concur in the guilt of the accused before

a legal conviction can be had.”).

Thus, the Framers recognized what the Apodaca

plurality did not—that a requirement of jury unanimity is critical to ensuring the fair jury deliberations

that the Sixth Amendment requires. As demonstrated

above, more recent empirical research has confirmed

the Framers’ intuitions and makes clear why it is so

important that this Sixth Amendment right be fully

enforced.

III. EMPIRICAL RESEARCH, COUPLED WITH

THIS COURT’S RECENT DECISIONS, UNDERMINES THE APODACA PLURALITY’S

REASONING AND CONCLUSIONS.

In holding that the Constitution does not require

States to guarantee unanimous jury verdicts in criminal cases, the Apodaca plurality embraced erroneous

assumptions about juries and relied heavily on three

other premises that this Court has since rejected:

(1) that the proper inquiry for determining the Sixth

Amendment’s protections is functional rather than

historical, (2) that the Sixth Amendment does not require proof beyond a reasonable doubt, and (3) that the

Sixth Amendment does not apply to the States in the

same way it applies to the federal government, a position unsupported by the historical record and this

Court’s precedent.

Accordingly, Apodaca cannot

stand. See Planned Parenthood of Se. Pa. v. Casey, 505

U.S. 833, 860 (1992) (plurality) (considering whether

change in precedent’s “factual underpinning ha[d] left

its central holding obsolete”); id. at 855 (prior precedent must give way when “related principles of law

have so far developed as to have left the old rule no

more than a remnant of abandoned doctrine”).

To begin, the fractured decision in Apodaca rested

on faulty assumptions. As limited research on the subject existed at the time, the justices cited only one empirical study in their decisions in Apodaca and its

companion case, Johnson v. Louisiana, 406 U.S. 356

(1972): a 1966 study by Harry Kalven, Jr. and Hans

Zeisel. See Apodaca, 406 U.S. at 411 n.5 (citing Kalven

& Zeisel, supra). The plurality cited this study to support the proposition that “[r]equiring unanimity would

obviously produce hung juries in some situations

where nonunanimous juries will convict or acquit.” Id.

at 411; see id. at 411 n.5 (“The most complete statistical study of jury behavior has come to the conclusion

that when juries are required to be unanimous, ‘the

probability that an acquittal minority will hang the

jury is about as great as that a guilty minority will

hang it.’” (quoting Kalven & Zeisel, supra, at 461)).

Likewise, in his concurrence, Justice Powell cited the

same study’s findings that the difference between the

rate of hung juries in cases requiring unanimity and

in those allowing majority verdicts was only a few percentage points. Johnson, 406 U.S. at 374 n.12 (citing

Kalven & Zeisel, supra).

With only this one study in hand, the Apodaca plurality and Justice Powell relied heavily on wishful assumptions that have since been disproven by empirical

evidence. As explained above, the Apodaca plurality

stated that it “perceive[d] no difference” in a jury’s deliberative and decisionmaking function “between juries required to act unanimously and those permitted

to convict or acquit by votes of 10 to two or 11 to one.”

406 U.S. at 411. The plurality presumed that, “in either case,” the defendant “is equally well served.” Id.

It cited no support for this proposition. Similarly, the

plurality rejected the notion that a majority-verdict

rule, unlike a unanimous-verdict rule, would allow juries to disregard the views of jurors who belong to minority groups, declaring—again, without citing any

support—that members of minority groups “will be

present during all deliberations, and their views will

be heard.” Id. at 413.

In the same vein, Justice Powell relied on the Kalven and Zeisel study to conclude that “[t]he available

empirical research indicates that the jury-trial protection is not substantially affected by less than unanimous verdict requirements.” Johnson, 406 U.S. at 374

n.12 (citing Kalven & Zeisel, supra); id. at 379 (stating

that he found “nothing . . . to justify the apprehension

that juries not bound by the unanimity rule will be

more likely to ignore their historic responsibility”).

Justice Powell also noted the existence of other safeguards of the jury-trial right, such as the availability

of peremptory challenges and the ability to change

venues, and concluded that “[i]n light of such protections it is unlikely that the Oregon ‘ten-of-twelve’ rule

will account for an increase in the number of cases on

which injustice will be occasioned by a biased or prejudiced jury.” Id. at 380.

Similarly, this Court in Johnson stated that it saw

“no grounds for believing that majority jurors, aware

of their responsibility and power over the liberty of the

defendant, would simply refuse to listen to arguments

presented to them in favor of acquittal, terminate discussion, and render a verdict.” Johnson, 406 U.S. 356,

361 (opinion of the Court). It also pointed to a lack of

“evidence that majority jurors simply ignore the reasonable doubts of their colleagues or otherwise act irresponsibly in casting their votes in favor of conviction.” Id. at 362.

As described above, however, empirical evidence

unavailable to the Court at the time of Apodaca and

Johnson belies each of these assumptions. In particular, the evidence sharply refutes the notion that no

functional difference exists between juries required to

reach unanimity and those permitted to reach

majority verdicts, as well as the presumption that

members of the minority “will be heard” simply by virtue of being in the room, Apodaca, 406 U.S. at 413. In

short, empirical evidence confirms the Framers’ fundamental insight that “it is the unanimity of the jury

that preserves the rights of mankind,” Letter from

John Adams, supra (emphasis added), and ensures a

fair trial by jury. For purposes of evaluating the Sixth

Amendment right to a jury trial, speculation about

how juries might behave must be replaced with accurate understanding about how jurors do behave, as informed by actual jury behavior.

The Apodaca plurality also relied heavily on three

premises that this Court has since rejected. First, the

Apodaca plurality expressly rejected the relevance of

the common law to understanding the meaning of the

Sixth Amendment and instead considered the “function served by the jury in contemporary society.” 406

U.S. at 410. But in Apprendi v. New Jersey, 530 U.S.

466 (2000), this Court recognized that “the historical

foundation for our recognition of [the rights in the

Sixth Amendment] extends down centuries into common law,” id. at 477, and it is thus appropriate to look

to the common law as it existed at the Framing to determine how the Sixth Amendment’s guarantee should

apply in the context of sentencing, see id. at 478-83; see

also, e.g., Blakely, 542 U.S. at 313 (what matters is not

“whether or to what degree trial by jury impairs the

efficiency or fairness of criminal justice,” but rather

“the Framers’ paradigm for criminal justice”); Crawford v. Washington, 541 U.S. 36, 42-56 (2004) (looking

to history to determine the meaning of the Confrontation Clause).

In other words, under this Court’s precedents, the

outcome of this case should not turn on whether empirical evidence demonstrates that a unanimity

requirement is functionally critical to the Sixth

Amendment jury-trial right (although empirical evidence plainly establishes that it is). Instead, the relevant inquiry is whether the jury-trial right at common

law required unanimity, and it did. Empirical evidence merely underscores the wisdom of the common

law unanimity requirement and explains why the

Framers were justified in believing that unanimity

was essential to the Sixth Amendment right to trial by

jury. In light of this Court’s more recent decisions

making clear the importance of the relevant common

law history, the Apodaca plurality’s disregard for this

history cannot stand.

Second, the Apodaca plurality rejected the argument that jury unanimity is necessary to safeguard

the requirement of proof beyond a reasonable doubt,

concluding that the latter is not required by the Sixth

Amendment at all. 406 U.S. at 412. This Court, however, has since rejected that conclusion. See Sullivan

v. Louisiana, 508 U.S. 275, 278 (1993) (“[T]he jury verdict required by the Sixth Amendment is a jury verdict

of guilty beyond a reasonable doubt.”); Cunningham v.

California, 549 U.S. 270, 281 (2007) (“This Court has

repeatedly held that, under the Sixth Amendment,

any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and

established beyond a reasonable doubt . . . .”).

Third, and finally, the rationale of Justice Powell’s

concurrence—that the Sixth Amendment applies differently to the States than the federal government—

also conflicts with this Court’s decisions both preceding and following Apodaca. Indeed, even at the time

Apodaca was decided, Justice Powell readily acknowledged that his view on incorporation conflicted with

this Court’s decision in Duncan v. Louisiana, 391 U.S.

145, which had just four years earlier fully

incorporated the Sixth Amendment through the Fourteenth Amendment’s Due Process Clause. Johnson,

406 U.S. at 375 (Powell, J., concurring).

The incorporation analysis of Duncan has stood the

test of time, as this Court has repeatedly recognized

that the critical rights and liberties of the Bill of Rights

must be protected against state infringement just as

robustly as they are protected against federal encroachment. See, e.g., Malloy, 378 U.S. at 10 (holding

that the protections of the Bill of Rights “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”). And the Court has abandoned Justice Powell’s

“notion that the Fourteenth Amendment applies to the

States only a ‘watered-down, subjective version of the

individual guarantees of the Bill of Rights,” id. at 1011 (quoting Ohio ex rel. Eaton v. Price, 364 U.S. 263,

275 (1960)), explicitly rejecting such an argument in

McDonald, 561 U.S. at 765. Indeed, just last Term,

this Court emphasized that “if a Bill of Rights protection is incorporated, there is no daylight between the

federal and state conduct it prohibits or requires.”

Timbs, 139 S. Ct. at 687.

Thus, as this Court explained in McDonald, “it

would be ‘incongruous’ to apply different standards

‘depending on whether the claim was asserted in a

state or federal court.’” 561 U.S. at 765 (quoting Malloy, 378 U.S. at 10-11). Indeed, the Court acknowledged in both Timbs and McDonald that Apodaca is

the “one exception to this general rule,” while making

clear that Apodaca was “not an endorsement of the

two-track approach to incorporation.” Id. at 766 n.14

(emphasis added). Rather, it was simply “the result of

an unusual division among the Justices.” Id.; accord

Timbs, 139 S. Ct. at 687 n.1.

The Court’s modern Sixth Amendment cases also

reflect this approach to incorporation, uniformly applying the same rules in federal and state courts rather than considering whether it is appropriate to do

so on a rule-by-rule basis. See, e.g., Apprendi, 530 U.S.

466; Blakely, 542 U.S. 296; Cunningham, 549 U.S.

270. Justice Powell’s controlling approach in Apodaca

conflicts with these more recent decisions.

In sum, the central premises underlying the Apodaca plurality decision have all been undermined by

more recent factual and legal developments, including

the emergence of empirical evidence that confirms the

Framers’ fundamental insight that unanimity is essential to the Sixth Amendment right to trial by jury.

CONCLUSION

For the foregoing reasons, the judgment of the

Louisiana Court of Appeal should be reversed.

Respectfully submitted,

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

DAYNA J. ZOLLE**

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th St. NW

Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amici Curiae

June 18, 2019

* Counsel of Record

** Not admitted in

D.C.; supervised by

principals of the firm

APPENDIX:

LIST OF AMICI

Shari Seidman Diamond, Howard J.

Trienens Professor of Law and Professor

of Psychology, Northwestern University,

Pritzker School of Law; Research

Professor, American Bar Foundation

Phoebe C. Ellsworth, Frank Murphy

Distinguished University Professor of

Law and Psychology Emerita, University

of Michigan Law School

Valerie P. Hans, Charles F. Rechlin

Professor of Law, Cornell Law School

Reid Hastie, Ralph and Dorothy Keller

Distinguished Service Professor of

Behavioral Science, Chicago Booth

School of Business, University of Chicago

Richard O. Lempert, Eric Stein

Distinguished University Professor of

Law & Sociology Emeritus, University of

Michigan Law school

Nancy S. Marder, Professor of Law,

Director of the Justice John Paul Stevens

Jury Center, Chicago-Kent College of

Law

Steven D Penrod, Distinguished Professor

of Psychology, John Jay College of

Criminal Justice and Graduate Center,

The City University of New York

LIST OF AMICI – cont’d

Mary Rose, Associate Professor of

Sociology, The University of Texas at

Austin

Michael Saks, Regents’ Professor, Sandra

Day O’Connor College of Law, Arizona

State University

Samuel R. Sommers, Professor of

Psychology, Tufts University

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.