Amicus Curiae Brief — Evangelisto Ramos, Petitioner v. Louisiana

No. 18-5924

IN THE

Supreme Court of the United States

EVANGELISTO RAMOS,

Petitioner,

v.

STATE OF LOUISIANA,

Respondent.

ON WRIT OF CERTIORARI TO THE

COURT OF APPEAL OF LOUISIANA, FOURTH CIRCUIT

BRIEF FOR STATES OF NEW YORK,

CALIFORNIA, ILLINOIS, MICHIGAN,

MINNESOTA, NEVADA, VERMONT, AND VIRGINIA,

AND THE DISTRICT OF COLUMBIA

AS AMICI CURIAE IN SUPPORT OF PETITIONER

LETITIA JAMES

Attorney General

State of New York

BARBARA D. UNDERWOOD*

Solicitor General

STEVEN C. WU

Deputy Solicitor General

ESTER MURDUKHAYEVA

Assistant Solicitor General

28 Liberty Street

New York, New York 10005

(212) 416-8020

barbara.underwood@ag.ny.gov

*Counsel of Record

(Counsel listing continues on signature pages.)

i

QUESTION PRESENTED

The Sixth Amendment guarantees a criminal

defendant “the right to a speedy and public trial, by an

impartial jury of the State and district wherein the

crime shall have been committed.” In Apodaca v.

Oregon, 406 U.S. 404 (1972), an unusual alignment of

votes led a single justice’s concurrence to become the

controlling opinion. That concurrence, joined by no

other justice, concluded that the Sixth Amendment

requires a jury’s guilty verdict to be unanimous in a

federal criminal trial, but that this unanimity

requirement was not incorporated against the States

by the Fourteenth Amendment.

Amici States address the following question:

Whether this Court should revisit the rule

established by the Apodaca concurrence and hold that

the Fourteenth Amendment incorporates against the

States the Sixth Amendment’s requirement that a

jury verdict be unanimous in order to convict.

ii

TABLE OF CONTENTS

Page

INTEREST OF THE AMICI STATES ........................ 1

STATEMENT .............................................................. 2

A. The States’ Long Experience with the

Unanimity Requirement ................................ 2

B. The States’ Efforts to Improve Their Jury

Systems........................................................... 7

SUMMARY OF ARGUMENT ..................................... 9

ARGUMENT .............................................................. 11

I. The Unanimity Requirement Promotes a

Fair and Impartial Criminal Justice System. .. 11

A. The Unanimity Requirement Improves the

Quality of Jury Deliberations and Verdicts. 13

1. The unanimity requirement results in

longer and more careful deliberations. . 13

2. The unanimity requirement ensures

that juries consider the opinions,

experiences, and perspectives of all

community members. ............................. 17

3. The unanimity requirement bolsters

public confidence in the fairness and

reliability of the jury system. ................ 20

B. The Substantial Benefits of the Unanimity

Requirement Outweigh the Costs

Attributable to Hung Juries. ....................... 22

II. Stare Decisis Does Not Compel Adherence to

Justice Powell’s Concurrence in Apodaca. ....... 25

CONCLUSION .......................................................... 29

iii

TABLE OF AUTHORITIES

Cases

Page(s)

Allen v. United States, 164 U.S. 492 (1896).............. 11

American Publ’g Co. v. Fisher, 166 U.S. 464 (1897) ..... 3

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

Apprendi v. New Jersey, 530 U.S. 466 (2000) ........... 26

Ballard v. United States, 329 U.S. 187 (1946) .... 11,19

Batson v. Kentucky, 476 U.S. 79 (1986) .................... 20

Blakely v. Washington, 542 U.S. 296 (2004)............. 26

Blueford v. Arkansas, 566 U.S. 599 (2012) .......... 15,16

Daniel v. Louisiana, 420 U.S. 31 (1975) ................... 28

DeStefano v. Woods, 392 U.S. 631 (1968) ................. 28

Duncan v. Louisiana, 391 U.S. 145 (1968) ......... 2,4,20

Griffith v. Kentucky, 479 U.S. 314 (1987) ................. 28

Holland v. Illinois, 493 U.S. 474 (1990) ................... 19

Hurst v. Florida, 136 S. Ct. 616 (2016)..................... 26

J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994).... 20

Johnson v. Louisiana, 406 U.S. 356 (1972) ...... passim

Marks v. United States, 430 U.S. 188 (1977)............ 25

McDonald v. City of Chicago, 561 U.S. 742 (2010) .. 27

Peña-Rodriguez v. Colorado, 137 S. Ct. 855 (2017) .... 11

Peters v. Kiff, 407 U.S. 493 (1972) .................. 11,12,20

Powers v. Ohio, 499 U.S. 400 (1991) ............ 7,19,21,22

Schriro v. Summerlin, 542 U.S. 348 (2004) .............. 28

Seminole Tribe of Florida v. Florida, 517 U.S. 44

(1996) .................................................................... 27

Shea v. Louisiana, 470 U.S. 51 (1985) ...................... 28

Taylor v. Louisiana, 419 U.S. 522 (1975) ................. 11

iv

Cases

Page(s)

Teague v. Lane, 489 U.S. 288 (1989)......................... 28

Thiel v. Southern Pac. Co., 328 U.S. 217 (1946)....... 18

Timbs v. Indiana, 139 S. Ct. 682 (2019) ................... 27

United States v. Geffrard, 87 F.3d 448 (11th Cir.

1996) ..................................................................... 25

United States v. Lopez, 581 F.2d 1338 (1978)........... 17

Williams v. Florida, 399 U.S. 78 (1970) ................... 13

Constitutions

U.S. Const. amend. VI ................................................. 2

Ariz. Const., art. II, § 23 .............................................. 6

La. Const. of 1898, art. 116 ...................................... 5-6

La. Const. of 1974, art. I, § 17 ..................................... 6

Mont. Const. of 1972, art. II, § 26 ............................... 6

N.Y. Const. of 1777, § 41 ............................................. 4

N.C. Const. of 1776, art. I, § 9 ..................................... 3

N.D. Const., art. I, § 13 ............................................... 6

Or. Const., art. I, § 11 .................................................. 6

Pa. Const. of 1776, art. I, § 9 ....................................... 3

Utah Const. of 1895, art. I, § 10 .................................. 4

Laws & Bills

Resolutions of the Continental Congress

(Oct. 19, 1765) ........................................................ 2

Act No. 722, 2018 La. Reg. Sess. ................................. 6

Mass. Body of Liberties (1641) .................................... 2

H.B. 2615, 2019 Or. Reg. Sess. ................................... 6

House Joint Res. 10, 2019 Or. Reg. Sess. ................... 6

v

Miscellaneous Authorities

Page(s)

Abramson, Jeffrey, Four Models of Jury

Democracy, 90 Chi.-Kent L. Rev. 861 (2015) ...... 21

Alschuler, Albert W., & Andrew G. Deiss, A

Brief History of the Criminal Jury in the

United States, 61 U. Chi. L. Rev. 867 (1994) ........ 2

American Bar Ass’n, Principles for Juries &

Jury Trials (2005) ........................................... 17-18

Blackstone, William, Commentaries on the Laws

of England vol. 3 (1st ed. 1768) ............................. 3

Bove III, Emil J., Note, Preserving the Value of

Unanimous Criminal Jury Verdicts in AntiDeadlock Instructions, 97 Geo. L. J. 251 (2008) .... 25

Buckhout, Robert, et al., Jury Verdicts:

Comparison of 6- vs. 12-Person Juries and

Unanimous vs. Majority Decision Rule in a

Murder Trial, 10 Bulletin of the

Psychonomic Soc’y 175 (1977),

https://tinyurl.com/Buckhout-JuryVerdicts ........ 23

Court Statistics Project, Nat’l Ctr. for State Cts.,

National Jury Improvement Efforts (Feb. 2008),

https://tinyurl.com/NCSC-NatlJuryImprove ........ 8

Dann, B. Michael, & Valerie P. Hans, Recent

Evaluative Research on Jury Trial Innovations, Court Review 12 (Spring 2004),

https://tinyurl.com/DannHansJuryInnovations ..................................................... 9

Devine, Dennis J., et al., Jury Decision Making:

45 Years of Empirical Research on

Deliberating Groups, 7 Psychol. Pub. Pol’y &

L. 622 (2001) ......................................................... 13

vi

Miscellaneous Authorities

Page(s)

Flynn, Leo J., Does Justice Fail When the Jury

is Deadlocked?, 61 Judicature 129 (1977) ........... 24

Glasser, Michael H., Letting the Supermajority

Rule: Nonunanimous Jury Verdicts in

Criminal Trials, 24 Fla. St. U. L. Rev. 659

(1997) .................................................................... 22

Hale, Matthew, The History of the Common Law

(4th ed. 1792) .......................................................... 3

Hannaford-Agor, Paula L., et al., Are Hung Juries

a Problem? (Nat’l Ctr. for State Cts. 2002),

https://tinyurl.com/NCSC-HungJuriesProblem .... 24

Hastie, Reid, et al., Inside the Jury (1983) ..... 13,14,18

Jonakait, Randolph N., The American Jury

System (2003) ......................................................... 3

Judicial Council of Cal., Fact Sheet: History of the

Jury Improvement Program (Aug. 2018),

https://tinyurl.com/CalJudCouncilJuryImprove ........................................................ 8-9

Kalven, Jr., Harry, & Hans Zeisel, The

American Jury (1966)........................................... 23

Mize, Gregory E., Paula Hannaford-Agor &

Nicole L. Waters, The State-of-the-States

Survey of Jury Improvement Efforts: A

Compendium Report (Nat’l Ctr. for State Cts.

& State Justice Inst. 2007),

https://tinyurl.com/NCSC-JuryImprovements... 7,8

Nat’l Ctr. for State Cts., A Profile of Hung

Juries (May 2003),

https://tinyurl.com/NCSC-ProfileHungJuries ..... 24

vii

Miscellaneous Authorities

Page(s)

Neilson, William S., & Harold Winter, The

Elimination of Hung Juries: Retrials and

Nonunanimous Verdicts, 25 Int’l Rev. L. &

Econ. 1 (2005), https://tinyurl.com/NeilsonWinter2005 ........................................................... 23

N.Y. Chief Admin. Judge, First Annual Report

Pursuant to Section 528 of the Judiciary Law

(2012), https://tinyurl.com/NYJudLaw528Report ............................................... 7,8

N.Y. State Unified Ct. Sys., Final Report of the

Committees of the Jury Trial Project (2005),

https://tinyurl.com/NYCmtesJuryTrialProject ..... 8

Reichelt, Jason D., Standing Alone: Conformity,

Coercion, and the Protection of the Holdout

Juror, 40 U. Mich. J. L. Reform 569 (2007) 14,18,24

Saks, Michael J., What Do Jury Experiments

Tell Us About How Juries (Should) Make

Decisions?, 6 S. Cal. Interdisciplinary L.J. 1

(1997) .................................................................... 21

Schwartz, Edward P., & Warren F. Schwartz,

Decisionmaking by Juries Under Unanimity

and Supermajority Voting Rules, 80 Geo. L.J.

775 (1992) ............................................................. 15

Simerman, John, Split Verdict in Cardell Hayes’

Trial Shines Light on How Louisiana’s

Unusual Law Affects Jury Deliberations, New

Orleans Advocate (May 1, 2018),

https://tinyurl.com/AdvocateSimerman180501 ................................................. 14

viii

Miscellaneous Authorities

Page(s)

Smith, Douglas G., The Historical and

Constitutional Contexts of Jury Reform, 25

Hofstra L. Rev. 377 (1996) ..................................... 2

Story, Joseph, Commentaries on the

Constitution of the United States vol. 2 (5th

ed. 1891) ................................................................. 4

Taslitz, Andrew E., Temporal Adversarialism,

Criminal Justice, and the Rehnquist Court:

The Sluggish Life of Political Factfinding, 94

Geo. L. J. 1589 (2006)........................................... 22

Taylor-Thompson, Kim, Empty Votes in Jury

Deliberations, 113 Harv. L. Rev. 1261

(2000) .......................................................... 13,15,19

INTEREST OF THE AMICI STATES

Forty-nine States—including amici States of New

York, California, Illinois, Michigan, Minnesota,

Nevada, Vermont, and Virginia, and the District of

Columbia—currently require a jury verdict to be

unanimous in order to convict a defendant of a felony.

Many of these laws date to the colonial era and have

long been enshrined in state constitutions. While this

Court’s 1972 decision in Apodaca v. Oregon held that

the federal Constitution requires unanimous jury

verdicts only in federal felony trials and not in state

felony trials, not a single State abandoned its

commitment to the unanimity requirement in the

forty-seven years since Apodaca was decided. To the

contrary, numerous States have in that time amended

their constitutions to protect or (in the case of

respondent Louisiana) to reinstate the unanimity

requirement, and Oregon, the one remaining outlier,

appears poised to do the same in the near future.

Amici’s long experience demonstrates that the

unanimity requirement in felony trials advances,

rather than hinders, the States’ strong interest in fair

and impartial criminal law enforcement. Mandatory

unanimity also improves the quality of deliberations,

ensures consideration of minority viewpoints in the

jury, promotes public confidence in the accuracy of

verdicts, and underscores the importance of jury

service as a fundamental civic duty. Extending the

Sixth Amendment’s unanimity requirement to the

States recognizes the important role that unanimity

plays in enabling juries to perform these functions and

reinforces the efforts made by amici States to expand

and diversify their jury pools.

2

STATEMENT

A. The States’ Long Experience with

the Unanimity Requirement

The right to trial by jury has been an indispensable feature of the Anglo-American legal system for

centuries. See Duncan v. Louisiana, 391 U.S. 145, 151156 (1968). Early American colonists enshrined the

common law right to a jury trial in foundational

documents, see, e.g., Mass. Body of Liberties 29 (1641),

with the First Congress of the American Colonies

declaring that a jury trial “is the inherent and invaluable right of every British subject in these colonies,”

Resolutions of the Continental Congress (Oct. 19, 1765).

See generally Douglas G. Smith, The Historical and

Constitutional Contexts of Jury Reform, 25 Hofstra L.

Rev. 377, 421-26 (1996). The Declaration of Independence cited the deprivation of “the benefits of trial by

jury” as one of the chief grievances against King

George III. And every state constitution adopted prior

to the ratification of the federal Constitution guaranteed the jury trial right for criminal defendants—the

only right recognized in every pre-ratification state

constitution. See Albert W. Alschuler & Andrew G.

Deiss, A Brief History of the Criminal Jury in the

United States, 61 U. Chi. L. Rev. 867, 870 (1994). The

Sixth Amendment continued this long-standing tradition by safeguarding the right to a jury trial in the

United States Constitution. See U.S. Const. amend.

VI. “[T]he constitution of every State entering the

Union thereafter in one form or another protected the

right to jury trial in criminal cases.” Duncan, 391 U.S.

at 153.

Jury unanimity has long been seen as an

indispensable part of the right to trial by jury. “[T]he

3

requirement of unanimity arose during the Middle

Ages and had become an accepted feature of the

common-law jury by the 18th century.” Apodaca v.

Oregon, 406 U.S. 404, 407-08 (1972) (plurality op.); see

also American Publ’g Co. v. Fisher, 166 U.S. 464, 468

(1897). The unanimity requirement granted “a great

weight, value and credit” to a verdict. Matthew Hale,

The History of the Common Law 293 (4th ed. 1792).

“The jury was to pronounce the truth, and there was

only one truth. If all jurors did not agree to a verdict,

then a truth was not being declared.” Randolph N.

Jonakait, The American Jury System 94 (2003). As

William Blackstone observed, “it is the most transcendent privilege which any subject can enjoy . . . 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.” 3 William Blackstone,

Commentaries on the Laws of England 379 (1st ed.

1768).

Although several American colonies allowed for

non-unanimous jury verdicts in the late 1600s,

“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.” Apodaca,

406 U.S. at 407 n.3 (plurality op.) (citing John M.

Murrin, The Legal Transformation: The Bench and

Bar of Eighteenth-Century Massachusetts, in Colonial

America: Essays in Politics and Social Development

415 (S. Katz ed. 1971)). Following the American

Revolution, States incorporated the unanimity requirement into their constitutions either expressly or by

reference to the common law right, and new States

continued to do so as they joined the Union. See, e.g.,

N.C. Const. of 1776, art. I, § 9; Pa. Const. of 1776, art.

4

I, § 9; N.Y. Const. of 1777, § 41; Utah Const. of 1895,

art. I, § 10. In his commentary on constitutional history,

Justice Joseph Story explained what Americans have

long understood to be true: a jury “must unanimously

concur in the guilt of the accused before a legal

conviction can be had.” 2 Joseph Story, Commentaries

on the Constitution of the United States 559 n.2 (5th

ed. 1891) (emphasis in original).

In Apodaca, this Court confronted two related

questions: whether the Sixth Amendment requires

jury unanimity to convict a defendant of a serious

offense; and, if so, whether that specific constitutional

requirement is incorporated against the States by the

Fourteenth Amendment. See Apodaca, 406 U.S. at 406

(plurality op.). 1 An unusual distribution of votes

between these two questions resulted in a single

justice’s concurrence, joined by no other member of

this Court, becoming the controlling opinion. Four

justices (Justices Stewart, Brennan, Marshall, and

Douglas) concluded that the Sixth Amendment

requires unanimity in light of the overwhelming historical record and centuries of unbroken precedent and

practice. Four justices (Chief Justice Burger and

Justices White, Blackmun, and Rehnquist) disagreed,

1 Apodaca was heard and decided together with Johnson v.

Louisiana, a case involving due process and equal protection

challenges to a conviction rendered by a nine-to-three verdict. See

406 U.S. 356, 358-59 (1972). In Johnson, a majority of the Court

held that the “disagreement of three jurors does not alone

establish reasonable doubt” so as to violate due process or equal

protection. Id. at 362. Johnson did not involve a Sixth Amendment challenge because the defendant’s trial occurred before this

Court incorporated the jury trial right against the States in

Duncan v. Louisiana, 391 U.S. 145.

5

concluding that jury unanimity was not required by

the Sixth Amendment. While these justices disagreed

on the substance of the Sixth Amendment, all eight of

them agreed that the Sixth Amendment was

incorporated against the States in its entirety. 2

Only Justice Powell took a narrower view of

incorporation, but as the dispositive vote his sole

concurrence became the controlling opinion for the

Court. Justice Powell concluded that the Sixth Amendment requires jury unanimity in federal criminal jury

trials, but that this aspect of the Sixth Amendment

was not incorporated against the States. See Johnson,

406 U.S. at 369-80 (Powell, J., concurring).

At the time this Court decided Apodaca, only two

States—Louisiana and Oregon—permitted nonunanimous verdicts in felony criminal cases. Neither

State had permitted non-unanimous verdicts in its

original constitution, but each adopted that approach

in subsequent amendments. In 1898, Louisiana

amended its constitution to provide that “cases in

which the punishment is necessarily at hard labor

[shall be tried] by a jury of twelve, nine of whom

concurring may render a verdict,” except in capital

cases where a verdict must be unanimous. La. Const.

2 Many of the concurring and dissenting opinions in Apodaca

and Johnson were published separately, and several of these

opinions overlapped between the two cases. The following

citations collect the opinions regarding the Sixth Amendment

issue. Apodaca, 406 U.S. at 410-14 (plurality op.); id. at 414-15

(Stewart, J., dissenting); Johnson v. Louisiana, 406 U.S. 366,

369-80 (1972) (Powell, J., concurring); Johnson v. Louisiana, 406

U.S. 380, 382 (1972) (Douglas, J., dissenting); Johnson v.

Louisiana, 406 U.S. 395, 396 (1972) (Brennan, J. dissenting);

Johnson v. Louisiana, 406 U.S. 399, 400 (1972) (Marshall, J.,

dissenting).

6

of 1898, art. 116. In 1974, Louisiana again amended

its constitution, this time to require ten of twelve

jurors to concur in a verdict. La. Const. of 1974, art. I,

§ 17. Similarly, in 1934, Oregon amended its constitution to provide that “ten members of the jury may

render a verdict of guilty or not guilty, save and except

a verdict of guilty of first degree murder, which shall

be found only by a unanimous verdict.” Or. Const., art.

I, § 11 (amended May 18, 1934).

Although Apodaca made clear that other States

were not barred by the federal Constitution from

joining Louisiana and Oregon, not a single additional

State has departed from its commitment to the

unanimity requirement since this Court’s decision. To

the contrary, Arizona, Montana, and North Dakota

responded by amending their constitutions to

expressly mandate unanimity in felony criminal cases.

See Ariz. Const., art. II, § 23 (ratified Nov. 7, 1972);

Mont. Const. of 1972, art. II, § 26; N.D. Const., art. I,

§ 13 (ratified as § 7, Sept. 3, 1974). And both Louisiana

and Oregon have themselves recently moved to join

this nationwide consensus. In 2018, Louisiana voters

overwhelmingly approved a constitutional amendment

to require unanimous verdicts in felony cases where

the offense was committed on or after January 1, 2019.

See Act No. 722, 2018 La. Reg. Sess. (ratified Nov. 6,

2018). And Oregon is currently considering a proposal

for a similar ballot measure. See House Joint Res. 10,

2019 Or. Reg. Sess. (introduced Jan,. 14, 2019); H.B.

2615, 2019 Or. Reg. Sess. (introduced Jan. 14, 2019).

Accordingly, forty-nine States and the federal

government currently require unanimous jury

verdicts in all felony criminal cases, and the last

remaining State may adopt such a requirement soon.

7

B. The States’ Efforts to Improve

Their Jury Systems

Juries are integral to the American criminal

justice system, and jury service is one of the most

important civic duties in American life. See Powers v.

Ohio, 499 U.S. 400, 402, 406-07 (1991). States have

accordingly devoted substantial resources to improving

state and local jury systems.

First, States have employed various measures to

increase the size and representativeness of jury pools.

New York, for example, utilizes five different source

lists to compile a master list of prospective jurors,

including voter rolls, Department of Motor Vehicle

records, tax records, and records of recipients of

unemployment and family assistance benefits. See

N.Y. Chief Admin. Judge, First Annual Report

Pursuant to Section 528 of the Judiciary Law 3 (2012).

At least thirty States require the use of two or more

source lists to compile the jury pool, and many

jurisdictions permit local courts to supplement with

additional lists. See Hon. Gregory E. Mize, Paula

Hannaford-Agor & Nicole L. Waters, The State-of-theStates Survey of Jury Improvement Efforts: A

Compendium Report 13-14 (Nat’l Ctr. for State Cts. &

State Justice Inst. 2007). Moreover, at least twentynine States provide direct assistance to underresourced local courts by compiling master jury lists

at the state level and making them available to local

courts. Id. at 14.

Second, States have sought to eliminate financial

barriers to jury service by, among other things,

shortening the terms of service and increasing the

rates of juror compensation. For example, Arizona,

California, Colorado, Connecticut, the District of

8

Columbia, Florida, Hawai‘i, Indiana, Massachusetts,

and Oklahoma employ a “one day or one trial” system,

in which citizens are either empaneled as a trial juror

on the day they report for service or are released from

service at the end of the day. See id. at 10-11. All but

two counties in New York utilize a similar system.

N.Y. Chief Admin. Judge, supra, at 4. A number of

States offer juror compensation of more than $40 per

day, and at least eight States and the District of

Columbia require employers to provide compensation

to employees for time spent in jury service. See Mize

et al., supra, at 11-12. In addition, States and localities

have created internet and telephone systems to allow

prospective jurors to request postponement or complete

qualification questionnaires prior to appearing for

service. See, e.g., Court Statistics Project, Nat’l Ctr. for

State Cts., National Jury Improvement Efforts 6-7

(Feb. 2008). Collectively, these measures promote

broader participation in jury service. See id. at 1-5.

Finally, States have expended considerable

resources on studying and implementing in-court

procedures and trial innovations to improve juror

comprehension and performance. For example, New

York commissioned a two-year study involving 51

judges from 16 counties to evaluate and propose

statewide measures such as making written charges

available to deliberating juries and permitting jurors

to take notes and submit written questions to

witnesses. See N.Y. State Unified Ct. Sys., Final

Report of the Committees of the Jury Trial Project

(2005). The Judicial Council of California has spent

more than two decades studying and implementing

various jury reforms, including measures aimed at

improving juror performance in complex and lengthy

trials. See Judicial Council of Cal., Fact Sheet: History

9

of the Jury Improvement Program (Aug. 2018).

Massachusetts, Ohio, and Tennessee, among others,

have also commissioned studies of measures to assist

jurors in trials. See B. Michael Dann & Valerie P.

Hans, Recent Evaluative Research on Jury Trial

Innovations, Court Review 12, 14 (Spring 2004). These

ongoing efforts reflect the States’ commitment to

ensuring that juries advance the fairness and

reliability of the criminal justice system.

SUMMARY OF ARGUMENT

I. Amici States have required unanimous jury

verdicts for felony convictions for hundreds of years.

Amici’s experience, confirmed by the overwhelming

weight of social science research, demonstrates that

the unanimity requirement improves the quality of

jury deliberations and ensures that jury verdicts

reflect the collected wisdom, experience, and perspective of every juror. Juries subject to a unanimity

requirement deliberate longer, evaluate evidence more

thoroughly, and grapple with the viewpoints of every

member of the jury. This improved deliberative

process contributes to more fair and reliable verdicts,

which in turn reinforce public confidence in the legitimacy of the criminal justice system. The unanimity

requirement is therefore a critical component of the

States’ constitutional obligation to administer fair and

impartial criminal jury trials.

II. Amici agree that as a general matter the

principle of stare decisis is an important feature of our

legal system, ensuring both respect for the rule of law

and evenhanded application of the law to all similarly

situated people. Stare decisis thus requires an exceptionally strong reason to depart from long-standing

10

precedents. But two unique features of Apodaca

justify departing from its holding here. First, only one

justice actually endorsed the reasoning behind the

holding of Apodaca—namely that the Sixth Amendment jury trial right required unanimity in federal

criminal trials but not in state criminal trials. Eight

justices believed that the Sixth Amendment jury trial

right should mean the same thing in both federal and

state trials, but four of them thought unanimity was

required and four of them thought it was not. As a

result, Justice Powell’s view constituted a majority

with one group of four for unanimity in federal trials,

and a different majority with the other group of four

for non-unanimity in state trials. The resulting rule,

based on an analysis with only one adherent, has less

claim to stare decisis than an analysis adopted by a

majority or even a plurality of the Court.

Second, since Apodaca, this Court has repeatedly

held that an incorporated constitutional right should

apply in the same way to the States as it does to the

federal government. The Court thus has already

repudiated Justice Powell’s bifurcated analysis,

leaving it with even less claim to stare decisis than it

had at the outset.

In short, Justice Powell’s concurrence always

represented a singular view, and its doctrinal underpinnings have subsequently been dismantled by this

Court. Under these unique circumstances, stare

decisis does not require this Court to adhere to Justice

Powell’s already-superseded view of incorporation.

11

ARGUMENT

I.

The Unanimity Requirement Promotes a

Fair and Impartial Criminal Justice System.

The States are committed to administering a

criminal justice system that effectively enforces the

law while respecting the constitutional rights of

defendants. “Like all human institutions, the jury

system has its flaws, yet experience shows that fair

and impartial verdicts can be reached if the jury

follows the court’s instructions and undertakes

deliberations that are honest, candid, robust, and

based on common sense.” Peña-Rodriguez v. Colorado,

137 S. Ct. 855, 861 (2017). A unanimity requirement

ensures the vigorous deliberative process critical to

the proper functioning of criminal juries. After all,

“[t]he very object of the jury system is to secure unanimity by a comparison of views, and by arguments among

the jurors themselves.” Allen v. United States, 164

U.S. 492, 501 (1896).

The unanimity requirement also guarantees that

minority viewpoints of all sorts are not only present in

the jury room, but reflected in the jury’s verdict. As

Justice Marshall has observed, “When any large and

identifiable segment of the community is excluded

from jury service, the effect is to remove from the jury

room qualities of human nature and varieties of

human experience, the range of which is unknown and

perhaps unknowable.” Peters v. Kiff, 407 U.S. 493, 503

(1972) (opinion of Marshall, J.), quoted approvingly in

Taylor v. Louisiana, 419 U.S. 522, 532 n.12 (1975); see

also Ballard v. United States, 329 U.S. 187, 193-94

(1946). That “exclusion deprives the jury of a perspective on human events that may have unsuspected

importance in any case that may be presented.” Peters,

12

407 U.S. at 503-04. But if a jury can reach a verdict

without unanimity, it is free to ignore the distinctive

perspective brought by some jurors, and the benefit of

including them in the jury room may be lost. The

critical advantage of a jury composed of individuals

with varied backgrounds, experiences, and perspectives is that the group as a whole may draw from a

base of knowledge and experience that no single

person can possess. The unanimity requirement

ensures that a criminal jury takes full advantage of

the collected knowledge of all of its members.

By contrast, the absence of unanimity improperly

allows minority views to be silenced or ignored by a

voting majority—undermining the representativeness

of juries, forgoing the many benefits of a diverse jury,

and raising the risk of inaccurate verdicts. Nonunanimous verdicts also significantly erode public

faith in the legitimacy of the legal system by raising

serious doubts about the validity of both convictions

and acquittals. These doubts are especially damaging

to public confidence when they affect trials for the

most serious offenses, such as murder and rape. The

unanimity requirement that nearly every State has

adopted is thus critical to promoting a fair and

impartial criminal justice system.

13

A. The Unanimity Requirement Improves

the Quality of Jury Deliberations and

Verdicts.

1. The unanimity requirement

results in longer and more

careful deliberations.

“[T]he essential feature of a jury obviously lies in

the interposition between the accused and his accuser

of the commonsense judgment of a group of laymen,

and in the community participation and shared responsibility that results from that group’s determination of

guilt or innocence.” Williams v. Florida, 399 U.S. 78,

100 (1970). “The performance of this role” depends on

the jury’s ability to meaningfully deliberate. Id. The

outcome in Apodaca therefore turned in large part on

an assumption that the unanimity requirement has no

bearing on the jury’s ability to effectively deliberate.

See Apodaca, 406 U.S. at 410-11 (plurality op.);

Johnson, 406 U.S. at 378-79 (Powell, J.)(concurring);

see also Johnson, 406 U.S. at 361-62. The States’

experience and the weight of empirical evidence rebut

this assumption.

First, the unanimity requirement typically results

in longer deliberations. In the absence of a unanimity

requirement, “once a vote indicates that the required

majority has formed, deliberations halt in a matter of

minutes.” Kim Taylor-Thompson, Empty Votes in Jury

Deliberations, 113 Harv. L. Rev. 1261, 1272 (2000).

Indeed, research shows that deliberation time often

corresponds to the number of jurors required to reach

a verdict. See, e.g., Reid Hastie et al., Inside the Jury

173-74 (1983); 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).

14

For example, one mock-jury study found that twelvemember juries required to reach unanimous verdicts

in a murder case deliberated for an average of 135

minutes, whereas those required to reach eight- or

ten-member majorities deliberated for an average of

75 minutes and 103 minutes, respectively. Hastie et

al., supra, at 60. This pattern is also visible in realworld trials. As one Louisiana juror noted after

rendering a split verdict in a high-profile murder case,

“[w]e knew that we only needed 10 jurors to convict, so

we set out for that goal rather than the full 12.” John

Simerman, Split Verdict in Cardell Hayes’ Trial Shines

Light on How Louisiana’s Unusual Law Affects Jury

Deliberations, New Orleans Advocate (May 1, 2018).

Second, non-unanimous juries are substantially

more likely to adopt a “verdict-driven,” rather than an

“evidence-driven,” approach to deliberation. Hastie et

al., supra, at 165. “Verdict-driven” deliberations typically begin with a preliminary vote, focus on each

juror’s preferred verdict, and discuss evidence to the

extent it supports a specific verdict position. Id. at 163.

By contrast, “evidence-driven” deliberations focus on a

review of the evidence “without reference to the

verdict categories, in an effort to agree upon the single

most credible story that summarizes the events at the

time of the alleged crime.” Id. Unsurprisingly, the

jury’s review of evidence is “more disjointed and

fragmentary in verdict-driven than evidence-driven”

deliberations. Id. at 164. Other studies show that

juries operating under non-unanimous rules “discuss

both the law and evidence less, recall less evidence,

and were less likely to correct their own mistakes

about the evidence or the jury instructions.” Jason D.

Reichelt, Standing Alone: Conformity, Coercion, and

the Protection of the Holdout Juror, 40 U. Mich. J. L.

15

Reform 569, 580 (2007) (quotation marks omitted).

This research suggests that a non-unanimous rule

“discourages painstaking analyses of the evidence and

steers jurors toward swift judgments that too often are

erroneous or at least highly questionable.” TaylorThompson, supra, at 1273.

Both defendants and prosecutors are harmed

when juries pursue a shorter and less evidence-driven

deliberative process because such a process results in

less reliable convictions and acquittals. Cf. Edward P.

Schwartz & Warren F. Schwartz, Decisionmaking by

Juries Under Unanimity and Supermajority Voting

Rules, 80 Geo. L.J. 775, 787 (1992) (finding that a

majority verdict rule increased the probability of

conviction by 641% and the probability of acquittal by

833%). By contrast, meaningful deliberation is dynamic

and encourages the reexamination of evidence and

reconsideration of jurors’ initial views. See Blueford v.

Arkansas, 566 U.S. 599, 607-08 (2012).

In Blueford, for example, the jury was charged

with determining whether the defendant committed

capital murder or one of the lesser offenses of firstdegree murder, manslaughter, and negligent homicide.

Before the jury concluded its deliberations, it reported

that it was unanimous against guilt on capital and

first-degree murder, deadlocked with nine votes in

favor of conviction on manslaughter, and had not yet

voted on negligent homicide. See id. at 603. After

receiving multiple Allen charges, the jury continued to

deliberate but ultimately announced that it could not

reach a final verdict. Id. at 604. On appeal, Blueford

argued that the Double Jeopardy Clause prohibited

his retrial on the capital and first-degree murder

counts because the jury had disclosed that it was

unanimously in favor of acquittal. This Court rejected

16

the argument, noting that the jury had never reached

a final verdict of acquittal on those charges and was

thus “free to reconsider a greater offense, even after

considering a lesser one,” at any time during deliberations. Id. at 607.

As this Court explained, juries often take a

preliminary vote prior to deliberation but then “engage

in a discussion about the circumstances of the crime”

after they are unable to reach unanimous agreement

on a verdict. Id. In the course of these discussions, a

juror that initially voted in favor of acquittal or

conviction might “start[] rethinking his own stance”

and, “[a]fter reflecting on the evidence,” change his

vote. Id. But these deliberations—and carefully

considered changes of initial positions—occur only if

jurors in the voting majority are required to

“consider[] the arguments of the other jurors.” Id. By

contrast, if Blueford had been tried in a jurisdiction

that permitted conviction by nine votes—as this Court

has found to be permissible, see Johnson, 406 U.S. at

364—deliberations would likely have ceased after the

initial vote count, and the jury would have delivered a

final verdict of acquittal on the higher counts and

conviction only on manslaughter. Such a precipitous

verdict may well have prevented further (and more

reasoned) deliberations that could have convinced at

least some jurors that acquittal on the higher counts

was inappropriate, as this Court correctly noted.

Blueford, 566 U.S. at 608. The jury’s deliberations in

Blueford thus highlight how the unanimity requirement can encourage longer deliberations and more

comprehensive consideration of the evidence—often

resulting in fairer and more carefully considered

decisions in individual cases.

17

2. The unanimity requirement ensures

that juries consider the opinions,

experiences, and perspectives of all

community members.

The unanimity requirement also ensures that

juries evaluate and respond to the viewpoints of every

individual juror prior to rendering a verdict. As thenCircuit Judge Anthony Kennedy observed, “[t]he

dynamics of the jury process are such that often only

one or two members express doubt as to [the] view

held by a majority at the outset of deliberations.”

United States v. Lopez, 581 F.2d 1338, 1341 (1978). “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.” Id. For example, a veteran may have a

unique perspective on a defendant’s assertion that he

committed a crime because of post-traumatic stress

disorder. A young woman might have insight about

the testimony of a rape victim. And a game hunter may

evaluate a defendant’s claim of accidental discharge

differently than a person who has never held a weapon.

Apodaca rested on the assumption that the

unanimity requirement was not necessary to ensure

the consideration of minority views. Johnson, 406 U.S.

at 361; see also Apodaca, 406 U.S. at 413 (plurality

op.), Johnson, 406 U.S. at 379 (Powell, J. concurring).

But subsequent research and experience cast serious

doubt on this view.

As the American Bar Association has noted, “[a]

non-unanimous decision rule allows juries to reach a

quorum without seriously considering minority voices,

thereby effectively silencing those voices and negating

their participation.” Am. Bar Ass’n, Principles for

18

Juries & Jury Trials, Principle 4 at 22 (2005).

Researchers found that “larger factions in majority

rule juries adopt a more forceful, bullying, persuasive

style because their members realize that it is not

necessary to respond to all opposition arguments

when their goal is to achieve a faction size of only eight

or ten members.” Hastie et al., supra, at 112. By

contrast, “[j]urors working towards unanimity were

more effective in actually persuading their members

that the final verdict was the appropriate one, [and]

engaged in more robust argument.” Reichelt, supra, at

580-81.

The unanimity requirement also ensures that the

representative nature of the jury is reflected in its

deliberations. “The American tradition of trial by jury

. . . necessarily contemplates an impartial jury drawn

from a cross-section of the community.” Thiel v.

Southern Pac. Co., 328 U.S. 217, 220 (1946); see also

Johnson, 406 U.S. at 402 (Marshall, J. dissenting)

(jury’s “fundamental characteristic is its capacity to

render a commonsense, laymen’s judgment, as a

representative body drawn from the community”).

Indeed, the States’ exhaustive efforts to increase the

size of the jury pool, eliminate financial barriers to

jury service, and improve the rate of responses to

summonses have all been aimed at promoting this

important constitutional value. See supra at 7-9. The

goal of fair representation is not cosmetic; instead, its

function is to ensure that the decisions of juries as a

whole reflect “every stratum of society.” Thiel, 328

U.S. at 220. And the unanimity requirement ensures

that a jury which is drawn from a fair cross-section of

the community actually considers the diverse views of

its members, rather than subordinating the views of

minority jurors to those of the majority. By contrast, a

19

deliberative process that allows juries to ignore or

silence minority views undermines the fairness of

legal proceedings and “invites cynicism respecting the

jury’s neutrality and its obligation to adhere to the

law.” Powers, 499 U.S. at 412.

Respecting the views of all jurors benefits both

parties in a criminal case. When a jury is drawn from

a representative cross-section of the community and is

given the opportunity to meaningfully deliberate,

“neither the defendant nor the State should be

favored.” Holland v. Illinois, 493 U.S. 474, 483 (1990).

Jurors “neither act nor tend to act as a class,” but they

do have distinct perspectives that are often affected

by, among other things, their race, gender, religion,

and personal background. Ballard, 329 U.S. at 193.

“[J]urors’ assumptions and beliefs about the world

inevitably frame their judgments and perceptions of

evidence” to the benefit of the truth-seeking process.

Taylor-Thompson, supra, at 1278. And a jury necessarily benefits from the collected knowledge, experience,

and wisdom of its individual members to reach

informed and objective decisions. A member of a

voting minority may or may not be able to persuade

her fellow jurors of her view of the evidence. But at

minimum, the fact that each individual juror’s vote is

necessary for the jury to speak as a united body means

that every perspective must be considered and

debated before the jury can reach a verdict. “[A] flavor,

a distinct quality is lost” when the jury system

excludes voices that can make substantial contributions to the deliberative process. Ballard, 329 U.S. at

194. It is equally lost when the voices are present, but

need not be considered, because the jury can reach a

non-unanimous verdict without them.

20

3. The unanimity requirement bolsters

public confidence in the fairness and

reliability of the jury system.

One of the essential purposes of the jury trial right

is to promote “public confidence in the fairness of our

system of justice.” Batson v. Kentucky, 476 U.S. 79, 87

(1986). In the States’ experience, the unanimity

requirement supports positive public perceptions of

the fairness, accuracy, and reliability of the criminal

justice system.

First, the unanimity requirement ensures public

confidence that the verdict was rendered by a jury that

is representative of the community. The “jury has

occupied a central position in our system of justice by

safeguarding a person accused of crime against the

arbitrary exercise of power by prosecutor or judge.” Id.

at 86; see also Duncan, 391 U.S. at 156. “[T]he

exclusion from jury service of a substantial and identifiable class of citizens” disregards the constitutional

requirement of representativeness and thereby undermines the fairness and legitimacy of the criminal

justice system. Peters, 407 U.S. at 503 (opinion of

Marshall, J.). Such exclusion also wrongly deprives

individuals of the “equal opportunity to participate in

the fair administration of justice,” a value that “is

fundamental to our democratic system.” J.E.B. v.

Alabama ex rel. T.B., 511 U.S. 127, 145-45 (1994).

Because jury unanimity ensures that the viewpoints

of all jurors are considered during deliberations, a

unanimity requirement promotes public confidence in

the values embodied by the representativeness

requirement by ensuring that no juror’s vote can be

ignored by a voting majority.

21

Second, the unanimity requirement “impress[es]

upon the criminal defendant and the community as a

whole that a verdict of conviction or acquittal is given

in accordance with the law by persons who are fair,”

Powers, 499 U.S. at 413. In unanimous-verdict systems,

jurors cannot outvote each other, but must come to an

agreed-upon verdict that “persuade[s] across the

normal demographic divides of race, class, education,

and the like.” Jeffrey Abramson, Four Models of Jury

Democracy, 90 Chi.-Kent L. Rev. 861, 872 (2015). The

public is more likely to believe in the fairness and

legitimacy of a verdict rendered by the collected

judgment of jurors from diverse backgrounds than a

verdict rendered over the unanswered objection of

dissenters. See id. at 884.

Third, the unanimity requirement gives juries

more confidence in the accuracy of their verdicts.

Juries that render verdicts over the objection of

dissenters have “less confidence that they were

correct” than those juries deciding unanimously.

Michael J. Saks, What Do Jury Experiments Tell Us

About How Juries (Should) Make Decisions?, 6 S. Cal.

Interdisciplinary L.J. 1, 41 (1997). That is because

dissenters often maintain a contrary view due to

“ambiguity in the evidence, or plausible alternative

interpretations of the evidence.” Id. While unanimous

juries must debate and reach consensus about those

ambiguities to convict or acquit, majority-rule juries

can and do render verdicts without resolving lingering

concerns. Public confidence in the reliability of the

criminal justice system is diminished when jurors

return from jury service with doubts about the

accuracy of their verdicts.

Finally, the unanimity requirement reinforces

many other civic and social values embodied by the

22

jury system. “Jury service is an exercise of responsible

citizenship by all members of the community, including

those who otherwise might not have the opportunity

to contribute to our civic life.” Powers, 499 U.S. at 402.

“Indeed, with the exception of voting, for most citizens

the honor and privilege of jury duty is their most significant opportunity to participate in the democratic

process.” Id. at 407. By encouraging jurors to engage

with the views of all of their peers in the jury room,

the unanimity requirement “help[s] to inculcate in

jurors traits necessary to good citizenship, specifically,

the willingness to compromise, to see another person’s

perspective, and to accept the need for change.”

Andrew E. Taslitz, Temporal Adversarialism, Criminal Justice, and the Rehnquist Court: The Sluggish

Life of Political Factfinding, 94 Geo. L. J. 1589, 1619

(2006).

B. The Substantial Benefits of the

Unanimity Requirement Outweigh

the Costs Attributable to Hung Juries.

The most frequently cited practical benefit of

eliminating the unanimity requirement is a reduction

in hung juries and the costs of associated mistrials.

See, e.g., Apodaca, 405 U.S. at 411 (plurality op.);

Johnson, 406 U.S. at 377 (Powell, J., concurring); see

also Michael H. Glasser, Letting the Supermajority

Rule: Nonunanimous Jury Verdicts in Criminal

Trials, 24 Fla. St. U. L. Rev. 659, 676-78 (1997).

Retrials do, of course, inflict costs when they occur,

including by burdening prosecutorial and judicial

resources, as well as imposing on victims, witnesses,

defendants, and their families. Adopting a nonunanimous jury rule might reduce these costs because

non-unanimous juries are more likely to reach a

23

verdict than to hang. See William S. Neilson & Harold

Winter, The Elimination of Hung Juries: Retrials and

Nonunanimous Verdicts, 25 Int’l Rev. L. & Econ. 1, 17

(2005); Robert Buckhout et al., Jury Verdicts:

Comparison of 6- vs. 12-Person Juries and Unanimous

vs. Majority Decision Rule in a Murder Trial, 10

Bulletin of the Psychonomic Soc’y 175, 178 (1977). But

even if a unanimity requirement were to marginally

increase the number of hung juries, that cost would be

justified by the many benefits of unanimity, including

its “valued assurance of integrity.” Harry Kalven, Jr.

& Hans Zeisel, The American Jury 453 (1966).

Amici States have no interest in reducing the

number of hung juries and subsequent retrials if doing

so would come at the expense of the accuracy,

reliability, and legitimacy of verdicts. While nonunanimous juries are more likely to reach a verdict,

they are also far more likely to reach an incorrect

verdict. Indeed, research demonstrates that a nonunanimous rule leads to more wrongful convictions

and wrongful acquittals. See Neilson & Winter, supra,

at 3, 17. And such inaccurate verdicts bear their own

costs. Wrongful convictions exact an enormous toll on

defendants and their families as well as on public

confidence in the criminal justice system. Wrongful

convictions also impose a significant fiscal burden on

the States through lawsuits and claims on compensation funds established for individuals who have been

wrongly convicted. And wrongful acquittals undermine

public safety by failing to protect the public from

persons who have committed crimes.

Non-unanimous juries are also more likely to

deliver verdicts where the jury disregarded the

legitimate views or objections of one or more of its

members. See supra at 14-15. Most hung juries result

24

from genuine disagreements about the evidence. See

Paula L. Hannaford-Agor et al., Are Hung Juries a

Problem? 73-74 (Nat’l Ctr. for State Cts. 2002). In such

cases, allowing a majority of the jury to override the

legitimate concerns of the minority impermissibly

increases the likelihood that the majority will overlook

or simply disregard evidence weighing against guilt or

innocence. A “dissenter who has an honest disagreement with the rest of the jury regarding the existence

or absence of reasonable doubt deserves as much

respect and deference as any member of the overwhelming majority.” Reichelt, supra, at 622.

Moreover, the rate of hung juries and resulting

mistrials in criminal proceedings is very low even in

jurisdictions that require unanimous verdicts:

according to a 2002 study, the rate of hung juries in

federal trials is only 2.5 percent, while the rate of hung

juries in state trials is 6.2 percent. See Nat’l Ctr. for

State Cts., A Profile of Hung Juries (May 2003); see

also Hannaford-Agor et al., supra, at 25. And a

substantial percentage of cases in which a jury

deadlocks are ultimately resolved through guilty pleas

or dropped charges rather than a burdensome retrial.

See Leo J. Flynn, Does Justice Fail When the Jury is

Deadlocked?, 61 Judicature 129, 133 (1977). The

substantial benefits of the unanimity requirement

outweigh the costs associated with the already rare

occurrence of hung juries.

Finally, States have many tools at their disposal

to reduce the number of hung juries without abandoning the unanimity requirement. For example, States

have devoted extraordinary resources to improving

jurors’ comprehension of the evidence and relevant

law, including by providing written copies of instructions, permitting juror notetaking, and authorizing

25

jurors to submit written questions to witnesses. See

supra at 7-9. States have also experimented with

various deadlock instructions and procedures to help

juries work through genuine impasses. See Note, Emil

J. Bove III, Preserving the Value of Unanimous

Criminal Jury Verdicts in Anti-Deadlock Instructions,

97 Geo. L. J. 251, 275-86 (2008). States could also

permit more extensive questioning by judges and

counsel during jury selection to identify and strike

potential jurors who would irrationally refuse to apply

the law and consider the evidence. In extraordinary

cases, a court may well have the discretion to remove

a juror that refuses to deliberate in good faith. See

United States v. Geffrard, 87 F.3d 448, 451-52 (11th

Cir. 1996). These measures are more appropriately

tailored to address the factors that lead to avoidable

hung juries, while protecting the integrity of the

deliberative process that, in rare instances, may result

in legitimate and irreconcilable jury divisions.

II. Stare Decisis Does Not Compel Adherence to

Justice Powell’s Concurrence in Apodaca.

Amici do not lightly invite the Court to depart

from prior precedent. But two unique features of

Apodaca substantially reduce the force of stare decisis

here.

First, while Justice Powell’s sole concurrence

represents Apodaca’s formal holding—under this

Court’s rule that the dispositive opinion is the one that

“concurred in the judgment[] on the narrowest

grounds,” Marks v. United States, 430 U.S. 188, 193

(1977)—that holding represents the incorporation

analysis of a single justice that was not endorsed by

any other member of the Court. Indeed, the Apodaca

rule represents the views of a majority only to the

26

extent Justice Powell agreed with the four dissenting

justices that the Sixth Amendment requires a

unanimous verdict in criminal prosecutions for serious

offenses. 3 Johnson, 406 U.S. at 369 (Powell, J.,

concurring); see also 406 U.S. at 382-83 (Douglas, J.,

dissenting); 406 U.S. at 395-96 (Brennan, J.,

dissenting) 406 U.S. at 400 (Marshall, J., dissenting);

Apodaca, 406 U.S. at 414-15 (Stewart, J., dissenting).

Justice Powell’s determination that the Sixth Amendment’s right to a unanimous jury verdict does not

extend to the States—although decisive in the formal

disposition of the case—was embraced by no other

justice. A constitutional rule that represents the

analysis of a single justice, and that relies on a legal

theory expressly rejected by all other justices, is

entitled to less stare decisis deference than a rule that

results from the views of a majority or even a plurality

of the Court.

Second, while there may be circumstances where

stare decisis would counsel in favor of preserving a

similarly split decision, this Court has already

recently rejected the premise behind Justice Powell’s

approach to incorporation. “[S]tare decisis does not

compel adherence to a decision whose underpinnings

have been eroded by subsequent developments of

constitutional law.” Hurst v. Florida, 136 S. Ct. 616,

623-24 (2016) (quotation marks omitted). After

Apodaca, this Court “decisively held that incorporated

3 That principle has been confirmed by this Court’s subsequent decisions, which have consistently reiterated that the Sixth

Amendment requires “the truth of every accusation . . . [to] be

confirmed by the unanimous suffrage of twelve of [the defendant’s] equals and neighbours.” Blakely v. Washington, 542 U.S.

296, 301 (2004) (quotation marks omitted); see also Apprendi v.

New Jersey, 530 U.S. 466, 498 (2000) (Scalia, J., concurring).

27

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 v.

City of Chicago, 561 U.S. 742, 766 (2010) (quotation

marks omitted). “[I]f a Bill of Rights protection is

incorporated, there is no daylight between the federal

and state conduct it prohibits or requires.” Timbs v.

Indiana, 139 S. Ct. 682, 687 (2019).

In both McDonald and Timbs, this Court acknowledged that Apodaca represented an anomaly in the

Court’s otherwise well-established rules requiring

symmetry between federal and incorporated state

rights. And rather than defend the anomaly as a

principled distinction based in law, this Court has

repeatedly characterized Apodaca as “the result of an

unusual division among the Justices, not an endorsement of the two-track approach to incorporation.”

McDonald, 561 U.S. at 765 n.14; see also Timbs, 139

S. Ct. at 687 n.1. Justice Powell’s concurrence therefore

represents “a solitary departure from established

law,” Seminole Tribe of Florida v. Florida, 517 U.S. 44,

66 (1996). Overruling Justice Powell’s approach to

incorporation in Apodaca would not represent a

radical departure for this Court, but rather a natural

extension of the Court’s otherwise uniform incorporation doctrine to the Sixth Amendment’s jury trial right.

Finally, reliance interests do not warrant

upholding Apodaca’s incorporation ruling. While

Apodaca is now nearly fifty years old, not a single

State changed its practices to allow non-unanimous

jury verdicts for felony convictions following that

decision. Moreover, the only two States that allowed

non-unanimous verdicts at the time of Apodaca—

Louisiana and Oregon—have recently moved to join

28

the overwhelming state and federal consensus in favor

of a unanimity requirement: Louisiana amended its

constitution to require unanimity in trials for felonies

committed after January 1, 2019; Oregon seems likely

to do the same in the near future. See supra at 6.

To be sure, because these developments apply only

prospectively, Louisiana and Oregon will continue to

have a substantial interest in defending the validity of

felony convictions for past crimes that were reached

by a non-unanimous jury. But those reliance interests

can be largely protected without reaffirming the

holding from Justice Powell’s concurrence in Apodaca.

In particular, this Court’s retroactivity jurisprudence

imposes substantial barriers on the retroactive

application of new procedural rules and amply

protects the States’ interests in the finality of criminal

judgments. See Teague v. Lane, 489 U.S. 288, 307

(1989) (plurality op.); Griffith v. Kentucky, 479 U.S.

314, 328 (1987). This Court has never applied its

decisions expanding the jury trial right retroactively

to reopen final convictions. 4 And while new constitutional rules generally do apply retroactively to cases

pending on direct review, Griffith, 479 U.S. at 327-28,

preservation and waiver doctrines may preclude the

application of a new rule in any number of individual

cases. See Shea v. Louisiana, 470 U.S. 51, 59 n.4 (1985).

4 See, e.g., Schriro v. Summerlin, 542 U.S. 348, 355-58 (2004)

(rule requiring jury to decide a defendant’s eligibility for the

death penalty does not apply retroactively); Teague, 489 U.S. at

314 (plurality op.) (rule prohibiting racial discrimination in the

use of peremptory challenges does not apply retroactively);

Daniel v. Louisiana, 420 U.S. 31, 32 (1975) (per curiam) (rule

prohibiting exclusion of women from jury venire does not apply

retroactively); DeStefano v. Woods, 392 U.S. 631, 634 (1968)

(incorporation of jury trial right does not apply retroactively).

29

Because other doctrines would thus more directly

address the legitimate reliance interests that Louisiana

or Oregon have in defending the validity of final

convictions, those interests should not compel this

Court to adhere to the controlling view of a single

justice from Apodaca in light of the important constitutional values served by a unanimity requirement.

CONCLUSION

The judgment of the Louisiana Court of Appeal

should be reversed.

Respectfully submitted,

LETITIA JAMES

Attorney General

State of New York

BARBARA D. UNDERWOOD*

Solicitor General

STEVEN C. WU

Deputy Solicitor General

ESTER MURDUKHAYEVA

Assistant Solicitor General

barbara.underwood@ag.ny.gov

June 2019

* Counsel of Record

(Counsel listing continues on next page.)

30

XAVIER BECERRA

AARON D. FORD

P.O. Box 944255

Sacramento, CA 94244

100 North Carson St.

Carson City, NV 89701

KWAME RAOUL

Attorney General

State of Illinois

100 West Randolph St.

Chicago, IL 60601

THOMAS J. DONOVAN, JR.

Attorney General

State of Vermont

109 State Street

Montpelier, VT 05609-1001

DANA NESSEL

MARK R. HERRING

P.O. Box 30212

Lansing, MI 48909

202 North Ninth St.

Richmond, VA 23219

KEITH ELLISON

KARL A. RACINE

Attorney General

State of California

Attorney General

State of Michigan

Attorney General

State of Minnesota

Attorney General

State of Nevada

Attorney General

Commonwealth of Virginia

Attorney General

District of Columbia

102 State Capitol

Suite 650 North

75 Rev. Dr. Martin Luther 441 4th St., NW

King Jr. Blvd.

Washington, DC 20001

St. Paul, MN 55155