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

Louisiana Court of Appeal, Fourth Circuit

__________________

BRIEF OF AMICI CURIAE STATES OF UTAH,

ALABAMA, ALASKA, ARKANSAS, FLORIDA,

GEORGIA, KANSAS, NEBRASKA, OKLAHOMA,

SOUTH DAKOTA, TENNESSEE, TEXAS, WEST

VIRGINIA, AND THE COMMONWEALTH OF

PUERTO RICO SUPPORTING RESPONDENT

__________________

SEAN D. REYES

Utah Attorney General

TYLER R. GREEN*

Utah Solicitor General

THOMAS B. BRUNKER

Deputy Solicitor General

JOHN J. NIELSEN

NATHAN H. JACK

Assistant Solicitors General

350 N. State Street, Suite 230

Salt Lake City, UT 84114-2320

Telephone: (801) 538-9600

Email: tylergreen@agutah.gov

*Counsel of Record

Counsel for Amicus Curiae

State of Utah

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

TABLE OF CONTENTS

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

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . 1

INTRODUCTION AND SUMMARY OF

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I. THE SIXTH AMENDMENT DOES NOT REQUIRE

UNANIMOUS JURY VERDICTS IN THE STATES . . . . . 2

A. History shows that the Sixth Amendment

was not meant to set in stone every commonlaw jury practice . . . . . . . . . . . . . . . . . . . . . . . 2

1. Juries have ancient common-law

origins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

2. Britain’s common-law jury-trial practice

varied in some cases. . . . . . . . . . . . . . . . . . 8

3. Jury practices in the colonies and early

American States also varied from the

common law . . . . . . . . . . . . . . . . . . . . . . . . 9

4. The Framers did not spell out all aspects

of the jury-trial right because State

practice varied so much—and antifederalists targeted this ambiguity during

the ratification debates . . . . . . . . . . . . . . 10

5. James Madison’s first draft of the Sixth

Amendment included the right to a

unanimous jury, but the Senate deleted

that right . . . . . . . . . . . . . . . . . . . . . . . . . 16

ii

B. In light of this history, the Sixth

Amendment’s omitting an express unanimity

requirement means that the Framers and

adopters did not view unanimity as

constitutionally required. . . . . . . . . . . . . . . . 18

II. FEDERALISM COUNSELS DEFERENCE TO STATE

CONTROL O VER S TATE CRIMINAL -JUSTICE

SYSTEMS AND EXPERIMENTATION WITH JURYDECISION RULES . . . . . . . . . . . . . . . . . . . . . . . . . 21

A. The States’ residual sovereignty lets them

craft rules of criminal procedure . . . . . . . . . 22

B. Shackling States to unanimous verdicts will

hinder their ability to improve criminal

justice through experimentation. . . . . . . . . . 26

1. State experimentation can alleviate

nullification . . . . . . . . . . . . . . . . . . . . . . . 27

2. State experimentation can improve the

efficiency of deliberations . . . . . . . . . . . . 29

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

iii

TABLE OF AUTHORITIES

CASES

Anon. Case,

41 Lib. Assisarum 11 (1367). . . . . . . . . . . . . . . . . 5

Apodaca v. Oregon,

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

Bond v. United States,

564 U.S. 211 (2011). . . . . . . . . . . . . . . . . . . . . . . 22

Brewster v. Hetzel,

913 F.3d 1042 (11th Cir. 2019). . . . . . . . . . . . . . 29

Bushell’s Case,

Vaughn 135, 124 Eng. Rep. 1006

(C.P. 1670). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

Duncan v. Louisiana,

391 U.S. 145 (1968). . . . . . . . . . . . . . . . . . 8, 23, 25

Flowers v. Mississippi,

139 S. Ct. 2228 (2019). . . . . . . . . . . . . . . . . . . . . 20

Fournier v. Gonzalez,

269 F.2d 26 (1st Cir. 1959) . . . . . . . . . . . . . . . . . 22

Gregory v. Ashcroft,

501 U.S. 452 (1991). . . . . . . . . . . . . . . . . . . . . . . 22

Hurtado v. California,

110 U.S. 516 (1884). . . . . . . . . . . . . . . . . . . . 24, 25

Johnson v. Louisiana,

406 U.S. 356 (1972). . . . . . . . . . . . . . . . . . . . 24, 26

iv

Kansas v. Ventris,

556 U.S. 586 (2009). . . . . . . . . . . . . . . . . . . . . . . 22

McDonald v. City of Chicago,

561 U.S. 742 (2010). . . . . . . . . . . . . . . . . . . . . . . 23

Oregon v. Ice,

555 U.S. 160 (2009). . . . . . . . . . . . . . . . . . 1, 22, 25

Patterson v. New York,

432 U.S. 197 (1977). . . . . . . . . . . . . . . . . . . . . . . . 1

Patton v. United States,

281 U.S. 276 (1930). . . . . . . . . . . . . . . . . . . . . . . . 9

People v. Barnwell,

162 P.3d 596 (Cal. 2007). . . . . . . . . . . . . . . . . . . 28

People v. Williams,

21 P.3d 1209 (Cal. 2001). . . . . . . . . . . . . . . . . . . 28

Renico v. Lett,

559 U.S. 766 (2010). . . . . . . . . . . . . . . . . . . . . . . . 6

Smith v. Robbins,

528 U.S. 259 (2000). . . . . . . . . . . . . . . . . . . . 22, 23

Spencer v. Texas,

385 U.S. 554 (1967). . . . . . . . . . . . . . . . . . . . . . . 22

Tanner v. United States,

483 U.S. 107 (1987). . . . . . . . . . . . . . . . . . . . . . . 29

United States v. Lakhani,

480 F.3d 171 (3d Cir. 2007) . . . . . . . . . . . . . . . . 30

United States v. Robinson,

872 F.3d 760 (6th Cir. 2017). . . . . . . . . . . . . . . . 29

v

United States v. Thomas,

116 F.3d 606 (2d Cir. 1997) . . . . . . . . . . . . . . . . 28

Williams v. Florida,

399 U.S. 78 (1970). . . . . . . . . . . . . . . . 4, 19, 23, 24

CONSTITUTION AND STATUTES

U.S. Const. art. I, sec. 3, cl. 1-2 . . . . . . . . . . . . . 11, 20

U.S. Const. amend. VI . . . . . . . . . . . . . . . . . . . passim

Ariz. Rev. Stat. § 21-102 . . . . . . . . . . . . . . . . . . . . . 24

Conn. Gen. Stat. § 54-82 . . . . . . . . . . . . . . . . . . . . . 24

Ind. Stat. § 35-37-1-1(b)(2). . . . . . . . . . . . . . . . . . . . 24

The Jones Act, Pub. L. No. 64-368,

39 Stat. 951 (1917) . . . . . . . . . . . . . . . . . . . . 21, 22

Ore. Rev. Stat. §136.450 . . . . . . . . . . . . . . . . . . . . . 24

P.R. Const. art. II, § 11 . . . . . . . . . . . . . . . . . . . . . . 21

Utah Code § 78B-1-104 . . . . . . . . . . . . . . . . . . . . . . 24

RULES

Fed. R. Civil Pro. 48 . . . . . . . . . . . . . . . . . . . . . . . . . 21

Fed. R. Crim. Pro. 23(b) . . . . . . . . . . . . . . . . . . . . . . 28

Fla. R. Crim. Pro. 3.270 . . . . . . . . . . . . . . . . . . . . . . 24

OTHER AUTHORITIES

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

History of Criminal Jury in the United States, 61

U. Chi. L. Rev. 867 (1994) . . . . . . . . . . . . . . . . . . 4

vi

Akhil Reed Amar, Reinventing Juries: Ten

Suggested Reforms, 28 U.C. Davis L. Rev. 1169

(1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Bill of Rights as Proposed, available at

https://bit.ly/2G7MndR . . . . . . . . . . . . . . . . . . . . 17

William Blackstone, Commentaries on the Laws of

England: A Facsimile of the First Edition of 17651769 (Chicago: University of Chicago Press, 1979),

available at https://bit.ly/2XELYKM . . . . . . . . . . . 8

Catherine Drinker Bowen, Miracle at Philadelphia:

The Story of the Constitutional Convention May

to September 1787 (1966) . . . . . . . . . . . . . . . 11, 16

“Samuel Bryan” in The Debate on the Constitution:

Federalist and Antifederalist Speeches, Articles,

and Letters During the Struggle over

Ratification, Vol. 1: September 1787-February

1788 (Library of America 1993) . . . . . . . . . . . . . 13

Centinel II, The Freeman’s Journal, Oct. 24, 1787,

available at https://bit.ly/2Y9VmFC . . . . . . . . . 13

The Congressional Register (Aug. 18, 1789),

available at https://bit.ly/2NT7046 . . . . . . . . . . 17

Kevin Crosby, Bushell’s Case and the Juror’s Soul,

33 J. Legal Hist. 251 (2012) . . . . . . . . . . . . . . . 6, 7

John F. Decker, Legislating New Federalism: The

Call for Grand Jury Reform in the States, 58

Okla. L. Rev. 341 (2005) . . . . . . . . . . . . . . . . . . . 24

vii

Shari Sidman Diamond, et al., Revisiting the

Unanimity Requirement: The Behavior of the

Non-Unanimous Civil Jury, 100 Nw. U. L. Rev.

201 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Donald A. Dripps, The Fourteenth Amendment, The

Bill of Rights, and The (First) Criminal

Procedure Revolution, 18 J. Contemp. Legal

Issues 469 (2009) . . . . . . . . . . . . . . . . . . . . . . . . 10

Encyclopædia Brittanica, Assize, available at

https://www.britannica.com/topic/assize . . . . . . . 5

Encyclopædia Brittanica, Common law, available at

https://www.britannica.com/topic/common-law . . . 3

Encyclopædia Brittanica, United Kingdom: History,

available at https://www.britannica.com/place/

United-Kingdom/Roman-Britian . . . . . . . . . 2, 4, 5

English Bill of Rights (1689) . . . . . . . . . . . . . . . . 4, 14

The Federalist No. 83 (C. Rossiter ed. 1961) (A.

Hamilton) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

David Fellman, The Defendant’s Rights Today 160

(1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

Felix Frankfurter & Thomas Corcoran, Petty

Federal Offenses and the Constitutional

Guaranty of Trial by Jury, 39 Harv. L. Rev. 917

(1926). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 14

Fully Informed Jury Association, About FIJA,

available at https://fija.org/aboutfija/overview.html . . . . . . . . . . . . . . . . . . . . . . . . 27

viii

William Glaberson, For Judges, Lawyers and

Fellow Jurors, the Challenges of Dealing With a

Holdout, N.Y. Times (Nov. 19, 2010),

https://nyti.ms/2MaXmHk . . . . . . . . . . . . . . . . . 29

Michael H. Glasser, Letting the Supermajority Rule:

Nonunanimous Jury Verdicts in Criminal

Trials, 24 Fla. St. U. L. Rev. 659 (1997) . . . . . . 27

Anna Gorman, Holdout Jurors Can Put Legal

System to the Test, L.A. Times (Jun. 18, 2004),

https://lat.ms/2Y15e5w . . . . . . . . . . . . . . . . . . . . 29

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

Problem?, The National Center for State Courts

(Sep. 30, 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Arthur R. Hogue, Orgins of the Common Law

(1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4

Robert F. Holland, Improving Criminal Jury

Verdicts: Learning from the Court-Martial, 97 J.

Crim. L. & Criminology 101 (2006) . . . . . . . . . . 27

James Iredell, North Carolina Ratification

Convention Debates (July 28, 1788) . . . . . . . . . 21

Gary J. Jacobsohn, The Unanimous Verdict: Politics

and the Jury Trial, 1977 Wash. U. L. Q. 39 . . . 27

Journal Notes of the Virginia Ratifying Convention

(June 20, 1788), available at

https://bit.ly/2Gavakj . . . . . . . . . . . . . . . 13, 14, 19

Mark Kadish, Behind the Locked Door of an

American Grand Jury: Its History, its Secrecy,

and its Process, 24 Fla. St. U. L. Rev. 1 (1996) . 10

ix

Susan R. Klein, Independent-Norm Federalism in

Criminal Law, 90 Cal. L. Rev. 1541 (2002) . . . . 26

Wayne R. LaFave, et al., 4 Crim. Proc. (4th ed.) . . 24

Richard Henry Lee to Patrick Henry (Sep. 14,

1789), available at https://bit.ly/2xINlc4 . . . . . . 18

Ethan J. Leib, Supermajoritarianism and the

American Criminal Jury, 33 Hastings Const. L.

Q. 141 (2006) . . . . . . . . . . . . . . . . . . . . . . 26, 27, 30

Eric Levenson & Shachar Peled, Bill Cosby Jurors

Give Conflicting Accounts of Deadlock, CNN

(Jun. 22, 2017), https://tinyurl.com/y5wmknd6. 30

Thomas Lloyds Notes of the Pennsylvania

Ratification Convention (Dec. 7, 1787), available

at https://bit.ly/2KM1NGt . . . . . . . . . . . 12, 13, 21

James Madison’s Notes of the Constitutional

Convention (Sep. 12, 1787), available at

https://bit.ly/2KQpBZw. . . . . . . . . . . . . . . . . 10, 11

Madison’s Resolution for Amendments to the

Constitution (June 8, 1789), available at

https://bit.ly/2XW9QsV . . . . . . . . . . . . . . . . . . . . 16

James Madison to Edmund Pendleton (Sep. 14,

1789), available at https://bit.ly/2GaYneS . . . . . 17

James Madison to Edmund Pendleton (Sep. 23,

1789), available at https://bit.ly/2XDbMqK . . . . 17

Magna Carta (1215) . . . . . . . . . . . . . . . . . . . . . . . 3, 14

Pauline Maier, Ratification: The People Debate the

Constitution, 1787-1788 (2010) . . . . 12, 13, 15, 16

x

Robert von Moschzisker, Trial by Jury

(2d ed. 1930) . . . . . . . . . . . . . . . . . . . . . 2, 3, 4, 5, 6

New York Ratification Convention Debates (July

17, 1788)—New York Advertiser (July 21, 1788),

available at https://bit.ly/32hlZYy . . . . . . . . . . . 14

New York Ratification Convention Debates (July

17, 1788)—New York Advertiser (July 22, 1788),

available at https://bit.ly/2JHl7Ux. . . . . . . . . . . 14

North Carolina Ratification Convention Debates

(July 28, 1788), available at

https://bit.ly/2XHBNVP . . . . . . . . . . . . . . . . . . . 15

Edward P. Schwartz and Warren F. Schwartz,

Decisionmaking by Juries under Unanimity and

Supermajority Voting Rules, 80 Geo. L. J. 775

(1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

John Simerman & Gordon Russell, From ACLU to

NRA: Campaign for unanimous juries targeted

Louisiana voters across the spectrum, The

Advocate (Nov. 7, 2018), https://bit.ly/2KCTkXf

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Gary J. Simson, Jury Nullification in the American

System: A Skeptical View, 54 Tex. L. Rev. 488

(1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Richard Dobbs Spaight, North Carolina Ratification

Convention Debates (July 28, 1788), available at

https://bit.ly/2XHBNVP . . . . . . . . . . . . . . . . . . . 10

The Cosby Trial That Ended in a Hung Jury Cost

$219,000, Associated Press (Jul. 13, 2017),

https://tinyurl.com/y25fpztr . . . . . . . . . . . . . . . . 30

xi

Steven M. Warshawsky, Opposing Jury

Nullification: Law, Policy, and Prosecutorial

Strategy, 85 Geo. L.J. 191 (1996) . . . . . . . . . . . . 28

1

INTEREST OF AMICI CURIAE

Each State has unique procedures for charging and

trying criminal defendants. Some file criminal

complaints; some use grand juries; others, some mix of

the two. Some States use twelve-person juries for all

felonies, while some do so only for death cases; still

others use six- or eight-person juries. Most relevant

here, most States—but not all—require unanimous

verdicts.

States have strong sovereign interests in shaping

and adapting those aspects of their criminal justice

systems to what each judges will best serve its citizens.

See Oregon v. Ice, 555 U.S. 160, 170 (2009) (“Beyond

question, the authority of States over the

administration of their criminal justice systems lies at

the core of their sovereign status.”); Patterson v. New

York, 432 U.S. 197, 201 (1977) (“[W]e should not lightly

construe the Constitution so as to intrude upon the

administration of justice by the individual States.”).

Ensuring continued flexibility for States to experiment

with different approaches to the jury right will produce

more successful models to deal with crime.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Amici agree with Louisiana that the result of

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

and that this Court should affirm. The historical record

confirms that the Sixth Amendment was not meant to

require unanimous verdicts. This Court’s holding

should adhere to Apodaca’s judgment, leaving the door

open for States to experiment with non-unanimous

2

juries as they seek to respond to local concerns and

better their criminal justice systems.

ARGUMENT

I. THE SIXTH AMENDMENT DOES NOT REQUIRE

UNANIMOUS JURY VERDICTS IN THE STATES.

A. History shows that the Sixth Amendment

was not meant to set in stone every

common-law jury practice.

The vast historical record about who could serve as

a juror, which issues juries decided, and how jurors

reached their verdicts shows that each of those

practices has varied widely over time.

1. Juries have

origins.

ancient

common-law

Classical Greece, republican Rome, and medieval

European countries all used forms of juries. Robert von

Moschzisker, Trial by Jury 11-26 (2d ed. 1930). The

number of jurors on a jury varied from five to five

hundred or more. Id. Jurors consisted entirely of men,

usually property owners, with votes sometimes

weighted by class. Id. They judged both law and fact.

Id. And they decided cases sometimes by unanimous

vote, sometimes by majority, and sometimes by some

other rule. Id.

From the beginning of the common era to the

middle ages, England was ruled in turns by Celtic

Britons, Romans, Germanic tribes (Angles and Saxons),

Vikings, and French-Germans (Normans). See

generally Encyclopædia Brittanica, United Kingdom:

3

History, available at https://www.br itannica.com/place/

United-Kingdom/Roman-Britian, last visited August

15, 2019; see also Moschzisker at 21-22. Because so

many different peoples with different legal traditions

ruled England as the jury-trial right developed, its

exact origins are unclear. Moschzisker at 60-61.

What is clear is that, like the common law itself, the

jury-trial right in England varied over time. Between

the end of Roman rule in the early fifth century and the

Norman conquest in the late eleventh, England did not

have a common law—rules that applied to all subjects

generally—but was governed largely by local custom.

See Arthur R. Hogue, Origins of the Common Law 18890 (1986); see also Encyclopædia Brittanica, Common

law, available at https://www.britannica.com/topic/com

mon-law (last visited August 15, 2019). Those customs

included trial by ordeal and combat. Moschzisker at 3840, 388. They also included convening panels of

freemen—sometimes nobility, sometimes not, and of

various sizes—to settle legal disputes. Id. at 27-31.

The common law started to develop in earnest

during the reign of Henry II—father of Kings Richard

and John—in the mid-to-late twelfth century. Hogue at

34-35. Henry wanted more control over his subjects,

and got it in part by requiring them to settle disputes

in royal courts. Id. at 37-38. As trial by ordeal and

combat waned, trial by jury in royal courts increased,

and was “well established as a matter of right” by the

end of the thirteenth century. Id. at 40-46; see also

Magna Carta (1215) (“No free man shall be seized or

imprisoned . . . except by the lawful judgement of his

equals or by the law of the land.”).

4

Early common-law jurors were witnesses chosen for

their knowledge of the case facts. Hogue at 189; see also

Moschzisker at 46, 51. They also both brought charges

and decided the case. David Fellman, The Defendant’s

Rights Today 160 (1976). But over time, jurors came to

be chosen for their ignorance, rather than knowledge,

of a case. Moschzisker at 58. And the charging and

trying functions were split between “grand” (large)

juries and “petit” (small) juries. Id.

Petit-jury size varied over time, but eventually

settled at twelve jurors. Id. at 160; see also Williams v.

Florida, 399 U.S. 78, 89-90 (1970) (discussing theories

of why twelve chosen). Those jurors had to be propertyowning men. See, e.g., English Bill of Rights (1689)

(“That jurors ought to be duly impanelled and

returned, and jurors which pass upon men in trials for

high treason ought to be freeholders[.]”). The male and

property requirements continued in the colonies. Albert

W. Alschuler & Andrew G. Deiss, A Brief History of

Criminal Jury in the United States, 61 U. Chi. L. Rev.

867, 877 (1994) (“Every state limited jury service to

men; every state except Vermont restricted jury service

to property owners or taxpayers; three states permitted

only whites to serve; and one state, Maryland,

disqualified atheists.”).

A vicinage requirement—that jurors had to be

drawn from the area in which the crime

occurred—appears to have been a holdover from the

jurors-as-witnesses days and likely developed as a

matter of convenience. Cf. Hogue at 163 (describing

thirteenth-century efforts to make trials more

convenient for litigants and jurors by providing for

5

local court hearings rather than requiring trial in

London). It was later seen as preventing oppression by

ensuring that defendants were spared travel to distant

cities to make their case without easy access to

evidence and witnesses. See Fellman at 200-01.

The unanimity rule, in turn, traces back to a 1367

case rejecting an 11-1 verdict. Id. at 160 (citing Anon.

Case, 41 Lib. Assisarum 11 (1367)). The reasons for it

are “shrouded in obscurity,” but theories abound.

Apodaca, 406 U.S. at 407 n.2 (lead opinion of White,

J.). It could have existed to “compensate for a lack of

other rules” ensuring a fair trial. Id. It might have been

a holdover from the witness-juror trials in “assize”

courts. This was an ancient analogue to frontier-era

circuit-riding in which courts would periodically

convene in areas outside London. See generally

Encyclopædia Brittanica, Assize, available at

https://www.britannica.com/topic/assize (last visited

August 15, 2019). If the twelve jurors could not agree,

the court would “afforce” (strengthen) the assize with

more members until twelve of however many there

were could agree. Apodaca, 406 U.S. at 407 n.2; see also

Moschzisker at 50-51. When afforcement fell into

disuse, the unity of twelve—so the theory

goes—remained. Apodaca, 406 U.S. at 407 n.2. It might

have been left over from the medieval concept that

“there could be only one correct view of the facts” and

the resulting practice of prosecuting dissenting

witness/jurors for perjury. Id. Finally, the unanimity

requirement might have stemmed from a concern that

the verdict represented a voice of a community or the

country, and that “just as a corporation can have but

one will, so a country can have but one voice.”

6

Moschzisker at 56 (cleaned up); see also Apodaca, 406

U.S. at 407 n.2 (similar).

Wherever it came from, the unanimity rule was a

convenient “line of least resistance” for judges, who

were spared “so much trouble” of finding facts,

enduring public backlash over unpopular verdicts, or

suffering cognitive dissonance over judging guilt at all.

Moschzisker at 56; see also Kevin Crosby, Bushell’s

Case and the Juror’s Soul, 33 J. Legal Hist. 251, 253-54

(2012) (discussing Christian prohibition on judging

others and judicial efforts to pass the responsibility to

juries).

Unanimity was not always achieved through

thoughtful deliberation. Common-law courts “went to

great lengths to ensure the jury reached a verdict.”

Renico v. Lett, 559 U.S. 766, 780 (2010) (Stevens, J.,

dissenting). These included loading hung juries “into

oxcarts and carry[ing] them from town to town until a

judgment bounced out,” and holding jurors “de facto

prisoners until they achieved unanimity.” Id. (cleaned

up); see also Moschzisker at 55 (explaining common law

practice of locking up jurors and depriving them of food

and drink until they reached a verdict). Deadlock-based

mistrials probably did not exist. Renico, 559 U.S. at

780.

Though judges could coerce jurors into issuing

verdicts, jurors could not be punished for delivering a

verdict the judge did not like, so long as the verdict

represented their honest convictions. See Bushell’s

Case, Vaughn 135, 124 Eng. Rep. 1006 (C.P. 1670).

Edward Bushel was a juror in the trial of William Penn

and William Mead, who were charged with unlawful

7

assembly and other offenses for holding a Quaker

worship service on a London street. See id. at 1007; see

also Crosby at 257. When the jury returned a verdict on

a lesser offense, the judge sent them back to reconsider.

Id. The jury then acquitted, but the judge was still not

satisfied, issuing a warning: “Gentlemen, You shall not

be dismissed till we have a verdict that the court will

accept; and you shall be locked up, without meat,

drink, fire, and tobacco; . . . we will have a verdict, by

the help of God, or you shall starve for it.” Id. at 257.

Starve they did, but convict they did not. After the

court finally accepted the acquittal, the jurors were

imprisoned for contempt until they could pay a fine. Id.

Some of the jurors, including Bushel, refused to pay

and filed for a writ of habeas corpus in the Court of

Common Pleas. Id. The court granted the writ and

vacated the fines and imprisonment, explaining that if

judges could require juries to return a particular

verdict, then “what either necessary or convenient use

can be fancied of juries, or to continue tryals by them at

all?” Bushell’s Case, 124 Eng. Rep. at 1010.

Some cite Bushell’s Case as evidence that jurors

were free from coercion in reaching their verdicts. See

Fellman at 160 & n.4. But Bushell’s Case did not

address the validity of underlying verdict; it addressed

whether the jurors could suffer for issuing a verdict

that the judge did not like. As shown, jurors were still

subject to various forms of coercion. For far too long, to

be sure—but the common law allowed it.

8

2. Britain’s common-law jury-trial practice

varied in some cases.

By the time he wrote his famous commentaries in

the late 1760s, Blackstone summed up what he

believed the common-law jury-trial right required:

grand jury indictment, a petit jury of 12 propertyowning men, who were drawn from the county in which

the crime occurred, and who issued a unanimous

verdict. William Blackstone, Commentaries on the

Laws of England: A Facsimile of the First Edition of

1765-1769 (Chicago: University of Chicago Press,

1979), 4:298-307; 317-19; 342-50; 352-55; available at

https://bit.ly/2XELYKM (last visited August 15, 2019).

But even then, those requirements did not all apply

to all criminal cases. When the list of non-capital

crimes began to expand starting in the fourteenth

century, guaranteeing jury trials for all offenses

became increasingly costly. Felix Frankfurter &

Thomas Corcoran, Petty Federal Offenses and the

Constitutional Guaranty of Trial by Jury, 39 Harv. L.

Rev. 917, 923-26 (1926). So Parliament permitted

justices of the peace to decide non-capital cases without

a jury. Id. This tradition carried over to the colonies.

Id. at 932, 934-35; see also Duncan v. Louisiana, 391

U.S. 145, 159-60 & n.31 (1968). The Crown also could

file an information rather than seek grand-jury

indictment in misdemeanor cases. Blackstone,

Commentaries at 4:253.

9

3. Jury practices in the colonies and early

American States also varied from the

common law.

While the colonies certainly adopted the common

law, they did not do so wholesale, but instead adapted

it to their own circumstances and preferences.

Frankfurter & Corcoran at 935 (“Then followed the

task of adapting English law to American soil; the old

material had to be transformed, not merely

transplanted.”). For example, at common law, a

defendant could not waive the right to jury trial or any

other right meant to protect him. Patton v. United

States, 281 U.S. 276, 306 (1930). But jury trial waiver

“was by no means unknown” in the colonies. Id.

And the colonies’ jury-trial practices sometimes

varied from Blackstone’s list. Frankfurter & Corcoran

at 936 (“Different environments evolved different

applications of trial by jury and its limits.”). The

Carolinas, Connecticut, and Pennsylvania allowed

majority verdicts in the 1600s, though unanimity later

“became the accepted rule.” Apodaca, 406 U.S. at 408

n.3. But only six eighteenth century colonies/States

explicitly provided for unanimity: Delaware, Maryland,

North Carolina, Pennsylvania, Vermont, and Virginia.

See id. (citing sources).1 Georgia provided that the right

1

The Apodaca court did not include Delaware as specifically

requiring unanimity, likely because it cited to the 1792 version of

Delaware’s constitution, which replaced it with a “heretofore”

provision. See Apodaca, 406 U.S. at 408 n.3. But as Louisiana

points out, the 1776 Delaware Bill of Rights specifically required

unanimity. Resp. Br. at 9-10. Apodaca also did not include

Maryland, but Louisiana correctly points out that its 1776

constitution expressly required unanimity. Resp. Br. at 10.

10

would reflect the common law, and Kentucky and

South Carolina similarly stated that the right would

remain “as heretofore.” Id.

Most appear to have used grand juries. Mark

Kadish, Behind the Locked Door of an American Grand

Jury: Its History, its Secrecy, and its Process, 24 Fla. St.

U. L. Rev. 1, 9-10 (1996). But others went their own

way. For example, both before and after independence,

the difficulties of summoning full grand juries led

Connecticut to use individual grand jurors instead.

Donald A. Dripps, The Fourteenth Amendment, The Bill

of Rights, and The (First) Criminal Procedure

Revolution, 18 J. Contemp. Legal Issues 469, 478

(2009). And Vermont often prosecuted felonies by filing

informations. Id.

4. The Framers did not spell out all aspects

of the jury-trial right because State

practice varied so much—and antifederalists targeted this ambiguity

during the ratification debates.

During the 1787 Constitutional Convention, jury

trial “took up a considerable time” of the discussion.

Richard Dobbs Spaight, North Carolina Ratification

Convention Debates (July 28, 1788), available at

https://bit.ly/2XHBNVP (last accessed August 15,

2019). Toward the end of the convention, Hugh

Williamson from North Carolina “observed to the

House that no provision was yet made for juries in Civil

cases and suggested the necessity of it.” James

Madison’s Notes of the Constitutional Convention (Sep.

12, 1787), available at https://bit.ly/2KQpBZw (last

visited August 15, 2019). Nathaniel Gorham from

11

Massachusetts said that because it would be impossible

to describe which civil cases required juries and which

did not, it should be left to the people’s representatives.

Id. Fellow Massachusetts delegate Elbridge Gerry

disagreed, saying that juries were necessary to “guard

ag[ainst] corrupt Judges.” Id. George Mason of Virginia

agreed that line-drawing would be a problem, but

moved to draft a bill of rights that would protect the

“general principle.” Id. On Gerry’s motion and Mason’s

second, the committee voted on appointing a committee

to draft a bill of rights, but not a single state supported

it. Id.2

Today, that sound rejection seems “extraordinary,”

but most of the delegates had a different view.

Catherine Drinker Bowen, Miracle at Philadelphia:

The Story of the Constitutional Convention May to

September 1787 244 (1966). As they saw it, they were

setting up a central government with limited powers by

saying the few things that it could do, so enumerating

what it could not do seemed not only unnecessary but

impractical, even dangerous. Id. at 245-46.

Still, the proposed Constitution protected the

jury-trial right in Article III, section 2: “The Trial of all

Crimes, except in Cases of Impeachment, shall be by

Jury; and such Trial shall be held in the State where

the said Crimes shall have been committed.”

2

Mason and Gerry would later refuse to sign the proposed

constitution. James Madison’s Notes of the Constitutional

Convention (Sep. 17, 1787), available at https://bit.ly/30Cx0SR

(last visited August 15, 2019).

12

As state conventions debated whether to adopt the

proposed Constitution, anti-federalist calls for a bill of

rights—and for better jury-trial protections in

particular—grew. In the six ratifying conventions for

which records are available,3 two general criticisms

arose on the jury trial right: (1) that the Article III

criminal jury protection was not specific enough; and

(2) that there was no bill of rights to protect the civil

jury-trial right.

Pennsylvania. Two antifederalists—William Findley

and Robert Whitehill—raised the civil-jury issue in the

Pennsylvania convention. They quoted Blackstone,

praising juries as necessary guardians against tyranny.

Pauline Maier, Ratification: The People Debate the

Constitution, 1787-1788 112-13 (2010). Federalist

James Wilson responded that federal civil jury-trial

protections should be left to Congress because “no

particular mode of trial by jury could be discovered that

would suit” all of the States. Thomas Lloyds Notes of

the Pennsylvania Ratification Convention (Dec. 7,

1787), available at https://bit.ly/2KM1NGt (last visited

August 15, 2019). “The manner of summoning jurors,

their qualifications, of whom they should consist, and

the course of their proceedings are all different[.]” Id.

It was thus “impracticable, by any general regulation,

3

Delaware, New Jersey, and Georgia quickly adopted the

Constitution with little debate and no published proceedings.

Pauline Maier, Ratification: The People Debate the Constitution,

1787-1788 122-24 (2010). The records from Connecticut, New

Hampshire and South Carolina exist, but are too sparse to be

helpful on this subject. Id. at 137-38, 218, 250. Rhode Island

rejected the constitution (it appears) largely for economic reasons.

Id. at 223-25.

13

to have given satisfaction to all.” Id.; see also The

Federalist No. 83, pp. 501-04 (C. Rossiter ed. 1961) (A.

Hamilton) (discussing differences in State civil jurytrial practices).

Anti-federalist Samuel Bryan—under the

pseudonym “Centinel”4—believed Wilson’s response

inadequate, and penned a response in a prominent

Philadelphia newspaper. He said that failing to declare

the common-law specifics or provide a bill of rights

meant that the 12-man, vicinage, and unanimity

requirements would not be protected in either civil or

criminal cases. Centinel II, The Freeman’s Journal,

Oct. 24, 1787, available at https://bit.ly/2Y9VmFC (last

visited August 15, 2019).

Virginia. Patrick Henry raised both arguments in

the Virginia convention. After quoting Blackstone, he

warned that if “a people lost their right to trial by

jury … all others would follow.” Maier at 289. The

proposed Constitution failed not only to protect the civil

jury-trial right, but “so vaguely and equivocally

provided for” a criminal trial right that he “had rather

it had been left out altogether”—in particular, because

it did not permit challenges to partial jurors. Journal

Notes of the Virginia Ratifying Convention (June 20,

1788), available at https://bit.ly/2Gavakj (last visited

August 15, 2019). Henry “despise[ed] and abhor[ed]” a

proposed government that “takes away the trial by jury

4

See “Samuel Bryan” in The Debate on the Constitution:

Federalist and Antifederalist Speeches, Articles, and Letters

During the Struggle over Ratification, Vol. 1: September 1787February 1788 (Library of America 1993).

14

in civil cases, and does worse than take it away in

criminal cases.” Id.

Federalists Edmund Pendleton and John Marshall

responded. Pendleton said that by saying “trial by

jury,” “every incident will go along with it,” such as the

vicinage requirement. Id. Marshall added that neither

Magna Carta, the English Bill of Rights, nor the

Virginia Constitution included the detail that Henry

wanted, yet the right was still secure. Id.

Patrick’s critique and Marshall’s response typified

debates about the scope of the right to jury trial under

the Constitution. See Frankfurter & Corcoran at 970

(discussing debate between those who worried that

federal right would not include common-law incidents

such as unanimity, and those who “assured the

country” that it would). Neither side appeared to

convince the other.

New York. Melancton Smith objected to the

proposed Constitution in the New York convention

because it did not make “explicit security … for Trial by

jury in common law [civil] cases, and the ancient and

usual mode of trial in criminal matters is not secured.”

New York Ratification Convention Debates (July 17,

1788)—New York Advertiser (July 21, 1788), available

at https://bit.ly/32hlZYy (last visited August 15, 2019).

He proposed a conditional ratification, requiring

additions to (among other things) the criminal jury

trial right, such as the grand jury, unanimity, and

vicinage requirements. See New York Ratification

Convention Debates (July 17, 1788)—New York

Advertiser (July 22, 1788), available at

https://bit.ly/2JHl7Ux (last visited August 15, 2019).

15

Though his conditional-ratification proposal did not

carry the day, the delegates ratified with the

understanding that a bill of rights would be added soon

after the new government was up and running. Maier

at 385-93.

North Carolina. Joseph McDowell raised both the

lack of civil jury-trial rights and the inadequate

protection of the criminal right—in particular, the lack

of an express vicinage requirement. North Carolina

Ratification Convention Debates (July 28, 1788),

available at https://bit.ly/2XHBNVP (last visited

August 15, 2019). James Iredell replied generally with

the idea that a government of limited rights did not

require enumerated limitations, and specifically that it

was “impracticable” to account for all the modes of civil

jury trials in the States. Id.

Massachusetts. Eleazar Brooks raised the civil jurytrial issue, and Caleb Strong responded that “state

practices were so different that the convention thought

it best to let Congress find a way of settling the issue.”

Maier at 190. There appears to be no record of

discussion on the criminal right.

Maryland. After the Maryland convention ratified,

the dissenters published a list of proposed

amendments, which included the right to jury trial. Id.

at 245.

16

5. James Madison’s first draft of the Sixth

Amendment included the right to a

unanimous jury, but the Senate deleted

that right.

First in Massachusetts and then in New York and

Virginia, the federalists began to win over some

antifederalists by agreeing that a bill of rights would be

appropriate—albeit after ratification. See Bowen at

288-89, 304-06.

Representative James Madison set out to fulfill this

promise during the first Congress. Maier at 441, 443

(Madison’s congressional campaign statements); id. at

446 (discussing Madison’s difficulty of convincing

others in the House to consider amendments). He

eventually produced nine proposed amendments, the

seventh of which addressed both criminal and civil jury

trials. It would amend Article III section 2 to read that

criminal trials “shall be by an impartial jury of

freeholders of the vicinage, with the requisite of

unanimity for conviction, of the right of challenge,”

“presentment or indictment by a grand jury” in felony

cases, “and other accustomed requisites.” Madison’s

Resolution for Amendments to the Constitution (June

8, 1789), available at https://bit.ly/2XW9QsV (last

visited August 15, 2019). And it provided that civil

trials “ought to remain inviolate.” Id.

Madison’s proposal thus specifically addressed the

antifederalist concerns voiced during ratification—

protection for the civil right, and greater specific

protections for the criminal right—and fulfilled the

promise to rectify them. The House passed this

language without amendment, and sent it to the

17

Senate. The Congressional Register (Aug. 18, 1789),

available at https://bit.ly/2NT7046 (last visited August

15, 2019).

The Senate in those days kept its proceedings

secret, so there is no record of its debates. Maier at 453.

But what passed the Senate stripped almost all

specifics from Madison’s proposal. In what would

eventually become the Sixth Amendment, criminal

defendants were guaranteed the right to trial by “an

impartial jury of the State and district wherein the

crime shall have been committed.” Bill of Rights as

Proposed, available at https://bit.ly/2G7MndR (last

visited August 15, 2019); see also Maier at 454

(describing conference committee changes).

Madison was disappointed that the Senate had

removed so many of the details in the criminal jurytrial right. He aired his frustration in two letters to

Edmund Pendleton. In the first, he lamented that the

Senate “str[uck], in [his] opinion at the most salutary

articles,” including the vicinage requirement, “which

has produced a negative on” his proposed jury trial

right. James Madison to Edmund Pendleton (Sep. 14,

1789), available at https://bit.ly/2GaYneS (last visited

August 15, 2019). His second letter largely echoed the

first, but added that “[i]t was proposed to insert after

the word juries—‘with the accustomed requisites’—

leaving the definition to be construed according to the

judgment of professional men.” But “[e]ven this could

not be obtained” because State practice differed so

much. James Madison to Edmund Pendleton (Sep. 23,

1789), available at https://bit.ly/2XDbMqK (last visited

August 15, 2019).

18

Not all the senators were happy either. Senator

Richard Henry Lee was “outraged at how the Senate

had weakened the amendments proposed by the

House,” including the “much loosened” right to jury

trial in criminal cases. Maier at 454; see also Richard

Henry Lee to Patrick Henry (Sep. 14, 1789), available

at https://bit.ly/2xINlc4 (last visited August 15, 2019).

Senator William Grayson thought that the

amendments so “mutilated & gutted” the original

proposals as to be “good for nothing.” Maier at 455. And

at least one State Senate—Virginia’s—when debating

the proposed amendments thought several proposed

rights, including that Sixth Amendment, fell “far short”

of what was needed. Id. at 460.

B. In light of this history, the Sixth

Amendment’s omitting an express

unanimity requirement means that the

Framers and adopters did not view

unanimity as constitutionally required.

The historical record confirms that the lack of an

express unanimity requirement in the Sixth

Amendment is significant.

The Sixth Amendment protects an array of rights

for criminal defendants, including the right to trial in

“all criminal prosecutions” by “an impartial jury.” U.S.

Const. amend. VI. Petitioner and some of his amici

argue that “impartial jury” means “impartial

unanimous jury” because “jury” carried the old

common-law soil with it, which included unanimity.

See, e.g., Pet.Br. 18-25. By logical extension, this would

mean “jury” also includes the grand-jury, 12-member,

vicinage, property-owner, and male requirements.

19

“Jury” is not so capacious a term. As the history

above shows, the lack of a uniform approach among the

States at the time of ratification and the Senate’s

striking all the particulars in Madison’s original list

confirm that the ratifiers knew that the contours of the

right would vary somewhat state-to-state.

This Court has approved this approach with other

common-law requirements. In Williams, it held that

“jury” does not invariably mean 12-person panel

because the number was a historical accident that was

“unrelated to the great purposes which gave rise to the

jury in the first place.” 399 U.S. at 89-90. While no less

an authority than John Marshall believed that saying

“jury” would necessarily carry on all of the common-law

specifics, Journal Notes of the Virginia Ratifying

Convention (June 20, 1788), available at

https://bit.ly/2Gavakj (last visited August 15, 2019),

this Court squarely rejected that reasoning in

Williams. 399 U.S. at 91. Indeed, Williams went even

further and found the Senate deletions significant. Id.

at 96. Though this Court declined to “divine precisely

what the word ‘jury’ imported to the” ratifying

generation, it concluded that there was no evidence

that they made an “explicit decision to equate the

constitutional and common-law characteristics of the

jury.” Id. at 98.

Justice White’s plurality Apodaca opinion used

similar reasoning and history to conclude that

unanimity was not likely part of the Sixth Amendment

guarantee, but declined to hold it. 406 U.S. at 409-10.

This Court should take that step now and hold that

the Senate’s deleting the explicit common-law

20

requirements—and the people’s adopting the nonspecific right anyway—shows that the Sixth

Amendment was designed to leave the jury-trial-right

details to Congress and the States. The people knew

how to provide more specific protections for the jurytrial right; they did so in several state constitutions.

But they expressly declined to make the common-law

practice of unanimity part of the Sixth Amendment.

Though the Senate proceedings are unavailable, its

removing most of Madison’s specific list shows that the

Senate, and later the people, wanted the Sixth

Amendment to depart from the common law. The

desire to account for a wide variety of then-present and

future practices is even more apparent when

considering the different institutional role that the

Senate played at the time. Before the ratification of the

Seventeenth Amendment in 1913, State legislatures

chose Senators. See U.S. Const. art. I, sec. 3, cl. 1-2. At

the time it adopted the Sixth Amendment, the Senate

represented the States as States, and would have had

a strong interest in protecting a variety of State

practices.

The Fourteenth Amendment did not alter any of

this. To the extent that the people at that time wanted

to alter State jury-trial practices, it would have been to

allow blacks to participate. See Flowers v. Mississippi,

139 S. Ct. 2228, 2239-40 (2019).

Finally, given the historical practice of gaining

unanimity by denying jurors food, drink, and other

necessities, it was perfectly reasonable for Oregon and

Louisiana to conclude that it would be better to permit

21

non-unanimous verdicts than to get unanimity by any

means necessary.

II. FEDERALISM COUNSELS DEFERENCE TO STATE

C ONTROL O VER S TATE C RIMINAL -J USTICE

SYSTEMS AND EXPERIMENTATION WITH JURYDECISION RULES.

If history shows us anything, it’s that the Framers

did not reduce the right to a jury trial to an

enumerated list precisely so the people could decide

what the right should include. Rather than set

particular features in stone, the drafters saw fit to

construct it “by law, as that law when found injudicious

can be easily repealed.” James Iredell, North Carolina

Ratification Convention Debates (July 28, 1788).

Because “time and experience were not possessed by

the Convention,” they left the right “to be particularly

organized by the legislature.” Thomas Lloyds Notes,

supra at 12.

The absence of explicit jury features in the

Constitution meant Congress could experiment. And it

has. For example, Congress has elected to permit 6member juries in civil cases. Fed. R. Civil Pro. 48. And

Congress approved a non-unanimous verdict rule for

felony prosecutions in the Puerto Rico Constitution. See

P.R. Const. art. II, § 11 (establishing “verdict by

majority vote” of at least 9 of 12 jurors).5 As co-equal

5

Nothing in the laws governing Puerto Rico before its 1952

Constitution required unanimous verdicts, either. To take just one

example, in 1917, Congress enacted the Jones Act, Pub. L. No. 64368, 39 Stat. 951 (1917), which extended United States citizenship

to Puerto Ricans and enacted a bill of rights establishing, among

other things, the rights to assistance of counsel, a speedy and

22

sovereigns, the States should have the same

opportunity as Congress to experiment with the jurytrial right in both civil and criminal cases.

This Court recognizes “numerous advantages” from

deferring to States. Gregory v. Ashcroft, 501 U.S. 452,

458 (1991). Reading the Sixth Amendment in light of

the history above captures many of these benefits of

federalism—specifically, preserving “the integrity,

dignity, and residual sovereignty of the States,” Bond

v. United States, 564 U.S. 211, 221 (2011), and allowing

“for more innovation and experimentation in

government.” Gregory, 501 U.S. at 458.

A. The States’ residual sovereignty lets them

craft rules of criminal procedure.

Federalism pervades much of this Court’s criminal

jurisprudence. This Court long ago declared, and has

frequently affirmed, that the Constitution “has never

been thought” to “establish this Court as a rule-making

organ for the promulgation of state rules of criminal

procedure.” Spencer v. Texas, 385 U.S. 554, 564 (1967);

see also Kansas v. Ventris, 556 U.S. 586, 594 n.* (2009);

Smith v. Robbins, 528 U.S. 259, 274 (2000). States have

“historical dominion” over “the development of their

penal systems.” Ice, 555 U.S. at 170.

public trial, and due process of law, along with protections from

double jeopardy. Notably absent: the Jones Act did not impose a

unanimity requirement. See also Fournier v. Gonzalez, 269 F.2d

26, 29 (1st Cir. 1959) (“If, as we hold, there was no constitutional

guaranty of a unanimous jury verdict before 1952, it seems clear,

a fortiori, that no such federal right arose in 1952 or thereafter.”).

23

To be sure, federalism and incorporation sometimes

conflict. While federalism generally recognizes a State’s

authority to act on behalf of its citizens, the Fourteenth

Amendment imposes on States a minimum threshold

of protection for individual rights. But even when the

Fourteenth Amendment limits state action, it “by no

means eliminates” the States’ “ability to devise

solutions to social problems that suit local needs and

values.” McDonald v. City of Chicago, 561 U.S. 742, 785

(2010).

In Smith, for example, this Court highlighted its

“established practice, rooted in federalism, of allowing

the States wide discretion, subject to the minimum

requirements of the Fourteenth Amendment, to

experiment with solutions to difficult problems of

policy.” 528 U.S. at 273. It decried converting its

suggested approach into a “straitjacket,” and avoided

“imposing a single solution on the States from the top

down.” Smith, 528 U.S. at 270, 273, 275 (cleaned up).

The right to an impartial jury should be no

different. Duncan itself, which incorporated the right

to a jury in criminal trials, recognized that its decision

was “very unlikely” to “require widespread changes in

state criminal processes.” Duncan, 391 U.S. at 158

n.30. The Court continued this theme in Williams when

it rejected as “blind formalism” the notion that the

Sixth Amendment “forever codif[ies] a feature so

incidental to the real purpose of the Amendment.”

Williams, 399 U.S. at 102-03. Instead, because

“[l]egislatures may well have their own views about the

relative value” of jury size, the Court saw fit to “leave

these considerations to Congress and the States,

24

unrestrained by an interpretation of the Sixth

Amendment that would forever dictate the precise

number that can constitute a jury.” Id. at 103. And in

Apodaca and Johnson, Justice Powell, as the deciding

vote, reasoned that States “should have the right to

decide for themselves what shall be the form and

character’” of trial procedures, including “‘whether the

verdict must be unanimous or not.” Johnson v.

Louisiana, 406 U.S. at 356, 372 (1972) (Powell, J.,

concurring) (cleaned up).

States, exercising this sovereignty, have relied on

this Court’s proclamation nearly a half-century ago

that constitutional and common-law jury

characteristics don’t fully equate. See Williams, 399

U.S. at 99. They have secured thousands of convictions

through systems that depart from the common-law

jury. Some States permit non-unanimous jury verdicts.

See Ore. Rev. Stat. §136.450. Other States empanel

juries with fewer than 12 members. See, e.g., Ariz. Rev.

Stat. § 21-102; Conn. Gen. Stat. § 54-82; Fla. R. Crim.

Pro. 3.270; Ind. Stat. § 35-37-1-1(b)(2); Utah Code

§ 78B-1-104. Half the States don’t require grand juries

for indictments, and almost two-thirds permit

prosecution by either information or indictment. See

John F. Decker, Legislating New Federalism: The Call

for Grand Jury Reform in the States, 58 Okla. L. Rev.

341, 354 (2005); Wayne R. LaFave, et al., 4 Crim. Proc.

§ 14.2(d) (4th ed.). Though many viewed all three of

those common-law features as essential at the time of

the Founding, see Part I, this Court has refused to

require States to comply with all of them. Apodaca, 406

U.S. at 410-11 (unanimity); Williams, 399 U.S. at 10203 (12-member jury); Hurtado v. California, 110 U.S.

25

516, 538 (1884) (grand jury). It would “inflict a serious

blow upon the principle of federalism” to change course

now. Duncan, 391 U.S. at 171 (Fortas, J., concurring).

Louisiana’s own experience with unanimous

verdicts highlights the advantages of preserving State

control. A media and political campaign recently

mounted to amend the state constitution to require

unanimous verdicts in criminal trials. See John

Simerman & Gordon Russell, From ACLU to NRA:

Campaign for unanimous juries targeted Louisiana

voters across the spectrum, The Advocate (Nov. 7,

2018), https://bit.ly/2KCTkXf (last visited August 16,

2019) (discussing PAC donations and bipartisan media

and political campaign on ballot initiative). After a

newspaper published research about Louisiana’s nonunanimous verdicts, a measure was proposed to amend

the state constitution, and gained support from some

district attorneys. The measure passed the Senate and

the House and voters overwhelmingly approved it. Id.

Reading juror unanimity into the Sixth Amendment

would essentially make this democratic process hollow.

It would remove decisionmaking authority from the

public square and strip States of “the core of their

sovereign status.” Ice, 555 U.S. at 170. No longer could

sides disagree about the value of a particular feature

for jury trials and settle that difference by the will of

the majority.

26

B. Shackling States to unanimous verdicts

will hinder their ability to improve

criminal justice through experimentation.

A significant reason deference to States is so

important for criminal procedures is because States can

serve as laboratories. And “it strains credulity to

believe that [the Civil War Amendments] were

intended to deprive the States of all freedom to

experiment with variations of jury trial procedure.”

Johnson, 406 U.S. at 376 (Powell, J., concurring).

State experimentation is particularly appropriate

for jury-decision rules. Experimentation works best

when applied to areas that have “nationwide

agreement as to general goals, though perhaps not as

to the best means of achieving those goals.” Susan R.

Klein, Independent-Norm Federalism in Criminal Law,

90 Cal. L. Rev. 1541, 1542 (2002). And experimentation

is the precise reason the Founders left the

constitutional jury-trial right devoid of detail. See Part

I.A.4.

This ability for each State to adopt its own

system—and to change that system over time—has

yielded tremendous benefits, as Justice Powell

suggested in his decisive vote in Apodaca and Johnson.

Johnson, 406 U.S. at 376 (Powell, J., concurring). Even

though most States have, to this point, maintained a

unanimity requirement, the fact that greater

protections for criminal defendants exist today than

200 years ago undermines the traditional justification

for unanimity and may open the door to greater

experimentation going forward. See Ethan J. Leib,

27

Supermajoritarianism and the American Criminal

Jury, 33 Hastings Const. L. Q. 141, 142 (2006).

As scholars continue to debate the merits of

unanimity,6 States could come to view a supermajority

rule as an effective way to preserve a criminal

defendant’s rights while enhancing other important

features of the jury trial.

1. State experimentation can alleviate

nullification.

Unanimity gives tremendous veto power to a single

holdout juror. And holdout jurors unabashedly wield

that power: 42% of hung juries were deadlocked with

only 1 or 2 jurors holding out. Paula L. HannafordAgor, et al., Are Hung Juries a Problem?, The National

Center for State Courts, 67 (Sep. 30, 2002). But this

statistical disparity should come as no surprise.

Various groups openly advocate for jury nullification.

See, e.g., Fully Informed Jury Association, About FIJA,

available at https://fija.org/about-fija/overview.html

(last visited August 15, 2019).

6

See, e.g., Leib, supra; Robert F. Holland, Improving Criminal

Jury Verdicts: Learning from the Court-Martial, 97 J. Crim. L. &

Criminology 101, 125-41 (2006); Michael H. Glasser, Letting the

Supermajority Rule: Nonunanimous Jury Verdicts in Criminal

Trials, 24 Fla. St. U. L. Rev. 659 (1997); Akhil Reed Amar,

Reinventing Juries: Ten Suggested Reforms, 28 U.C. Davis L. Rev.

1169, 1189-91 (1995); Edward P. Schwartz and Warren F.

Schwartz, Decisionmaking by Juries under Unanimity and

Supermajority Voting Rules, 80 Geo. L. J. 775 (1992); Gary J.

Jacobsohn, The Unanimous Verdict: Politics and the Jury Trial,

1977 Wash. U. L. Q. 39.

28

Federal and State governments properly seek to

curb such a “sabotage of justice.” United States v.

Thomas, 116 F.3d 606, 616 (2d Cir. 1997) (cleaned up).

For example, the federal rules authorize judges to

dismiss for cause a juror who intends to nullify and

permit the remaining jurors to return a

verdict—essentially a non-unanimous verdict but-for

the dismissal of the nullifying holdout. Id. at 616-17

(discussing Fed. R. Crim. Pro. 23(b)). Many States

likewise authorize judges to dismiss would-be

nullifiers, but courts must carefully avoid hampering

deliberation secrecy and juror impartiality. See, e.g.,

People v. Williams, 21 P.3d 1209, 1213 (Cal. 2001),

abrogated on other grounds, People v. Barnwell, 162

P.3d 596, 605 (Cal. 2007).

The spillover from nullification isn’t limited to

blocking lawful convictions. Nullification vests a single

juror motivated by extralegal considerations with the

power to “overrule [ ] the majority’s judgment as

expressed through its chosen spokesman.” Gary J.

Simson, Jury Nullification in the American System: A

Skeptical View, 54 Tex. L. Rev. 488, 513 n.111 (1975).

“By passing judgment on the laws” rather than

applying them, “juries usurp the rightful democratic

authority of the legislature to determine public policy.”

Steven M. Warshawsky, Opposing Jury Nullification:

Law, Policy, and Prosecutorial Strategy, 85 Geo. L.J.

191, 212-13 (1996) (cleaned up). A supermajority rule

is a reasonable approach by a State hoping to prevent

a juror from fighting in the courtroom what he has lost

at the ballot box.

29

2. State experimentation can improve the

efficiency of deliberations.

Unanimity puts tremendous strain on jurors to

reach a verdict. An oft-cited benefit of unanimity is

deliberation. See, e.g., Shari Sidman Diamond, et al.,

Revisiting the Unanimity Requirement: The Behavior of

the Non-Unanimous Civil Jury, 100 Nw. U. L. Rev.

201, 230 (2006) (analyzing deliberations of civil juries

in Arizona). But the Sixth Amendment doesn’t

guarantee deliberation at all, let alone a particular

type of deliberation. See Tanner v. United States, 483

U.S. 107, 127 (1987).

And unanimity doesn’t guarantee high-quality

deliberation. A holdout juror may refuse to discuss the

case and do crossword puzzles instead. See Brewster v.

Hetzel, 913 F.3d 1042, 1054-56 (11th Cir. 2019).

In fact, the unanimity rule in many instances may

cut against quality deliberation. Numerous accounts

detail the “positively poison[ous]” atmosphere in some

jury rooms as majorities intimidate holdouts into

submission. William Glaberson, For Judges, Lawyers

and Fellow Jurors, the Challenges of Dealing With a

H ol dout, N . Y . T i m e s ( N o v . 1 9 , 2 0 1 0 ) ,

https://nyti.ms/2MaXmHk (last visited August 15,

2019); see also Anna Gorman, Holdout Jurors Can Put

Legal System to the Test, L.A. Times (Jun. 18, 2004),

https://lat.ms/2Y15e5w (last visited August 15, 2019).

Some deliberations become so confrontational that

jurors need to be broken up by marshals. See, e.g.,

United States v. Robinson, 872 F.3d 760, 767 (6th Cir.

2017). Just like common-law courts obtained unanimity

through coercion, see supra at 6-7, jurors often do the

30

same today–though to each other. See, e.g., United

States v. Lakhani, 480 F.3d 171, 185 (3d Cir. 2007)

(foreman threatened to keep holdout from her new

home). Unanimity doesn’t change the verdict’s

outcome; it changes only how long it takes to get there,

and the methods jurors must employ to obtain it. See

Leib, supra at 144 & n.10 (listing studies).

Perhaps worse still, if holdouts hold out long

enough, the jury is hung. Hung juries present

enormous costs: monetary costs with retrying cases,

emotional costs on victims and witnesses, safety costs

by reducing prison time for criminal defendants, and

political costs as mistrials sour the public toward the

criminal justice system. Hannaford-Agor et al. at 67.7

Wishing to redirect funds elsewhere, a State may

reduce the frequency of mistrals by switching from

unanimity to supermajority.

*****

The Sixth Amendment’s history and text show that

the people did not intend it to impose the unanimity

requirement, and federalism counsels in favor of more

State experimentation with criminal procedures, not

less. Allowing the States to continue to frame the jury7

While perhaps not a run-of-the-mill case, Bill Cosby’s first trial

cost $219,000. The Cosby Trial That Ended in a Hung Jury Cost

$219,000, Associated Press (Jul. 13, 2017), https://tinyurl.com/y25

fpztr (last visited August 15, 2019). It resulted in a hung jury, with

reports that two holdouts prevented the jury from reaching a

guilty verdict. Eric Levenson & Shachar Peled, Bill Cosby Jurors

Give Conflicting Accounts of Deadlock, CNN (Jun. 22, 2017),

https://tinyurl.com/y5wmknd6 (last visited August 15, 2019). He

was retried and convicted on all counts.

31

trial right as they see fit accords them both the respect

due them as sovereigns and the flexibility they need to

effectively protect their citizens.

CONCLUSION

The Court should affirm the judgment of the

Louisiana Court of Appeal.

Respectfully submitted.

SEAN D. REYES

Utah Attorney General

TYLER R. GREEN*

Utah Solicitor General

THOMAS B. BRUNKER

Deputy Solicitor General

JOHN J. NIELSEN

NATHAN H. JACK

Assistant Solicitors General

350 N. State Street, Suite 230

Salt Lake City, UT 84114-2320

Telephone: (801) 538-9600

Email: tylergreen@agutah.gov

*Counsel of Record

Counsel for Amicus Curiae

State of Utah

August 23, 2019

32

ADDITIONAL COUNSEL

STEVE MARSHALL

Attorney General

STATE OF ALABAMA

MIKE HUNTER

Attorney General

STATE OF OKLAHOMA

KEVIN G. CLARKSON

Attorney General

STATE OF ALASKA

ISAIAS SANCHEZ-BAEZ

Solicitor General

COMMONWEALTH OF

PUERTO RICO

LESLIE RUTLEDGE

Attorney General

STATE OF ARKANSAS

ASHLEY MOODY

Attorney General

STATE OF FLORIDA

CHRISTOPHER M. CARR

Attorney General

STATE OF GEORGIA

DEREK SCHMIDT

Attorney General

STATE OF KANSAS

DOUG PETERSON

Attorney General

STATE OF NEBRASKA

JASON RAVNSBORG

Attorney General

STATE OF SOUTH DAKOTA

HERBERT SLATERY III

Attorney General

STATE OF TENNESSEE

KEN PAXTON

Attorney General

STATE OF TEXAS

PATRICK MORRISEY

Attorney General

STATE OF WEST VIRGINIA