Petitioners Brief — Apodaca v. Oregon

IN THE

Supreme Court of the United States

OCTOBER TERM, 1970

Ne--533Game~

ROBERT APODACA, et al,

Petitioners,

V.

STATE OF OREGON,

Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS OF OREGON

BRIEF FOR PETITIONERS

Gary D. BaBcock

110 Labor & Industries

Building

Of Counsel: Salem, Oregon 97310

RICHARD T. SEYMOUR RICHARD B. SoBoL

MICHAEL B. TRISTER 1823 Jefferson Place, NW.

ELIZABETH MOLODOVSKY Washington, D.C. 20036

Washington, D.C. Attorneys for Petitioners

——

t

SA re OS tS epee

SIT Saree

RRS

Saran FER ee

eptonge SSS Sees merergreiieenquenyyenerryrr cnc

eae

eo

ww

tall Sz ger Ra a Ea ti WRB age

(i}

TABLE OF CONTENTS

I. OPINIONS BELOW ..........................

Il. STATEMENT OF THE GROUNDS ON WHICH THE

* JURISDICTION OF THE COURT IS INVOKED

_ VII. ARGUMENT: THE SIXTH 4 AENDMENT GUAR-

ANTEES UNANIMITY IN JURY VERDICTS ........

A. Unanimity Performs Indispensable Functions in

Terms of the Historic Purposes of the Criminal

ee Ee

1, The Unanimity Requirement Assures Full and

Complete Jury Deliberation .......... err

2. The Unanimity Requirement Serves To Assu

a Higher Standard of Proof in Criminal Cases ....

3. The Unanimity Requirement Guarantees Mean-

ingful Representation of a Cross-Section of a

Community ...... 0.0... 00.0. ec eeeeeeee,

B. There Is a Broad National Acceptance of the

Unanimity Requirement in Criminal Jury Trials... ..

C. The Legislative History of the Sixth Amendment

Supports the Conclusion That Congress Intended

To Incorporate the Right to a Unanimous Verdict

in the Guarantee of Jury Trial ................

D. Practical Considerations Favor the Retention of

the Unanimity Requirement ..................

MIll. CONCLUSION ............0ccceccceec cece.

(it)

TABLE OF AUTHORITIES

_ Cases:

Allen v. United States, 164 U.S. 492 (1896) .............. 9

American Publ. Co. v. Fisher, 166 U.S. 464 (1897) ......... 8

Andres v. United States, 333 U.S. 740 (1948)............., 8

Anonymous Case, 41 Lib. Assisarium 11 (1367) ........... 8

Baldwin v. New York, 399 U.S. 66 (1970) ..........000e. 7

Billeci v. United States, 184 F.2d 394 (D.C. Cir. 1950) ...... 13

3 De Stefano v. Woods, 392 U.S. 631 (1968) ...........00., 4

; Duncan v. Louisiana, 391 U.S. 145 (1968) ............. Passim

Hibdon v. United States, 204 F.2d 834 (6th Cir. 1953) ...... 13

Hoffman v. United States, 297 F.2d 754 (Sth Cir. 1962) ..... 15

Marshall v. United States, 360 U.S. 310 (1959)............ 10

Norris v. Alabama, 294 U.S. 587 (1935) ............000. 17

Patton v. United States, 281 U.S. 276 (1930) ............. 8

Shapiro v. Thompson, 394 U.S. 618 (1969) .............. 20

Smith v. Texas, 311 U.S. 128 (1940) ...............005. 17

Springville v. Thomas, 166 U.S. 707 (1897) ...........0-, 8

State v. Gann, 89 Ore. Adv. Sh. 853, 463 P.2d 570

i) Pe a 1, 4, 10, 14

Strauder v. West Virginia, 100 U.S. 303 (1880) ............ 17

Thompson v. Utah, 170 U.S. 343 (1898) ...........0000- 8

Turner v. Louisiana, 379 U.S. 466 (1965) ............0.. 10

United States v. Fioravanti, 412 F.2d 407 (3d Cir. 1969) . 10, 13,15

Whitus v. Georgia, 385 U.S. 545 (1967) .........0...045.

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

In re Winship, 397 U.S. 358 (1970) ..............

Witherspoon v. Illinois, 391 U.S. 510 (1968)

Constitutional Provisions:

Constitution of the United States

Sixth Amendment .........................., passim

Ninth Arendment ....................00005.., 22

Fourteenth Amendment .................. 4; 375, 7,20

Constitution of Louisiana

Article 7, section 41 ................0...0....., 19

Constitution of Montana

Article 3, section 23 ..................0.005.., 19

Constitution of Oklahoma

Article 2, section 19 ...................000005, 19

Constitution of Oregon .

Article 1, section 11 ...................... 2, 3, 4, 19

Statutes:

Louisiana Code of Criminal Procedure

i) ee 19

Montana Revised Codes Annotated

Section 94-116... .. 0... cece cece ccc c ee eee 19

Section 95-1901(c) ..... eee cee ee eee. 19

Section 95-1915(a) ..... SUE C TCT CTT ee eT Tee 19

Section 95-2005 2.0... ... ee cee eee eee. 19

Section 95-2006(a) ........ 0.0... cc cece eee ee, 19

Oklahoma Statutes Annotated

Title 21, section 10........ 0.0... .c ccc cece ee, 19

Oregon Revised Statutes

Section 136.610 ........ 0. eee cece cece eee. 19

Section 163.250 ...............00.000.... eeu 4

Section 164.230 2... cece ccc ewe cc cee eww eee 4

Section 164.310 2... ccc cc ccc cece ween 4

United States Code

Title 28, section 1257(3)............ 000.0005 ee, 2

Other Authorities:

Annals of Congress ( 1834) 2... cee c cece eee ee 22

Blackstone, Commentaries On the Laws of England (1765) .. . .8, 10

ee

(iv)

I J. Chitty, A Practical Treatise on the Criminal Law (1816)... = 8

Note, Community Hostility and the Right to an Impartial

Jurv, 60 Colum. L. Rev. 349 (1960) .............. 18

J. Elliot, Debates In the Several State Conventions on the

Adoption of the Federal Constitution, and Journal of

the Federal Convention (2nd ed. 1936) ............. 21,22

The Federalist Papers, No. 83 .......... 0.2.0 ce eee eee 23

M. Ferrand, Records of the Federal Convention of 1787

COLT ws oe a ee ee ee es ee eee eee hs ae 23

W. Forsyth, History of Trial by Jury (2d ed. Morgan

GE) ) a a ee 9,11

Sir Matthew Hale, The History of the Common Law of

Berman C0118) 6 sec he ces cee he see ewes eee 8, 18

Sir Matthew Hale, Historia Placitorium Coronae (1736) ...... 8

Kalven & Zeisel, The American Jury: Notes For an English

Controversy, 48 Chi. Bar Rec. 195 (1967) ......... 11, 15, 18

Kalven & Zeisel, The American Jury (1966) .......... 11, 12, 15

Kaplan, Decision Theory and the Fact Finding Process, 20

Stan. L. Rev. 1065 (1968) .. 0... . ccc eee cee ewe eee 13

i Kuhn, Jury Discrimination: The Next Phase, 41 S. Cal. L.

~ OY, 255 CIGGS) coe so os oe eee oe ed ee ee eaees 18

von Moschzisker, Trial by Jury (1930) ................4-- 17

Note, On Instructing Deadlocked Juries, 78 Yale L. J. 100

(UGE § ken oo 505 4 5 40 4b 05 55 hoe a ee RSs 15, 20

J. Proffatt, A Treatise on Trial by Jury (1876) .......... 13, 16

R. Pound and T. F. Plucknett, Readings On the History and

System of the Common Law (1927) ...........00000: 8

Comment, “Should Jury Verdicts Be Unanimous in Criminal

Cases,” 47 Ore. L. Rev. 417 (1968) ........... 000 ees 1]

J. F. Stephen, A General View of the Criminal Law of

Bambend C1668) oo5.v xe e584 bk teat se we cere es 11, 15

J. Story, Commentaries On the Constitution of the United

States (1833) .. 0. ccc cc ccc owe cess ease eee eees 8, 10

(v)

Note, The Jury: A Reflection of the Prejudices of the Com-

munity, 20 Hastings L. J. 1417 (1969). .... 0... ol.

Tucker, Racial Discrimination in Jury Selection in Virginia,

52 Va. 1. Rev. 736 (1966).............0.0.........

Page

ERMA I ToT A tees oe 9

SPURL i a GM a Sea ene aac ek oe

: PS) RiP RAAT Nitya Bea

IN THE SUPREME COURT OF THE UNITED STATES

OCTOPER TERM, 1970 i _

No. 5338

“aM Pe Ea wn

ROBERT APODACA, er al.,

Petitioners,

Na

STATE OF OREGON,

Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS OF OREGON

BRIEF FOR PETITIONERS

I. OPINIONS BELOW

The decision of the Court of Appeals of the State of Ore-

gon in these cases is reported at 89 Ore. Adv. Sh. 939, 462

P.2d 691 (1969), and appears in the printed appendix at

pages 8, 14 and 21. There were no opinions in these cases

in the Supreme Court of Oregon. (See App. 9, 15, 22).

The Supreme Court of Oregon decided the question involved

in this case adversely to the contention of petitioners herein

in State v. Gann, 89 Ore. Adv. Sh. 853, 463 P.2d 570

(1969).

aie

ER Pe Tee Oe TE a ee Owe ee ew eee

Sa Se

4

II. STATEMENT OF. GHk GROUNDS, QN WHICH THE

JURISDICTION OF THE COURT IS INVOKED

The three petitioners herein, Robert Apod

Mc oFag peti iqners,in ga¢h of. these. CASES WSC convicted of

felonies.in, Circuit Couris,of the State of Oregon, In cach

sase; dpss than SANE JB AVA Were als Gk

agcordance with Agticle 1, Section 11 of ths, 0 reeQn ¢

shitution. In.eachi case, the cgntention af the, pesitianes ‘hat

dhe Sixthand, Rouatsenth Amendment. to. the United, States

Constitution: prahibited. a conviction -by,, A divided. vote of

the jury: wascreiectad,on the merits by zhe Gout of Appeals

08 the: Statesof Qeegon, (App, 8,s14:and ,2))p and. in. Rach,

Case, SaViEW Was denied, by, the, Supreme,-Court,of Oregon,

Mppe 9; 18 22, The durisdiction, gf this. Sait SATE. HS

cause ris, conferred. by, 28 4LS.C: $,1257(3), ; verdic

of THE devisionscof the Supremd Court : Ohana ‘declining

‘to review these cases weere-nendered on Marck dO) 49702 A

(mo tom forrleave toe proceed: mi farina |pauperis and ia!pati-~,

ition sfor disrite oft certiorari. ward filed ani this\Gourt on: June

$¢4O70caBoth the unotion and the petition were grantedion

Novermben® d@7Oirring (App. 5, !8).

In a consolidated opinion, the Court o! Ap

Stateli, OF Fe CONS HI PRIONAL’ AND: STATUTORY. .

of the prdRROWISIONMS BNVOLXEDourteenth Amendments

0 Phisy eae vied HE Sith dhe Pouttkdaen MGHend!

“rhe fi eS the ited? States’ rete and Article I ‘Set.

DASE Of the rebut! Conseil iid

tion 4 of the O f :S Issue by a ake! ly divided vote “of the

Suphhe Saxth Amendment Prevides:. (3.,), i, 89 Ore. Adv.

Sh. 853. 48 all. Qrinsinal proseoutians,. the accused. shall en-

view Way dhe jsight to, ¢-spredy..and public trial, by, an. i

Marc h | @antiado jury pfo the state and. distri LicWi6 grein. the

crime shall have been committed, w istrict shall

have been previously ascertained by law, and to be

imfonmed jofthe maturg.and causes,of , the, eo

1968. | Node icant Lhe Witness aa

(App. 1-2have, compulsory process, fox obtaining viene

Court heiip faver ;and; $9, have,.the assistance ot cong

the state »s his. defense, prior to the date of the ruling in Duncan.

3

Section 1 of the Fourteenth Amendment provides:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State where-

in they reside. No State shall make or enforce any

law which shall abridge the privileges or immunities

of citizens of the United States; nor shall any State

deprive any person of life, iiberty, or property, with-

out due process of law; nor deny to any person with-

in its jurisdiction the equal protection of the laws.

Article 1, Section 11 of the Constitution of Oregon

provides:

In all criminal prosecutions, the accused shall have

the right to public trial by an impartial jury in the

county in which the offense shall have been com-

mitted; to be heard by himself and counsel; to

demand the nature and cause of the accusation

against him, and to have a copy thereof; to meet the

witnesses face to face, and to have compulsory pro-

cess for obtaining witnesses in his favor; provided,

however, that any accused person, in other than

capital cases, and w h the consent of the trial judge,

may elect to waive trial by jury and consent to be

tried by the judge of the court alone, such election

to be in writing; provided, however, that in the cir-

cuit court ten members of the jury may render a

verdict of guilty or not guilty, save and except a ver-

dict of guilty of first degree murder, which shall be

found only by a unanimous verdict, and not other-

wise; provided further, that the existing laws and

cCnstitutional provisions relative to criminal prose-

cutions shall be continued and remain in effect as to

all prosecutions for crimes committed before the

taking effect of this amendment.

IV. THE QUESTION PRESENTED

Does the Sixth Amendment right to trial by jury, as

applied to the states by the Fourteenth Amendment, guar-

antee unanimity in jury verdicts?

in RII rere tae it tt eee te te

SEEN ENON ORES AA ALLO ey PELE RY RETYPE Le pre IR reg eet meee Tk Pe,

Re

BN Ns

fre a dee > We ene

——-—_—__—_——4,

4

V. STATEMENT OF THE CASE

The three petitioners herein, Robert Apodaca, Henry

Morgan Cooper, Jr., and James Armold Madden, were sepa-

rately convicted of the crimes of assault with a deadly wea-

pon (Ore. Rev. Stat. 163.250), burglary in a dwelling (Ore.

Rev. Stat. 164.230), and grand larcency (Ore. Rev. Stat.

164.310), respectively, in Circuit Courts in the State of Ore-

gon. Upon conviction, Apodaca was sentenced to a term of

imprisonment up to five years, Cooper up to three and a

half years and Madden up to three years. The trial in each

case occurred after May 20, 1968, the date of this Court’s

decision in Duncan v. Louisiana.!_ Unader the provisions of

Article 1, Section 11 of the Oregon Constitution, a jury

verdict in cases tried in Circuit Court, other than verdicts

of guilty of murder in the first degree, may be rendered by

ten members of the twelve-man jury. In the Cooper case,

ten members of the jury rendered the verdict, with two

jurors in disagreement (App. 11-12). In the Apodaca and

4 Madden cases, verdicts were rendered by eleven jurors, with

one juror not concurring (App. 5, 18).

4

;

a 4

B

q

73

z

o

‘i

2

a

PA

a

a

3

POTS OAL

In a consolidated opinion, the Court of Appeals of the

State of Oregon rejected petitioners’ claims that, by virtue

of the provisions of the Sixth and Fourteenth Amendments

to the United States Constitution, they could be convicted

; only upon unanimous jury verdicts (App. 8, 14, 21). In its

: brief opinion, the Court of Appeals simply followed the

recent decision of this issue by a closely divided vote of the

Supreme Court of Oregon in State v. Gann, 89 Ore. Adv.

Sh. 853, 463 P.2d 570 (1969). In each of these cases, .

review was denied ©, the Supreme Court of Oregon on

March 10, 1970 (App. 9, 15, 22). The sole question pre-

1391 U.S. 145 (1968). The cases were tried on October 11,

1968, November 14, 1968 and December 10, 1968, respectively.

(App. 1-2). In De Stefano v, Woods, 392 U.S. 631 (1968), the

Court held that the right to jury trial would not be enforced against

the states in cases tried prior to the date of the ruling in Duncan,

a

:

sented for review is whether the Sixth Amendment right to

trial by jury, which this Court has held fully applicable to

criminal proceedings in state courts, guarantees the right to

unanimous jury verdicts,

VI. SUMMARY OF ARGUMENT

The requirement of unanimity is an indispensable ingre-

dient of the trial by jury guaranteed in criminal cases by

the Sixth and Fourteenth Amendments. Where the unani-

mity requirement is abandoned, the nature of trial by jury

is drastically altered and the Protection afforded a criminal :

defendant substantially weakened. Specifically,

—Full deliberation by the jury in an effort to reach

a common decision is a fundamental characteristic

of the jury process, affording an important protec-

_ tion to defendants in criminal cases. Deliberation

tends to insure that the jury has considered the

views of each of its members; it operates to test the

opinions of each juror and to correct any erroneous

understanding of the evidence. Where the unanimity j

requirement is abandoned, jury deliberation ends

prematurely when the requisite inajority for a ver-

dict is reached. When that majority exists at the

outset, there is no deliberation or consideration of

dissenting views.

—Jury unanimity is a self-operating mechanism which

enforces the due process requirement that guilt be

Proven beyond a reasonable doubt. It refiects the

historic Anglo-Saxon tradition that it is preferable

to acquit the guilty than to convict the innocent.

—The unanimity rule furthers the policy that jury

panels represent a fair cross-section of the commun-

ity, by assuring that divergent views and backgrounds

are represented in the deliberation and the verdict.

In this way it legitimates the imposition of criminal

sanctions in the eyes of the community.

6

These considerations provide the element missing in

Williams v. Florida.2 Unlike the requirement of 12, jury

unanimity rests on more than “‘mystical or superstitious

insights’’; it is closely related “‘to the great purposes which

gave rise to the jury in the first place.’’>

In other respects, there is a far stronger case for interpre-

ting the Sixth Amendment to require unanimity than there

was in Williams to require 12 jurors. There is substantial

historical evidence of the intention of the framers that the

unanimity requirement be secured by the Sixth Amendment.

Moreover, there is widespread national adherence to the un-

animity requirement. Only two states, Oregon and Louisi-

ana, provide for less than unanimous jury verdicts in serious

criminal cases; two others provide for non-unanimous jury

verdicts in a group of cases punishable by up to one year

in prison. By contrast, at least 12 states provide for juries

of less than 12.4 Both because of the lesser number of jur-

isdictions involved and because of the greater ease of com-

plying with a unanimity requirement than with a require-

ment of 12, the practical difficulties of implementing com-

pliance, which troubled the Court in Williams, are not a sig-

nificant factor here. Especially in the absence of substantial

practical problems, retention of the unanimity requirement

is far preferable to a decision that will necessarily create

uncertainty concerning the validity of different state prac-

tices involving various combinations of jury and majority

size.

2399 U.S. 78 (1970).

3399 U.S. at 88, 89-90.

4See note 45, infra, and accompanying text.

7

VII. ARGUMENT

THE SIXTH AMENDMENT GUARANTEES UNANIMITY

; IN JURY VERDICTS.

In Williams v. Florida, supra, the Court held that the

Sixth Amendment does not Suarantee a jury of 12 in cri-

minal cases. The Court noted that a jury of 12 was firmly

established at common law® and had been repeatedly recog-

nized as an element of the Sixth Amendment right,’ but

upon reconsideration of the question he'd that only those

characteristics of the common law jury that have a strong

functional relationship to the historic purposes of jury trial

are secured by the Sixth Amendment.® The twelve-man

requirement was found not to meet this test.

This case involves an issue expressly left open in Williams

-whether the Sixth Amendment guarantees unanimity in

the jury verdict.2 The requirement of unanimity, like the

requirement of 12 jurors, is firmly rooted in common law

‘The Court held in Duncan y, Louisiana, 391 U.S. 145 (1968),

and reaffirmed in Baldwin v. New York, 399 U.S. 66 (1970), that the

Sixth Amendment jury trial right is fully applicable in state criminal

cases, by virtue of the Fourteenth Amendment.

399 U.S. at 86-90,

"Id, at 90-92.

Sid, at 99-100.

"Id. at 100, n. 46. See also Duncan v, Louisiana, supra, 391 U.S.

at 158, n, 30, .

8

history!® and in the decisions of this Court.!!_ But unlike

a jury of 12, unanimity is essential to achieving the pur-

poses of the jury in criminal cases. Moreover, there are addi-

tional strong considerations that were not present in Williams

which favor the retention of the unanimity requirement.

There is strong support for the conclusion that the framers

of the Bill of Rights intended to incorporate the unanimity

requirement in the Sixth Amendment jury trial guarantee.

Further, there is close to universal adherence in the Ameri-

can states to the unanimity requirement in jury trials. Lastly,

practical considerations favor-the retention of the unanimity

requirement.

‘

10In Anonymous Case, 41 Lib. Assixarum 11 (1367), the justices

of assize decided that they could not accept an 11 to 1 guilty verdict,

where the twelfth juror refused to agree to the defendant’s guilt, say-

ing that he would rather die in prison first. This case has been widely

cited in treatises on the common law, and has been reprinted in Eng-

lish in R. Pound and T. F. Plucknett, Readings On the History and

System of the Common Law (1927) (translated by Thayer) at 155-

56.

The authors of the common law treatises all recognized the require-

ment of unanimity. See Sir Matthew Hale, The History of the Com-

mon Law of England (1713) at 261 and 263; 2 Sir Matthew Hale,

Historia Placitorum Coronae (1736) at 297 and 309; 3 Blackstone,

Commentaries On the Laws of England (1765) at 375-76 and 4 Com-

mentaries at 349 and 360; 1 J. Chitty, A Practical Treatise on the Ci-

minal Law (1816) at 635-36; 3 J. Story, Commentaries on the Consti-

tution of the United States (1833) at 652. :

'1See Andres v, United States, 333 U.S. 740 (1948); Thompson y.

Utah, 170 U.S. 343 (1898) (dictum); Patton v. United States, 281

U.S. 276, 288 (1930) (dictum); cf. American Publ. Co, v, Fisher, 166

U.S. 464, 468 (1897) (unanimity in civil j juries secured by the Seventh

Amendment); —— v, Thomas, 166 U.S. 707 (1897) (same).

RENIN EP OREN NRG RENT LR TL ON AE RECON TIRE EEA Ole ATO seb Sp mie y ge Oboe a

9

A. Unanimity Performs Indispensable F unctions In

Terms of the Historic Purposes of the Criminal

Jury. |

In several respects relaxation of the Tule of unanimity

drastically alters the nature of trial by jury and weakens the

protection the jury has historically afforded a criminal

defendant.

l. The Unanimity Requirement Assures Full and

Complete Jury Deliberation.

The historic role of the jury in Anglo-American criminal]

law is to hear the evidence, receive instructions on the law

492, 501 (1896). While trial by jury entrusts to a group of

laymen grave decisions affecting life and liberty, the inte-

’. Forsyth, History of Trial by Jury 204 (2d Ea. Morgan

875), | |

The importance of this comparison and discussion

is Particularly great in the case of untrained

10

judges. ... [T]he verdict ultimately represents gen-

eral impressions founded on conclusions, of which

many are forgotten in the course of the trial; and

though the value of such general impressions is often

underrated, there can be no doubt that their impor-

tance depends, if not principally, at least to a great

extent, on their being checker: by and compared and

found to correspond with, the general impressions

of others.

J. F. Stephen, A General View of the Criminal Law of Eng

land 221 (1863). See also United States v. Fioravanti, 412

F.2d 407, 417-18 (3d Cir. 1969).

Jury deliberation, as encouraged by unanimity, operates

to offset appeals to passion and prejudice by providing a

safeguard against hasty verdicts!2 based on emotion rather

than evidence.!3 The unanimity rule thus protects against

oppressive prosecutions based upon popular prejudice—one

of the great purposes behind the guarantee of jury trial in

the Sixth Amendment. See Duncan v. Louisiana, supra,

391 U.S. at 155.14 eer eh

12 justice Goodwin, dissenting in State v. Gann, 83 Ore. Adv. Sh.

853, 462 P.2d 570 (1969), reproduced in Appendix B to the petitions

for certiorari herein, stated that the unanimity rule:

undoubtedly decreases the likelihood of precipitancy and

increases the opportunity for a full and adequate discussion

of every issue about which there is reasonable doubt.

Aprendix B at 32.

13This danger is particularly acute because of the nature of the

jury as a body of completely untrained factfinders. Although a large

measure of the value of jury trial lies in just this fact, see 3 J. Story,

Commentaries On the Constitution (1833) at 653; 4 Blackstone,

Commentaries at 349, it creates a danger in that untrained laymen

are far more susceptible to appeals to passion and to prejudice than

are judges. See Marshall v. United States, 360 U.S. 310 (1959);

Turner v, State of Louisiana, 375 U.S. 466 (1965).

141m 1833, for exatfple, Justice, Story warned of the difficulty of

ensuring that innocent persons 2r¢ not unjustly convicted by juries

when there is “a spirit\\of violence and vindictiveness on the part of

1]

When a majority can render a verdict, the process of

deliberation is undercut in two respects. First, if the

requisite number of jurors agree at the Outset, there wiil be

no deliberation at all. In these cases, the minority jurors,

who may be the most capable and intelligent members of

the jury and who may remember a point of evidence that

would have been convincing to the majority, will never be

heard. See Comment, Should Jury Verdicts be Unanimous

in Criminal Cases, 47 Ore. L. Rev. 417, 424 (1968),

Second, even when a requisite number of jurors do not

agree at the outset and some deliberation is required, that

process is prematurely cut off once the necessary majority

agrees on a verdict. In at least 25% of the criminal cases

in Oregon, split verdicts are rendered.!$ The very fact that

there are dissenting jurors in these cases who feel strongly

enough to report their disagreement indicates that these-are

the cases in which there is serious question as to the guilt

or innocence of the accused.'6 But notwithstanding the

special need for careful consideration of the evidence in just

such cases, when ten iurors agree deliberation stops and the

verdict is rendered.!7_ The value of deliberation to the point

of aconsensus, with the attendant possibility that the major-

ity may be swung over in the continuing examination,

is lost.

Seeeenmeeennel

the people [who] .. . may demand their victim with a clamorous pre-

cipitancy.” 3 Commentaries on the Constitution at 653. Similarly,

IF. Stephen, in his study of the English criminal process, stated,

inter alia, that he thought “popular prejudice” in the jury room could

a large majority of the jurors, J.F. Stephen,A General View

Of the Criminal Law of England (1863) at 222.

'SKalven & Zeisel, The American Jury: Notes For an English Con-

froversy, 48 Chi. Bar Rec. 195, 201 (1967),

‘OW. Forsyth, History of Trial by Jury, supra, at 204-205, 210.

'Kalven & Zeisel, The American Jury: Notes For an English Con-

roversy, 48 Chi. Bar Rec, 195, 201 (1967),

FOR OO = Ah

Ss

%

“4

4

Batch AE ee RE

pall nia ainsi hear on ike

12

In jurisdictions in which the unanimity requirement pre-

vails, the jury deadlocks in only 5.6% of the cases. 18 Thus,

it is plain that Oregon juries render divided verdicts in a

large number of cases in which a unanimous verdict could

be reached after further deliberation. In some of these

cases, the minority might have convinced the majority of

the correctness of its views. In others, a middle ground

, would have been agreed upon, involving a conviction of a

lesser included offense or of less than all the counts charged.

But even where full deliberation would have resulted in the

same verdict, the completion of the process would ka e pro-

vided an important safeguard against an erroneous decision.

2. The Unanimity Requirement Serves to Assure

a Higher Standard of Proof in Criminal Cases.

As the Court suggested in Williams,'9 the unanimity

requirement helps insure that the government bear a heavier

burden of proof in criminal cases and thus protects against

the conviction of innocent persons.

The Court has held that due process of law prohibits cri-

minal convictions except upon proof of guilt beyond a rea-

sonable doubt.

The accused during a criminal prosecution has at

stake interests of immense importance, both because

of the possibility that he may lose his liberty upon

conviction and because of the certainty that he

would be stigmatized by the conviction. Accordingly,

a society that values the good name and freedom of

every individual should not condemn a man for com-

mission of a crime when there is reasonable doubt

about his guilt.

In re Winship, 397 U.S. 358, 363-64 (1970).

The unanimity requirement assures that this standard of

guilt is actually applied.

'8/d, at 200 Kalven & Zeisél, The American Jury, 453, 461 (1966).

19399 U.S. at 100 n. 46,

we

13

The unanimity of a verdict in a criminal case is inex-

tricably interwoven with the required measure of

proof. To sustain the validity of a verdict by less

than all the jurors is to destroy this test of proof

for there cannot be a verdict supported by proof

beyond a reasonable doubt if one or more jurors

remain reasonably in doubt as to guilt. It would be

a contradiction in terms.

Hibdon v. United States, 204 F.2d 834, 838 (6th Cir. 1953).

Accord: United States y. Fioravanti, 412 F.2d 407, 418-19

(3d Cir. 1969); Billeci v. United States, 184 F.2d 394, 403

(D. C. Cir. 1950).20

In another respect, the unanimity requirement serves to

enforce the standards of guilt in criminal cases. Jurors are

laymen unschooled in the law. Verbal distinctions between

guilt beyond a reasonable doubt and guilt by a preponder-

ance of the evidence frequently become blurred and some

jurors will vote to convict if they believe the evidence of

guilt outweighs the evidence of innocence.?!_ By contrast,

the unanimity requirement is a self-operating mechanism

which gives substance to the standard of guilt beyond a

reasonable doubt.22_ Even if some individual jurors actually

apply a standard less rigorous than that instructed by the

——

Olt is a safe and most valuable principle of criminal law that

before a person should be convicted of an offense; and deprived of

the most sacred rights a man can enjoy, life and liberty, there

thould be proof of his guilt beyond all reasonable doubt, and if,

must presume, are conscientious, a single one of them has a dcubt

of the person’s guilt, this ought to be sufficient to prevent a con-

Viction. Proffatt, A Treatise on Trial by Jury 117 (1876).

"1Cf. In re Winship, supra, 397 U.S. at 369-70 (Harlan J., Con-

curring); Kaplan, Decision Theory and the Fact-Finding Process, 20

Stan. L. Rev. 1065, 1071-77 (1968).

2CF In re Winship, supra, at 363.

The reasonable-doubt standard ... provides concrete

substance for the presumption of innocence... .

PARE SS CLARY NN ER

meee

URRY See hy

RE TE NE TE NN Ne RORY eA UR wees

Bact Ra Ce eh, pate | bet RAR tenes

ical diet ot elem Wa tins Rad aide aie ee A

ES cis ait oe i NE

Ge a Be

BS aa EA ORR:

14

Court, where all the jurors are required to reach the same

conclusion, a stringent standard—whether or not it can be

precisely categorized as guilt beyond a reasonable doubt—

has nevertheless been met.

In Williams, the Court considered whether the reduction

of the number of jurors from 12 to 6 reduced the govern-

ment’s burden of proof in criminal cases:

What few experiments have occurred—usually in the

civil area—indicate that there is no discernible differ-

ence between the results reached by the two differ-

ent-sized juries. In short, neither currently available

evidence nor theory suggests that the 12-man jury

is necessarily more advantageous to\the defendant

than a jury composed of fewer members.?*

By contrast, both evidence and theory make plain that the

unanimity requirement is more advantageous to a criminal

defendant than a rule permitting less than unanimous ver-

dicts, and that the unanimity rule provides aii important

protection against erroneous criminal verdicts.”*

It is obvious that it is harder to convince all of the

jurors than some of the jurors that a defendant is guilty

beyond all reasonable doubt. Where there are dissenters on,

a given record, more and better proof would have convinced

them. To accept a verdict over their dissent in these cases

reduces the applicable standard of proof.*

By contrast with the 5.6% figure of hung juries in unani-

mous verdict jurisdictions, where unanimity is not required

23396 U.S. at 101-02.

24See the dissenting opinion of Justice Goodwin in Stete v. Gann,

supra, Appendix B to the Petition for Certiorari herein at 32.

25Justice Goodwin reached the same conclusion in his dissent in

State v. Gann, supra, Appendix B at 33:

Thus, because it requires the concurrence of the unim-

passicned and the unprejudiced, the protection of unanimity

increases the likelihood that the guilt of the accused will

truly be established beyond-a reasonable doubt.

15

3.1% of the criminal juries fail to reach verdicts.2° Thus,

in 244% of the criminal trials in Oregon, a split verdict is

rendered, although the jury would have hung under the

common law standard. These are cases in which a verdict

is rendered, but in which further deliberation would not

have brought the dissenting jurors to vote with the major-

ity. Recent evidence indicates that one or two jurors will

indefinitely resist the powerful verbal and psychological

pressures toward concurrence in the view of the majority

only where there were other jurors in support of their posi-

tion at the outset of deliberation.27 In these situations,

where the convictions of one or two dissenting jurors were

originally supported by others and are so deep-rooted that

the pressures toward unanimity arising ovt of prolonged

deliberation are resisted, it is the historic judgment that

guilt beyond a reasonable doubt has not been estabiished

and that the case not be decided.

The most likely explanation for the 10:2 or 11:1

deadlocked juries is that it is a response to genuine

difficulties in the case. . . .”’28

“The possibility of a hung jury is as much a part of our

jury unanimity schema as are verdicts of guilty or not

guilty.” United States v. Fioravanti, supra, 412 F.2d at

«416. “[Flailure to agree . . . is, at least momentarily, a

| Victory for the defense and a legitimate end of the trial.”

Hoffman y. United States, 297 F.2d 754, 758 (Sth Cir.

1962) (Brown, J., dissenting).

ee

*6Kalven & Zeisel, The American Jury 461 (1966).

271d, at 462; Note, On Instruciing Deadlocked Juries, 78 Yale

L.J.100, 107-113 (1968).

*8Kalven & Zeisel, The American Jury: Notes For An English

Controversy, 48 Chi. Bar Rec. 195, 201 (1967). See Note, On

Instructing Deadlocked Juries, 78 Yale L. J. 100, 129 (1968). See

also J. F. Stephen, supra, at 222:

A minority which retains its Opinion after . . . delibera-

tion is not much less likely to be right than a majority.

3 —

Sides a

16

Because it allows convictions in situations in which the

jury would otherwise deadlock, a lessening of the unanimity

requirgment results in an unmistakable lessening of the bur-

den of proof. And given the care with which our legal sys-

tem attempts to avoid the possibility of convicting the

innocent?? two or three cases in a hundred is a very sub-

stantial number in which to incur a substantial additional

risk of erroneous convictions.*°

In maintaining a very high standard of proof in criminal

cases, the unanimity requirement assures the community

that innocent men are rarely convicted of crimes.*! This

assurance will erode if, in one case after another, a judg-

ment of a conviction is entered where one or more jurors

are convinced of the innocence of the accused.

29See In re Winship, supra, 397 U.S. at 363-64. In 1736, Sir

Matthew Hale stated:

... [T]he best rule is in dubiis rather to incline to

acquittal than conviction.

1 Historia Placitorum Coronae at 509. See also id., at 300. See also

J. Proffatt, supra, at 117.

39In Williams, the Court pointed out that a lessening of historic

standards for the jury process may make acquittals easier to obtain as

well as convictions. 399 U.S. at 101. But a case in which the jury is

divided 10-2 in favor of the accused is in practical terms virtually the

equivalent of an acquittal—in these circumstances retrial is unlikely

and ultimate conviction even more so. On the other hand, where the

jury is divided 10-2 in favor of conviction, the practical difference to

the defendant between a unanimity rule and a rule of 10 may be

very great.

”" It is critical that the moral force of the criminal law not

be diluted by a standard of proof which leaves people in

doubt whether innocent men are being condemned. It is

also important in our free society that every individyal going

about his ordinary affairs have confidence that his govern-

ment cannot adjudge him guilty of a criminal offense

without convincing a proper factfinder of his guilt with

utmost certainty. —

In re Winship, supra, 397 U.S. at 364.

17

The chief point in favor of the rule [of unanimity],

however, is that, on the average, its applics..on is

bound to bring a greater degree of general satisfac-

tion and public contentment . . . Courts are consti-

with much better grace than one reached by a split

jury, as also will the community at large. This,

probably more than any other reason accounts for

the origin and long continuance of the unanimity

rule.

von Moschzisker, Tria] by Jury 299-300 (1930).

Society’s confidence in the integrity of the criminal pro-

cess should not be compromised in favor of the marginal

convenience of permitting non-unanimous verdicts.

3. The Unanimity Requirement Guarantees Mean-

ingful Representation of a Cross-Section ofa

Community.

panel that reflects a true cross-section of the community.

Eg, Whitus vy. Georgia, 385 US. 545 (1967); Smith v.

‘Texas, 311 U.S. 128 ( 1940); Norris v. Alabama, 294 U.S.

587 (1935); Strauder v. West Virginia, 100 US. 303 (1880).

The cross-section requirement serves several purposes in

“minal jury trials. The variety of perspectives it produces

on the jury helps to ensure the soundest vossible evaluation

A ROY

MB PAB

‘ aot hirer ns ‘ * "I <2 rg s . 4 thx Ye "

MD > BARE DALE EAA IED ALLELE IPAS EL ALINE a Lr RT oT anda tx

18

excluded. It legitimates, in the eyes of all parts of society,

the imposition of criminal sanctions.*?

Jury unanimity is a necessary procondition to the effec-

tive application of the cross-section requirement. While

members of racial, religious or ethnic minorities, women,

poor people, young people or other previously excluded

groups may now be represented on juries, a rule permitting

a less than unanimous verdict makes it possible for a ver-

dict to be rendered without their acquiescence and indeed

without the consideration of their views. Only where a ver

dict cani:ot be rendered over the objection of any juror

does the cross-section requirement assure a broad commu-

nity consensus for the imposition of criminal sanctions, and

thereby assure that the jury will perform its consiitutional

function as a check on official oppression. See Duncan y.

32Kuhn, Jury Discrimination: The Next Phase, 41 S. Cal. L. Rev.

235, 241-247 (1968); Tucker, Racial Discrimination in Jury Selection

in Virginia, 52 Va. L. Rev. 736, 742-745 (1966); Kalven and Zeisel,

The American Jury, supra, 210-213; Note, The Jury: A Reflection

of the Prejudices of the Community, 20 Hastings L. J. 1417-20

(1969); Note, Community Hostility and the Right to an Impartial

Jury, 60 Colum. L. Rev. 349, 349-50 (1960).

Sir Matthew Hale said of trial by jury:

... It has the unanimous Suffrage and Opinion of Twelve

Men, which carries in itself a much greater Weight and Pre-

ponderation to discover the Truth of a Fact than any other

Trial whatsoever.

The History of the Common Law of England (1713) at 263.

Cf. Witherspoon y, Illinois, 391 U.S. 510, ‘519-520 (1968). In

stressing the importance of including persons of varying viewpoints

on a jury, so that it may “express the conscience of the commun-

ity,” id. at 519, the Court observed:

[O]ne of the most important functions any jury can perform

.. is to maintain a link between contemporary community

values and the penal system—a link without which the deter-

mination of punishment could hardly reflect “the evolving

standards of decency that mark the progress of a maturing

society.” Trop v. Dulles, 356 U.S. 86, 101....

Id, at 519, n. 15.

ly

Louisiana, supra,"39] U.S. at 155, 158; Williams v. Florida,

supra, 399 U.S. at 100. i. iadVOFT ¢ the rute jot Ubiahilhiity i.

vi, on the average. its application ts

?

}

HOUNG Lo Oring a greater degree of general satisfuc-

B. Thexeis.a Broad) National, Acceptance of the Unanimity

‘ute Requisement in Criminal Jury. Trials, . but, by

iurnishing an organize ans Of ~d‘ustme}

nla a ail Ba A nh

mity is secured, in the, tral of all. qriminal cases for.which

the federal jury, tial right iappligse), dn,itwe ether states,

Montang,.and, Oklahoma, less.ithan unanimeun verdigtsiare

permitted ‘fom diamdfud rofi crimes: punishable! by bp tosotie

year in} prisons**:!sOnly/lin }Oregonnand tLouwtisianae can! ess

than uManitAOUs juny VeFdicesy bel rendered incanentridD of

offenses punishable by ‘over Gy bares! MrpAvOnineHE.s4 inR¥EN

etl.

on) Mantans permits, a, verdict pf twosthinds of the jury in misde-

wwahor cases, The jury may consist of any number less than twelve

in iY ease inVoWinig Jess thian bapa Viens! Upon the dgrebrivent

ofsshe!pantids and the consentvof theccourt: a ¥n ithe ijustice mn polied

CoH the jury Consists; af six rat Most rand oles Vif -the- parties agree

to a smaller number of jurors. Although misdemeanors are ordinarily

punishable by no. rxore than six months’ imprisonment, there are

exception’! for a! few’ Offenges (MONTE CONSTY/ ait! 3: §'334/ MONT.

REV. CODES /ANY/°$€594/¥T6}/:98-19@1 (a), 595-49 18a),0 9522005,

95-2006{a)i/) 202212)

Tere Pymits a verdict by tlire hs

meanlot Cases: We HadtthedabrchassW BamBoutl of oe de eeu

démeititws) are | perieraly’ puriishabley by’ diprisonent of apite OARY

yar! OKLA) CONST.,«: artz:2, &49:-19708711 Suppy; @khaa sass.

ANN., ti 2}, $106 corgia. 385 US. 545 (1967): Smith v

‘'4Orédon permits- mdjdrity verdict! by’ ter ade BRAwelve jurdts in

at /feloviy 5 dasdsexcdpt ifirét': degree cmudder,althobgh3 at? requires).

unanimity in first, degree murder trials and all petty and misdemeanor

aa inet in district couht. ORE! CONST art 1,°§ 11S OREOREV.

SHY 836610. .he variety of perspectives it produces

ot PRG dah perrhits'& majotlty Veratet By atle aa UP bwenve fare

‘non-capital ‘oases whee ‘PoRishifish tis pewsssatilyCdt Hard labbr,

altioudh it requires essa nibtioud ie dict (bw dljury tobtwéive imeapis

tal cages,iand rbyna yury: lofhfive where, punishment maybe; at, hard

hbor. LA. CONST., art.7, §41: CODE OF CRIM. PROC., art. 782.

_ The failure of both states to provide for unanimity in trials involv-

ig non-capital serious felonies, while requiring it for all lesser and

aan

y tliree-fourths of the jury in misde-

SALINE ID I BERTINI IO NETS 2

ib

he

e

_*

= alain

Bisiciaree.cvm web

20

in these two states, unanimity is required.in capital cases,

_ thus indicating a legislative recognition that, at least where

life is at stake, the imposition of penalties is improper with-

gut the greater security of a unanimous verdict.*°

In Jn re Winship, which involved the standard of guilt

beyond a reascnable doubt in criminal cases, this Court

indicated the constitutional significance of widespread

adherence to a traditional rule of criminal procedure:

Although virtually unanimous adherence to the rea-

sonable doubt standard in common law jurisdictions

may not conclusively establish it as a requirement of

due process, such requirement does “reflect a pro-

found judgment about the way in which the law

should be enforced and justice administered.” -Dun-

can v, Louisiata, 391 U.S. 145, 155 (1968).

397 U.S. at 361-362.

Similar considerations strongly support the recognition of

jury unanimity as a Sixth Amendment requirement.*°

greater offenses, raises a serious question whether the distinctions are

arbitrary and capricious, and hence deny equal protection of the laws

to those convicted by non-unanimous juries. See generally Shapiro

v. Thompson, 394 U.S. 618 (1969).

35The fact that over half the states now allow civil verdicts by less

than unanimous juries, see Note, On Instructing Deadlocked Juries,

78 Yale L. J. 100, 127 n. 2 (1968), while 48 states require una.iimity

for felony convictions, further illustrates broad recognition of the

importance of this additional safeguard against error in criminal cases.

36Petitioners’ argument in this case is framed in terms of the Sixth

Amendment. It is plain, however, that many of the considerations

discussed herein,.including the relationship of jury unanimity to the

reasonable doubt standard and to jury cross-section requirements, are

equally relevant to the interpretation of the due process and equal

protection clauses of the Fourteenth Amendment, unassisted by the

Sixth Amendment. Thus, even if the holding in Duncan that the

Fourteenth Amendment applies the Sixth Amendment jury trial right

to state criminal proceedings is not accepted, see Williams v. Florida,

supra, 397 U.S. at 117 (Harlan, J., concurring), 143 (Stewart, J., con:

curring), there is nonetheless a strong basis in the general language of

the Fourteenth Amendment for the requirement of unanimity in

criminal jury trials. |

21

C. The Legislative History of the Sixth Amendment

Supports the Conclusion That Congress Intended

to Incorporate the Right to a Unanimous Ver-

dict in the Guarantee of Jury Trial.

- In Williams, the Court held that the legislative history of

the Sixth Amendment failed to indicate whether or not the

framers intended to incorporate the requirement of 12

jurors. 399 U.S. at 92-99. There is additional evidence

with respect to the unanimity requirement which strongly

indicates an intention of the framers of the Bill of Rights

to incorporate that guarantee in the Sixth Amendment.

North Carolina refused to join the Union until certain

specified individual rights, including the right te unanimous

jury verdicts in criminal trials*’, had been guaranteed by the

Congress.*® The interrelationship between the passage of a

*’North Carolina’s proposed Declaration of Rights stated in part:

8th. That, in all criminal and capital prosecutions, a man

hath a right ... to a fair and speedy trial by an impartial

jury of his vicinage, without whose unanimous consent he

cannot be found guilty ....

4 J. Elliot, Debates In the Several State Conventions on the Adop-

tion of the Federal Constitution, and Journal of the Federal Conven-

tion (2nd ed., 1836) (hereinafter cited as Elliot’s Debates) at 243.

The provision in Virginia’s proposed Bill of Rights was identical.

3 Elliot’s Debates at 658, § *.

**The North Carolina Convention stated in a resolution adopted

August 2, 1788, that “this Convention has thought proper neither to

ratify nor rej2ct the Constitution proposed for the government of the

United States,” despite the Convention’s recognition that, the neces-

sary number of states having ratified the Constitution, the Federal

Government would begin its operations without them. 4 Elliot’s

Debates at 251.

On the same day, the Convention adopted a Declaration of Rights,

id, which included the unanimity provision, supra, n. 37, and was

prefaced hy the following statement:

Resolved, That a declaration of rights, asserting and securing

“from encroachment the great principles of civil and religious

liberty . . . ought to be laid before Congress, and the con-

vention of the states that shall or may be called for the

BES sth Sn a,

bad Vacs

8

i RELEILI NAL Ce ORS OR

22

Bill of Rights and the willingness of some coionies to join

the Union was emphasized in the debate on the Bill of

Pights in the First Congress.*? James Madison stated the

purpose of the Bill of Rights was to quiet the fears of those

who thought that the Constitution had not adequately safe-

guarded various rights, including the right to trial by jury.”

Representative Gerry stated in debate that the objections of

North Carolina and Rhode Island would have to be met

before they came into the Union.

Are gentlemen willing then to throw Rhode Island

and North Carolina into the situation of foreign

nations? They have told you that they cannot

accede to the Union, unless certain amendments are

made to the Constitution; if you deny a compliance

with their request in that particular, you refuse an

accommodation tc bring about that desirable event,

and leave them detached from the Union.*!

Since the chief purpose of the Bill of Rights was to quiet

fears that individual rights were insufficiently protected, it

follows that North Carolina’s expressed apprehension con-

cerning the elimination of unanimity in jury verdicts was

intended to be alleviated by the Sixth Amendment.*? Only

purpose of amending the said Constitution, previous to the

ratification of the Constitution aforesaid on the part of the

state of North Carolina.

Id. at 242.

39North Carolina had transmitied the above resolutions and

Declaration of Rights to Congress and to each State. 4 Elliot’s

Debates at 252.

40) Annals of Congress 746 (1834).

411 Annals 445. There is evidence that some of the States which

ratified the Constitution had done so because of assurances that the |

same types of safeguards sought by North Carolina would be pro-

vided. Compare Virginia’s proposed bill of rights, supra note 37,

with the statement of Rep. Gerry, 1 Annals at 447.

42The Ninth Amendment-to the United States Constitution, which

provides that “the incorporation in the Constitution of certain rights

shall not be construed to deny or disparage others retained by the

23

after the adoption of the Bill of Rights by the Congress did

North Carolina jcin the Union.*? In contrast to this con-

cen that jury unanimity be guaranteed, the number of

jurors does ..ot seem to have troubled any of the states dur-

ing the ratification process. .

D. Practical Considerations Favor the Retention

of the Unanimity Requirement.

In contrast to the near uniform nationwide practice with

respect to jury unanimity™ , at least twelve states provide

for juries of less than twelve in the trial of criminal cases*®

to which the federal jury trial right applies. Thus, unlike

the situation in Williams, retention of the common law

standard would affect only a small handful of jurisdictions.

Moreover, even within those few jurisdictions the transition

from a non-unanimous to a unanimous rule can be simply

carried out. No change need be made in the numbers of

jurors available for duty or actually impaneled, or in the

size of jury boxes or other facilities. Only the judge’s

instruction to the jury would have to be changed.

CVO

people” certainly prohibits the inference that the mere lack of speci-

fication of the unanimity requirement in the Sixth Amendment

suggests it was not guaranteed. The Ninth Amendment was intro-

duced specifically to preclude inferences of this kind that might

otherwise be drawn from the skeletal form of the Bill of Rights.

| Annals at 439: 1 Annals at 442; see also The Federalist Papers,

No. 83; Remarks of C. C. Pinckney in the South Carolina House

B of Representatives on the Ratification of the Constitution, 3 M.

Farrand, Records of the Federal Convention of 1787 (1911) at 256;

Remarks of James Wilson in the Pennsylvania Convention, 3 Farrand’s

Records at 143,

“32 Annals at 1714.

4 See Section B, supra.

“The authorities are collected in an Appendix to Justice Harlan’s

‘oncurring opinion in Williams, 399 U.S. at 139-141, and in Appen-

tix B to the Brief for the Appellant in Duncan v, Louisiana, supra,

EE Rivas at BER IO kp eR:

righ sas rains a

We AL PRO a

Prepay

Ply Pep ie Oy

EVER RENT ETT a

NTR WREN TTR METI IER TPG er BOE CANN EMS COR Teo AEC Se

24

While the unanimity requirement will cause greater

length of deliberation in many criminal cases—a phenome-

non that petitioners believe provides an important consid-

eration in favor of its retention—the jury will be deadlocked

only in an additional two or three per cent of criminal

Cases <

A fixed requirement of twelve jurors would have perma-

nently and inflexibly imposed on state criminal systems a

burdensome and expensive procedure that the Court in

Williams found was without substantial purpose in terms of

the historic role of the jury. Unanimity serves important

functions and the practice of 48 states demonstrates that its

retention would impose on substantial additional burdens

on the administration of criminal justice.

Another practical consideration supports the retention of

the unanimity requirement. In Louisiana, nine out of

twelve jurors can return a verdict in serious criminal cases.”

In Montana, two-thirds of the jury can return a verdict in

a class of cases to which the Sixth Amendment right to a

jury trial applies.47 Approval of a verdict supported by ten

of twelve jurors will raise the questions of whether these

lesser majorities—or even a verdict returned by a simple

majority of jurors—comports with the essential requirement

of trial by jury. Further difficulties will arise when major-

ity verdicts are combined with the juries of less than twelve

members approved last Term.*® Given Williams, a decision

permitting less than unanimous verdicts may soon confront

the Court with a myriad of different combinations of jury

size and required majority, raising difficult line-drawing

problems. Until those problems are resolved, such a deci-

46See note 33, supra.

47See note 34, supra.

48Qklahoma, for example; permits jury verdicts by 3/4 of a

six-man jury in some cases punishable by up to one year in prison.

See note 33, supra.

25

sion will create serious uncertainty in the administration of

the criminal law.

VIII. CONCLUSIONS

The requirement of unanimity in criminal jury verdicts is

grounded in several hundred years of practice in this coun-

try and at common law. It has been long recognized by

this Court as a constitutionally guaranteed feature of the

Sixth Amendment right to trial by jury in criminal cases.

It has always been considered to bear a strong relationship

| to the purposes of the jury system. There are no compel-

ling circumstances which might justify the abandonment of

this basic guarantee.

Petitioners respectfully urge their convictions be reversed

or remanded for-a new trial in accordance with the unani-

mity requirements of the Sixth Amendment.

Respectfully submitted,

GARY D. BABCOCK

110 Labor & Industries Building

Salem, Oregon 97310

RICHARD B. SOBOL

1823 Jefferson Place, N. W.

Washington, D. C. 20036

Attorneys for Petitioners

Of Counsel:

RICHARD T. SEYMOUR

MICHAEL B. TRISTER

ELIZABETH MOLODOVSKY

Washington, D. C.

Dated: December 24, 1970