# Petitioners Brief — Apodaca v. Oregon

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1972
- **Citation:** 406 U.S. 404

## Text

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

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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

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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).

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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?

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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).

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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),

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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... .

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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

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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

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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

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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,

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0013%3A2. Public record. Not legal advice.