Respondents Brief — Apodaca v. Oregon

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In the Supreme Court

of the GAnited States

OCTOBER TERM, 1970

NO-6a88—

ROBERT APODACA, et al.,

Petitioners,

Vv.

STATE OF OREGON,

Respondent.

On Writ of Certiorari to the Court of -

Anpeals of Oregon

BRIEF FOR RESPONDENT

LEE JOHNSON

Attorney General of Oregon

JACOB B. TANZER

Solicitor General

THC*AS H. DENNEY

Assistant Aitorney Geneval

State Office Building

Salem, Oregon 97310

‘ Phone (503) 378-4401

Counsel for Respondent

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TABLE OF AUTHORITIES

Cases Cited

Allen v. United States, 164 US 492 (1896) 00000...

Cooksey v. Haynes, (1858) 27 Law J. Rep (NS)

of a 14

Dreyer v. Illinois, 187 US 71 (1902) ~...00.2 26

Duncan v. Louisiana, 391 US 145 (1968) ........ 4,5, 6, 7,9

Fournier v. Gonzalez, 269 P2d 26 (- Cir 1959) ........ 25

Hibdon v. United States, 204 F2d 834 (6 Cir 1953) 25

Hoffa v. United States, 385 US 293 (1966) ............ 30

Jacobellis v. Ohio, 378 US 184 (1964) _.000. oo... 23

Maxwell v. Dow, 176 US 581 (1900) —.000..0.2e.. 5

Oregon v. Mitchell, — US — (1970) .......0000.... 23

Osborn v. United States, 385 US 323 (1966) .......... 30

State v. Gann, 254 Or 549, 463 P2d 570 (1969) .... 1, 4, 27

Thompson v. Utah, 170 US 343 (1898) _...02 5

Constitutional and Statutory Provisions

United States Constitution

Sixth Amendment ........................ 2, 3, 4, 5, 6, 7, 12, 18,

19, 20, 21, 25, 26

Fourteenth Amendment .............0..0.2...eeeeeseeee 2, 5, 6

Idaho Constitution, Art. I, § 7.2.00... 18

ramon: COPS UC Oh nana scc ssstn esse sinciensicnns 16

Art. I, § 37 (repealed 1964) ......00.002 ee. 3

PER, Big LE, sens ccesecesetcnrs een eee eters 4

Criminal Justice Act (1967) § 13 (Great

TOMY asec ecco iat eee teat ee 10, 17, 23; 25

Juries Act (1870) § 23 (Great Britain) 2000000200... 14

“

EP EEE RT,

FN ee as Pe es Varna ete ie

Other Authorities

Page

American Bar Association Project on Minimum

Standards for Criminal Justice, Standards Re-

lating to Trial by Jury, § 1.1(d) (Approved

TOUTE A ohana espace cucangesenapnecest 17, 24, 25, 31

American Law Institute, Code of Criminal Pro-

cedure 137 § 355 (1931) —..000.... eee. 16, 24, 31

Barnett, The Jury’s Agreement—lIdeal and Real,

20 Or L Rev 189 (1941) esbrat ap edapsodeerentee sisoene teen 15

Bentham, The Elements of the Art of Packing as

Applied to Special Juries (London 1821) .... 10, 11, 29

3 Blackstone, Commentaries 376 ......................0000.... 13

Comment, Waiver of Jury Unanimity—Some

Doubts About Reasonable Doubt, 21 U Chi L

FROM SG CI cece tees psec neste nsec 16, 26

Devlin, Trial by Jury (3 ed 1966) ....... a 8,9, 10, 13, 14

‘Elliott, Debates on the Adoption of the Federal

Constitution (1907) ..............eeeeeeeeee ee eeeeeeeee eee 19, 20

The Federalist, No. 83 (Hamilton) .........00.....00002..... 19

3 Encyclopedia of the Laws of Scotland, Crime

y ss Se 4 I ne en 11

Forsyth, Trial by Jury (2d, Morgan rev. 1875)

8, 9, 10, 12, 13, 15

Heller, The Sixth Amendment (1951) ........ 17, 19, 20, 22

Kalven & Zeisel, The American Jury (1966) ........ 14, 29

Kalven & Zeisel, The American Jury: Notes for an

English Controversy, 48 Chi Bar Rec 195

Be aces cencse cos eeery ees oat et oped 12, 30

Kirkpatrick, Should Jury Verdicts be Unanimous

in Criminal Cases?, 47 Or L Rev 417 (1968) .... 30

Other Authorities—Continued

| . Page

McDonald, Criminal Law of Scotland (4 ed, Mit-

chell rev 1929) _200......eeeeece cece eee eeeeeeeeeeeeeeeeeee ee 11

Osborn, The Mind of the Juror (1937) .................. 15

Pannam, Trial by Jury and Section 80 of the Aus-

tralian Constitution, 6 Sydney L Rev 1 (1968) 12

Proffatt, Trial by Jury (1876) -.......00000.ee ee. 8,9, 13

Report of the Commissioners on Criminal Law

(London 1830) -22.......2..ccecec cece eeceeeeceeeeeeeeeeeeeeeeees 10

Report of the Crime Commission of Oregon to the

Thirty-Seventh Legislative Assembly of the

State of Oregon (1931) _.0....... cece ee eee 3

Ryan, Less Than Unanimous Jury Verdicts in

Criminal Trials, 58 JCr LLC & PS 211 (1967) 7

Samuels, Criminal Justice Act, 31 Modern Law

Review 16 (London 1968) ........020000ee eee 11

Tamm, The Five-Man Civil Jury: A Proposed Con-

stitutional Amendment, 51 Geo L J, 120 (1962) 23

Thayer, The Jury and Its Development, 5 Harv L

Rev 249 (1892) oo. cccc cece cee ceceeceeeeseeeeeesseees 8,13

Von Moschzisker, Trial by Jury (2d ed 1930) ........ 12, 28

Rule 31 (a) FRCrP oon... ceeeeeeeeeececeeeeeeeeeees 25

ili

baa

£k;

i :

SUBJECT INDEX

I. Opinions Below .....2........22..-2-::-2eecceseeeeeeeeeeeeeeess 1

II. Jurisdictional Statement —....2...00...0022.e cece eee

III. Constitutional and Statutory Provisions In-

6) (6 a nee Seer

IV. The Question Presented ...............000222...2222.-.0----

V. Statement of the Case ............. peepee eich nese

VI. Summary of Argument .........002.....00....22002220000--+-

Argument:

The Oregon Law ..........2...222..-2:::c22:cc2eeeeeeseeeeeeeeees

The Issue as Framed in Duncan and Williams ..

I. Unanimity is not a necessary element of

the Anglo-American jury system ..............

A. Because the unanimity requirement is

an historical accident; -.........2202..2.2..2222...

B. Because unanimity is no longer re-

quired in England, and certain other

Commonwealth jurisdictions; ..............

C. Because the Anglo-American system

tas encouraged and accepted the illu-

sion, not the reality of unanimous ver-

dicts. The majority verdict is more

effective, less fictitious than other ac-

cepted devices; .............2.2..eteeeeeceeeeeeeeeees 2

D. And because distinguished American

legal groups have endorsed its qualifi-

cation and four states have modified

the unanimity requirement

SUBJECT INDEX—Continued

Conclusion regarding the Anglo-American re-

gime of ordered liberty and the unanimity

requirement ..............22..22-:eeeceeeeeeeecceeeeeeeeeeeees

II. Unanimity is not required by the Sixth

Amendment because it was omitted from

the Constitution and specifically deleted

from the Sixth Amendment ........................

III. Unanimity is not required by the Sixth

Amendment because it is not essential to

the purpose of trial by jury— ......................

Because a 10/12 verdict requirement

is an adequately substantial shield

against judicial or prosecutorial op-

3) g 5 6) | ne re ar re

. Because 10/12 verdicts do not alter the

requisite burden of proof beyond rea-

sonable doubt; —............0000.000000e cece eee

. Because 10/12 verdicts enjoy public

confidence; _.......... 2. eeeeeee eee ee eee eeeeeeeeeeeee ee

Because allowance of 16/12 verdicts

works by improving the administra-

tion of justice and facilitating the de-

Cisional pYroceSS ................2:::.:eeseeeeeeeeeees

P Zz

ee ee eee ee ee ee eee ee eee

Page

In the Supreme Court

of the United States

OCTOBER TERM, 1970

NO. 5338

ROBERT APODACA, et al.,

Petitioners,

Vv.

STATE OF OREGON,

Respondent.

On Writ of Certiorari to the Court of

Appeals of Oregon

BRIEF FOR RESPONDENT

I. OPINIONS BELOW

Petitioners’ recital is correct. The current citation

for State v. Gann is 254 Or 549, 463 P2d 570 (1969).

II. JURISDICTIONAL STATEMENT

fil. CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

IV. THE QUESTION PRESENTED

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nates

PREPARA Gor) PE

V. STATEMENT OF THE CASE

Petitioners’ statements of the jurisdiction of the

court, the constitutional provisions involved, the ques-

tion presented and the case, are accurate and respondent

accepts them as its own.

VI. SUMMARY OF ARGUMENT

The Oregon law permits convictions in felony cases

by a vote of ten of twelve jurors. That procedure is

authorized by the Sixth and Fourteenth Amendments

for these reasons:

I. Unanimity is not a necessary element of the

Anglo-American jury system—

A. Because the unanimity requirement is an

historical accident;

B. Because unanimity is no longer required in

England and certain other Commonwealth jurisdictions;

C. Because the Anglo-American system has en-

couraged and accepted the illusion, not the reality, of

unanimous verdicts; acceptance of substantial majority

verdicts is more effective, less fictitious than other ac-

cepted devices; and

D. Because distinguished American legal groups

have endorsed adoption of the substantial majority

verdict procedure and five American states have modi-

‘fied the unanimity requirement.

II. Unanimity is not required by the Sixth Amend-

ment because it was omitted from the Constitution and

specifically deleted from the Sixth Amendment.

III. Unanimity is not required by the Sixth Amend-

ment because it is not essential to the purpose of trial

by jury—

A. Because a 10/12 verdict requirement is an

adequately substantial shield against judicial or prose-

cutorial oppression;

B. Because 10/12 verdicts do not alter the

requisite burden of proof beyond reasonable doubt;

C. Because 10/12 verdicts enjoy public confi-

dence; and

D. Because allowance of 10/12 verdicts works

by improving the administration of justice and facili-

tating the decisional process.

ARGUMENT

-_— 4k

The Oregon Law

In 1931, the Crime Commission of Oregon,® charged

by the legislature with the duty of investigating into the

problems of crime in Oregon, recommended inter alia

that the Constitution of Oregon be amended so as to al-

low for guilty verdicts, except in capital cases,® upon a

vote of ten out of twelve jurors.®

®The breadth of the philosophical spectrum of the eleven

members is demonstrated by two of their number who later as-

sumed federal posts, Wayne iu. Morse and Dorothy McCullough

Lee who became members, respectively, of the Senate and of the

Subversive Activities Control Board.

® Capital punishment has since been abolished in Oregon. Ore-

gon Constitution, Art. I, sec. 37 was repealed by vote of the people

in 1964.

® Report of the Crime Commission of Oregon to the Thirty-

Seventh Legislative Assembly of the State of Oregon (1931).

4 8

The constitutional amendment to allow verdicts of

guilty or not guiity by ten out of twelve jurors in circuit

court (the court of general jurisdiction) was adopted

by vote of the people in May 1934. Oregon Constitu-

tion, Art. I, sec. 11 was thereby amended to read in rele-

vant part:

“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 ccm-

mitted; . . . . provided, however, that any accused

person, in other than capital cases, and with the con-

sent 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, how-

ever, that in the circuit court ten members of the jury

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

except a verdict of guilty of first degree murder,

which shall be found only by a unanimous verdict,

and not otherwise; ... .”

Each of the three petitioners in this consolidated ap-

peal were found guilty by non-unanimous verdicts in

the courts of Oregon and the federal constitutional va-

lidity of Art. I, sec. 11 of the Oregon Constitution is here

in issue. The Oregon Supreme Court upheld the pro-

cedure against a Sixti: Amendment challenge in the

thoughtfully reasoned opinion of State v. Gann, 254 Or

549, 463 P2d 570 (1969) which is set out fully post at

page 33.

The Issue as Framed in Duncan and Williams

At the turn of the century, the Supreme Court held

that the Sixth Amendment right to jury trial was no

part of the Fourteenth. In Maxwell v. Dow, 176 US 581

at 605 (1900), the Court stated its holding that

“it is in entire conformity with the character of the

Federal Government that [the people of the states]

should have the right to decide for themsecives ...

whether there shail be a jury of twelve or a lesser

number, and whether the verdict must be unanimous

or not. These are matters which have no relation to

the character of the Federal Government. cf.

Thompson v. Utah, 170 U.S. 343 (1898).”

In Duncan v. Louisiana, 391 US 145 (1968) the Su-

preme Court held that the Fourteenth Amendment

guarantees a right to trial by jury in state cases which,

were they federal, would be tried by jury under the

Sixth Amendment. The Court so held ‘Wecause “we

believe that a fair trial by jury in criminal cases is

fundamental to the American scheme of justice... .”

The majority opinion traced the definition of due pro-

cess, aS applied to the right to jury trial, and reformu-

lated it as follows:

“The question thus is whether given this kind of

system [as has developed contemporaneously in Eng-

land and the United States] a particular procedure is

fundamental—whether, that is, a procedure is neces-

sary to an Anglo-American regime of ordered liberty.”

391 US at 149-150.

In deciding that jury trial was necessary to the Anglo-

American concept of ordered liberty, pains were taken

not to imply a holding that the federal jury practice in

all its particulars was being thrust upon the states. Mr.

Justice Fortas in his concurring opinion stated the im-

plicit limitation of the holding:

“.. . I see no reason whatever, for example, tu

iF Bie aN Coma ee ik ce ih ai / ee

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assume that our decision today would require us to

impose federal requirements such as unanimous ver-

dicts or a jury of 12 upon the States. We may well

conclude that these and other features of federal jury

practice are by no means fundamental—that they are

not essential to due process of law—and that they

are not obligatory on the States.

. “Neither logic nor history nor the intent of the

draftsmen of the Fourteenth Amendment can possibly

be said to require that the Sixth Amendment or its

jury trial provision be applied to the States together

with the total gloss tnat this Court’s decisions have

supplied.” (There follows an excellent expusition of

the value of diversity in the federal system.) 391

US at 213.

The case of Williams v. Florida, 399 US 88 (7970)

confirmed that expression of the limitations of Duncan.

The Fourteenth Amendment-requires less than complete

state-federal symmetry. A six member jury was held

to satisfy the Sixth and Fourteenth Amendments. The

Court stated the issue thus:

m The relevant inquiry, as we see it, must

be the function that the particular feature performs

and its relation to the jury trial. Measured by this

standard, the 12-man requirement cannot be regarded

as an indispensable component of the Sixth Amend-

ment.

“The purpose of the jury trial, as we noted in

Duncan, is to prevent oppression by the Government.

‘Providing an accused with the right to be tried by a

jury of his peers gave him an inestimable safeguard

against the corrupt or overzealous prosecutor and

against the compliant, biased, or eccentric judge.’

Duncan v. Louisiana, supra, at 156.” 399 US at

99-100.

The inquiries in this case were thus framed in Duncan

and Williams. The burden of this brief will be to demon-

strate that the requirement of unanimity of verdict is

not comprehended by the Sixth Amendment because:

(1) It is not a necessary element of the. “Anglo-

American regime of ordered liberty;”

(2) It was omitted from the Constitution and specif-

ically deleted from the Sixth Amendment; and

(3) It is not essential to the accomplishment of the

purposes of the right to trial by jury.

I. Unanimity is not a necessary element of the

Anglo-American jux+ system

A. Because the unanimity requirement is an

historical accident;

Although unsuccessful attempts have been made to

explain the policy reasons for the requirement of

unanimity in common law jury procedure,® the require-

ment appears to have been the same sort of “historical

accident” a#*Williams determined the 12-men require-

ment to have been. 399 US at 89.

The unanimity rule derived from the Twelfth Cen-

tury practice of afforcement. Early jurors were knights,

then landholders, with personal knowledge, or its

equivalent of the fact at issue. Twelve were assembled

and new jurors were added until the requisite number

of oaths in agreement were accumulated. Those who dis-

Trials, 58 J Cr LC & P'S 211, 2i2 (1967).

DEORE IES CS PIG BY A DE GS LT MIR

agreed were regarded as talse and were rejected from the

group. Thayer, The Jury and Its Development, 5 Harv L

Rev 249, 261 (1892); Proffatt, Trial by Jury (1876) :.3-

115; Devlin, Trial by Jury (3 ed 1966) 8.

The requisite number of oaths to establish a fact

increased with the gravity of the consequences of that

fact. In the time of Henry II, twelve oaths were

required to prove disseizin—jurors were free to dis-

agree, but the accumulation of twelve caths was re-

quired; five were required to prove payment oi a written

instrument; two were required to prove most facts in

dispute. Forsyth, Trial by Jury (2 ed, Morgan rev. 1875)

197-198. Therefore, the rule had its origins as a means

of proof rather than as a method for judging, much as

today we require two witnesses to attest a will or to

prove perjury.

The practice of accumulation of oaths became a re-

quirement of unanimity as a result of the shift from

witness-jurors to a fixed number of judge-jurors. Lord

Devlin states it thus:

“The rule makes a startling exception to the ordinary

processes of English administrative life where de-

cisions, even the most momentous, are almost invari-

ably produced from a majority vote. Why is the

verdict of a jury thought to require a degree of assent

which for most purposes would be rejected as im-

practicable? The answer is that nobody ever planned

it that way; the rute is simply an antique. Twelve

witnesses were required to support the winning party

and naturally for that purpose their testimony had

to be unanimous; when the twelve witnesses were

translated into judges, the unanimity rule, notwith-

standing that its original significance had then de-

parted, remained with them. The rule was clearly

settled in 1367, long before the jury was exercising

any real judicial function; ... .” Devlin, supra, at

48.

From at least the Sixteenth Century, the English

common law generally required unanimity of its lay fact

finders,© though the practice was otherwise i: some of

the American colonies. See Williams v. Florida, supra,

399 US at 98 fn 5.

Of course, that is not the end of the inquiry. As Mr.

Justice Harlan said in his dissent to Duncan v. Louisiana,

supra, at 172:

“The Due Process Clause of the Fourteenth Amend-

ment ... does not comrmand adherence to forms

that happen to be old... .”

B. Because unanimity is no longer required in

England, and certain other Commonwealth jurisdiciions;

The rule was never free from criticism. See, e.g. Pro!-

fatt, supra at 115; Forsyth, supra 208-209. The latter

quotes Blackstone’s contemporary, Professor Christian,

as writing that: “the unanimity of 12 men, so repugnant

to all experience of human conduct, passions and under-

® Petitioners claim (Pet. Br 8, n 10) that a 1367 case estab-

lished the principle that an 11-1 verdict could not be received.

Forsyth, in his treatise on Trial by Jury, supra, at 199 cites two

Sixteenth Century cases in which 11 man verdicts were received

and the refractory juror imprisoned. Bro. Abr. Jurors pt 54, Fitz.

Abr. verdict 40. Counsel was unable to translate either abridge-

ment or tind anyba@y who could, and therefore relies on Forsyth’s

rendition of the Norman English.

standings, could hardly in any age have been introduced

into practice by a deliberate act of the legislature.”®

The first of several institutional attempts to repeal

the unanimity requirement was the Report of the Com-

missioners on Criminal Law (Londor. _830)° which ob-

served that full discussion and consideration of minority

views was essential, but that compromise and other

factors operated to give more the ‘llusion than the reality

of unanimity. The observation is equally true today, see

post p. 12. It therefore recommended that 8-4 or 9-3 ver-

dicts be accepted after a minimum of twelve hours of

deliberation designed to assure thorough deliberation.

That reform was finally accomplished in 1967. Parlia-

ment enacted the Criminal Justice Act of 1967, s. 13,

which provides for a unanimous verdict until the cor-

the Art of Packing as Applied to Special Juries (London 1821), he

noted that one need corrupt only a single juror, preferably “one,

any one, gained and properly armed, armed with the necessary

degree of patience,’ whereas under a majority system one so dis-

posed would have the more difficult burden of corrupting a

greater number. Id at 44.

Like Professor Christian, Bentham wrote:

“If the mode of forming verdicts had been the work of calm

reflection, working by the light of experience, in a compara-

tively mature and enlightened age, some number, certain of

affording a majority on one side, viz. an odd number, would, on

this as on other occasions, have been provided; and to the de-

cision of that preponderating number would of course have

been given the effect of the conjunct decision of the whole.” Id

at 45.

Bentham noted also that the unanimity rule “gives to any one of

these jurors... the power of all twelve,” particularly to that

juror “whose power of endurance is greatest.” Id at 47, 46. (Orig-

inal emphasis throughout.)

® See Devlin, supra, at 51; Forsyth, supra at 208-209.

pletion of a minimum deliberation period of two hours,

after which a verdict concurred in by ten jurors, or nine

out of ten jurors, may be received: 4

“(1) Subject to the following provisions of this sec-

tion, the verdict of a jury in criminal proceed-

ings need not be unanimous if—

(a) in a case where there are not less than

eleven jurors, ten of them agree on the

verdict; and

(b) in a case where there are ten jurors, nine

of them agree on a verdict; t

and a verdict authorized by this subsection is 4

hereafter in this section referred to as ‘a ma- ;

jority verdict’.

“(2) A court shall not accept a majority verdict of

guilty unless the foreman of the jury has stated

in open court the number of jurors who respect-

ively agreed to and dissented from the verdict.

“(3) A court shall not accept a majority verdict un- a

less it appears to the court that the jury have ]

had not less than two hours for deliberation or

such longer period as the court thinks reason-

able having regard to the nature and complex-

ity of the case.®”

It should also be noted that 8/15th majority verdicts,

without minimum deliberation time, are and always have

been allowed in Scottish criminal cases, although civil

verdicts must be unanimous. 5 Encyclopedia of the Laws

of Scotland, Crime 255 § 621; McDonald, Criminal Law

® The arguments pro and con, with the author’s statement of

the con having a bit the better of it, are summarized in Samuels,

Criminal Justice Act, 31 Modern Law Review 16, 24-27 (Loncon

1968). Harking back to Jeremy Bentham, great stress was laid

by the proponents upon the possibility of “nobbling’” or jury

tampering, a risk, which, while important, seems not sufficient in

itself to justify the departure from previous practice. A

of Scotland (4 ed, Mitchell rev 1929) 559. South Aus-

tralia, Westeru Australia Victoria, Tasmania and Queens-

land allow 5/6th majority verdicts in non-capital cases

despite a federal constitutional provision based upon the

Sixth Amendment. See Pannam, Trial by Jury and Sec.

tion 80 of the Australian Constitution, 6 Sydney L Rev

1, 2, 18 (1968) .©

C. Because the Anglo-American system has encour-

aged and accepted the illusion, not the r2ality of

unanimous verdicts. The majority verdict is more

effective, less fictitious than other accepted de-

vices;

The law can achieve the appearance, but not always

the substance of unanimity. Unanimity is commonly an

artificial condition among contentious, varying individual

human beings. People are not unanimous unless they are

forced to be—particularly so in this democratic era of

broadly representative juries who decide cases after an

adversary hearing designed to wrench their emotions and

intellects one way, then the other, and then back again.

See Forsyth, supra, at 204-206.

®“To be sure, other jury systems operate quite satisfactorily

| without requiring a public vercict that is unanimous. The Scottish

15 man jury, for instance, as is well known, decides with a simple

majority of votes. The 12 men juries on the European continent

' require usually a three-fourths majority for a finding of guilty;

anything less acquits the defendant, there can be therefore no jury

deadlock. An odd variant is probably the Brazilian jury which is

not allowed to deliberate; at the end of the trial each juror is

simply polled in writing, the votes are counted and the majority

decides.” Kalven & Zeisel, The American Jury: Notes For an Eng-

lish Controversy, 48 Chi Bar Rec 195, 201 fn (1967). See also

von Moschzisker, Trial by Jury (2d ed 1930).

Given the requirement of unanimity despite the na-

ture of the human animal, the law quickly developed

the necessary devices to enforce unanimity even upon

non-unanimous groups of people. Unanimity was as

often as not the expression of coercion rather than of

conviction. Proffatt, swpra, at 114. From the beginnings

int» more modern times, physical force was employed.

In the Thirteenth Century, a dissentient juror was

imprisoned or fined, Thayer, supra at 296-297, but that

practice was soon discontinued as too harsh.” In the time

of Edward III, there developed the short-lived practice

of carrying an undecided jury in a cart to *he next assize

until they were agreed on a verdict. III] Blackstone, Com-

mentaries 376, Forsyth, supra, at 200, Devlin, supra at

50-51.

When imprisonment and kidnapping ceased, the

law settled upon the method of compelling unani-

mous decision which prevailed until relatively recent

times, denial of food and drink. In Elizabethan times

it was customary for the prevailing litigant to celebrate

his victory by entertaining the fatigued jury with sup-

per, a practice which no doubt hastened successful de-

liberation. The device of abstinence was apparently still

common in 1875, the time at which Forsyth wrote his

treatise, Forsyth, supra, 200-201. In England, as late as

1858, a new trial was ordered because food and drink had

been passed up to the jury on a string thus increasing

® Although, see Thayer, supra, at 380-381 for similar practices

extending into the Eighteenth Century.

the ability to endure without a unanimous decision.

Cooksey v. Haynes, (1858) 27 Law J Rep (NS) Exch

371. The prectic continued in England until passage of

the Juries Aci (1870) s. 23 which authorized the judge

to allow jurors to purchase food anc’ drink if they were

unable to continue deliberations without it.

We no longer starve our juries into unanimous de-

cision, but we employ supntle means to overcome the

natural resistance to unanimity. Seventeen states allow

the trial court to summarize the evidence for the jury,

and eleven states and the federal system authorize the

trial court to summarize and comment upon (i.e. evalu-

ate for the jury) the evidence.” In a study of J01 cases

in which the judge employed such controls, the jury

failed to agree with the judge only once, and then by

an 11-1 vote.® Neither practice is permitted in Oregon.

Further, it is common practice in both England and the

United States to give a so-calied “dynamite” charge to

break up a jury deadlock.® Despite careful phraseology,

the clear implication of judicial desire and directive is

apparent to the dissenting juror who hears the “Allen”

charge.

Even in jurisdictions which are free from judicial

comment or summary and from the “Allen” charge, every

trial lawyer has often heard the standard admonition of

@ Kalven & Zeisel, The American Jury (1966) 420.

@ Id. at 427.

® Allen v. United States, 164 US 492 (1396). The English ver-

sion is set out in Devlin, supra, 52-53. Tne Oregon Supreme Court

has not considered the practice.

the trial judge to a deadlocked jury to return to the jury

room and continue their deliberations.

The deliberative process itself encourages the merger

of differing opinions into the illusion of unanimity. Com-

promise is common where dollar amounts are involved,

and it is clearly human nature to try to find middle

ground. The minority will frequently come over after

long deliberation because nobody wishes to be alone,

because of the social undesirability of being thought of

as obstinate, because it is ungracious to inconvenience

one’s companions, or simply to get home to one’s family.

See Barnet, The Jury’s Agreement—lIdeal and Real, 20

Or L Rev 189, 195 (1941), Forsyth, supra at 205-206;

Osborn, The Mind of the Juror 166 (1937).

The structure of criminal law and-procedure, with

its lesser included offenses and, in some states other than

Oregon, jury participation in sentencing, is particularly

conducive to compromise verdicts wrapped in the appear-

ance of unanimity. One commentator observed ac-

curately:

“In theory there are no compromise verdicts in crim-

inal cases. Yet there are situations where the jurors

may reach agreement just to end deliberation—not

because all of them are convinced beyond a reason-

able doubt that the defendant is guilty or innocent.

Other opportunities for a compromise occur when

the jury is permitted to find the defendant guilty of

a crime within a crir::e. In both of these situations

there is a possibility that the jurors will not reach

true unanimity. Of course this possibility is always

present but the chance is greater when an alternative

conclusion is available to the jury.” (Footnotes omit-

{

ted.) Comment, Waiver of Jury Unanimity—Some

Doubts About Reasunable Doubt, 21 U Chi L Rev

438, 444 (1954) .

Were the law to steadfastly insist upon unanimity in

all cases, it would be impossible to resolve issues ex-

peditiously except in unusual cases. That is why the law

has necessarily developed the various devices, e.g.

lengthy sequestered deliberation, “dynamite” charges,

‘structural encouragement of compromise, all designed

to overcome the unlikelihood of spontaneous and volun-

tary unanimity.

The allowance of a verdict by a substantial majority

is a direct, realistic and candid device to accomplish the

same result as the jorceful and fictitious practices just

described. If realism is to be encouraged and fiction dis-

couraged, then the law would do well to endorse the

Oregon system which allows each juror to register his

conviction, and to discourage the practice of forcing

juries into artificial agreement by disguised pressures.

D. And because distinguished American legal groups

have endorsed its qualification and four states

have modified the unanimity requirement.

If unanimity is not a part, much less an essential part,

of the Anglo side of the Anglo-American regime of

ordered liberty, it also has less than unanimous accept-

ance on the American side.

The American Law Institute, Code of Criminal Pro-

cedure 137 § 355 (1931) provided the model for the

Oregon constitutional provision:

“In capital cases no verdict may be rendered un-

less all the jurors concur in it. In other cases of

felony a verdict concurred in by five-sixths of the

jurors, and in cases of misdemeanor a verdict con-

curred in by two-thirds of the jurors may be ren-

dered.©

“® These proportions are based on a jury of twelve. Where a

jury may consist of less than twelve some other proportions

may be thought advisable.”

Most recently, the English Criminal Justice Act

(1967) s. 13 was endorsed as a proper pattern for Ameri-

can practice in the report of the American Bar Associa-

tion Pruject on Minimum Standards for Criminal Justice,

Standards Relating to Trial by Jury, 25-28, § 1.1(d) (Ap-

proved Draft 1968). The reporters noted that the reduc-

tion of the number of mistrials caused by hung juries in

an era when criminal justice is oft times denied by the

deiay of congested dockets, would be a significant im-

provement. The value of full deliberation and consider-

ation of minority viewpoints within the jury room was

appreciated, the report concluded that the two hour min-

imum deliberation time was sufficient to assure those

purposes of the jury system. In sum, it concluded that

the English model was a workable model for the convic-

tion of the guilty and the protection of the innocent.

In practice, several American colonies had informal

trial practices which included majority verdicts, Wil-

liams v. Florida, supra, at 98 fn. 45; Heller, The Sixth

Amendment (1951) 16-18. Petitioners’ Brief 19, recog-

nizes that four states today use less than unanimous

verdicts. Montana and Oklahoma allow three-quarters

majority verdicts in misdemeanor cases, Louisiana allows

nine-twelfths verdicts in non-capital felony cases and

Oregon allows ten-twelfths verdicts in non-capital felony

and appealed misdemeanor cases. Also, Idaho allows

five-sixths verdicts in misdemeanor cases, Idaho Consti-

tution, Art. I, sec. 7. The unanimity requirement was not

and is not unanimously accepted in the United States.

Conclusion regarding the Anglo-American regime of

ordered liberty and the unanimity requirement

The unanimous verdict is clearly not a requisite com-

ponent of “the Anglo-American regime of ordered lib-

erty” because it is an historical accident, because it is

not required in England or certain parts of the Common-

wealth, and because, on the American side, five states

do not require it and the two most prestigious American

legal institutions have called for the allowance of ma-

jority verdicts in criminal cases.

II. Unanimity is not required by the Sixth Amend-

ment because it was omitted from the Constitution

and specifically deleted from the Sixth Amend-

ment.

The American colonies did not automatically adopt

unanimous jury verdicts as the means for resolution of

criminal charges. Early in the colonial period, Con-

necticut eliminated the unanimity requirement and al-

lowed simple majority verdicts with the judge

empowered to break a tie. The requirement of unanimity

was also eliminated in the Carolinas. In Pennsylvania,

criminal trials were informal affairs, more like arbitra-

tion than trials, with six cr seven man juries deciding

by majority vote. The practice was otherwise in Mary- |

land, Virginia and, later, North Carolina. Heller, The

Sixth Amendment (1951) 16, 18, 22-23.

During the constitutional convention, an attempt was

made to amend Article III section 2 by adding the words:

“and a trial by jury shall be preserved as usual in

criminal cases.”

Opponents argued that the practice was so diverse among

the states that “usual” had no meaning and the amend-

ment failed. 5 Elliott, Debates on the Adoption of the

Federal Constitution (1907) 550.

There was sufficient criticism of the new Constitu-

tion for failure to set forth the details of the right to

trial by jury, that Hamilton deemed it desirable to ex-

plain the omission. In The Federalist Papers, No. 83, he

wrote that it was impossible for. the states to come to

agreement and undesirable to set forth detail in the

Constitution because the practice among the states was

so diverse as to both subject matter and procedure. To

illustrate the procedural differences, he described the

practice of four eastern states which is of particular in-

terest on the subject of unanimity:

“There is an appeal of course from one jury to another

til there have been two verdicts out of three on one

side.” (Original italics.)

Upon adoption of the Constitution, there were 103

requests for amendments originating from five states.

Among them were expressions from New York, Virginia

and, as petitioners point out, North Carolina, that unan-

imous jury trials should be guaranteed. Heller, supra at

29. North Carolina, incidentally, did not actually include

the unanimity requirement in its requested amendments,

but only in the preceding Declaration of Rights. 4 Elliott’s

Debates, supra, at 242-247. James Madison assumed the

task of reformulating and submitting the proposed

amendments to the Congress.®

Madison’s proposal for an amendment, whi-h ulti-

mately became the Sixth Amendment, included specific

reference to the unanimity requirement. It read:

“The trial of all crimes . . . shall be by an in -

partial jury of freeholders of the vicinage, with the

requisite of unanimity for conviction, of the right of

challenge, and other accustomed requisites ... .”

The amendment passed the House of Representatives in

substantially that form, but the Senate deletea every

clause except that relating to grand jury indictment and

presentment. Two days thereafter, a House motion to

restore the unanimity clause, that is the original language

except for the freeholder clause, failed of passage by an

even vote. The Sixth Amendment in its present form

was then approved by the House. Madison had tried in

committee to restore at least the “accustomed requisites”

® The majority opinion in Williams v. Florida, supra, at 94-97,

relying heavily upon Heller, The Sixth Amendment (1951), sets

out the legislative history of the Sixth Amendment fully: Counsel’s

research has only confirmed Mr. Justice White’s account and

added nothing consequential. Therefore, this brief will only sum-

marize the pertinent parts of that account to demonstrate the

deletion of the unanimity requirement from the Sixth Amendment,

without repetition of the citxtions.

clause, but failed because of the diversity of procedure

among the states.®

Thus the original draft of the Sixth Amendment

specifically required unanimity, the requirement was

specifically deleted by Congress and the restoration ef-

fort failed. The Sixth Amendment went successfully to

the States for ratification with the unanimity clause

stricken. For the Supreme Court to reinsert the re-

quirement which the Congress specifically deleted, as

petitioners urge, would be to judicially override the ex-

press votes of Congress and of the States in the drafting,

submission and ratification of the Amendment.

III. Unanimity is not required by the Sixth Amend-

ment because it is not essential to the purpose-of

trial by jury—

The purpose of criminal trials is to fairly determine

the guilt or innocence of those persons whom the gov-

ernment has accused of crime.

The language »f Williams v. Florida, supra, at 99-100,

is here again important:

“The relevant inquiry, as we see it, must be the func-

tion that the particular feature performs and its re-

lation to the purposes of the jury trial... ..

“The purpose of the jury trial, as we noted in

Duncan, is to prevent oppression by the Government.

® Pertinent to this case, Madison’s letter to Pendleton, describ-

ing his disficulties with the eleven representatives of the states,

continued:

“The difficulty of uniting minds of men accustomed to think

and act differently can only be conceived by those who have

witnessed it.”

‘Providing ar: accused witn the right to be tried by a

jury of his peers gave him an inestimable safeguard

against the corrupt or overzealous prosecutor and

against the complaint, biased or eccentric judge.’

Duncan v. Louisiana, supra, at 156. Given this pur-

pose, the essential feature of a jury obviously lies in

the interposition between the accused and his accuser

of the commonsense judgment of a group of laymen,

and in the community participation and shared re-

sponsibility that results from that group’s determina-

tion of guilt or innocence... . .

A. Because a 10/12 verdict requirement is an ade-

quately substantial shield against judicial or

prosecutorial oppression;

The insistence of the colonists upon trial by jury

without specification of the mode of jury trial illustrates

their cor.cern that they be subject to the mercies of their

lay peers and not those of the judges. The contemporary

distrust of judges is demonstrated by this denunciation

of English judges:

“For two hundred years the judges in England sat on

the bench condemning to the penalty of death, every

man, woman and child who stole property to the

value of five shillings and during that time not one

judge remonstrated against the law.” By John Bright,

quoted by Henry James and, in turn, by Heller,

supra, at 13.

The question, then, is whether a requirement that

ten out of twelve jurors must concur to determine guilt

or innocence, is a sufficient substantial interposited

safeguard to prevent oppression. It clearly is.

First, it is important to note that unanimity per se

is not essential to such protection. It is but one means to

assure the adequacy of protection against governmental

arbitrariness. The importance of unanimity increases as

the number of jurors diminishes.” The interposition of

a jury cf 100, 99 of whom must concur to conv:ct, or of

1000 of whom 99§ are required, would be a far more sub-

stantial safeguard than the requirement of six unani-

mous jurors which Williams allows, even though unani-

mity is not required.” Aliso, unanimity is clearly not es-

sential to, or a guarantor of the quality of decision, cf.

Oregon v. Mitchell, — US — (1970); cf. Jacobellis v.

Ohio, 378 US 184 (1964). Therefore, the question is not

whether unanimity is required, but -ather whether the

jury procedure in question, unanimous or not, is suf-

ficiently substantial to perform its safeguard function

and prevent governmental oppression.

Whether ten out of twelve is sufficiently substantial

a shield is necessarily a subjective judgment. It is diffi-

cult to argue the merits beyond affirming or denying the

proposition. It is significant, though, that England is

satisfied that a 10/12 majority verdict is an adequate

safeguard, Criminal Justice Act (1967) s. 13, and that the

American Law Institute in 1931 and the American Bar

® See, e.g., Tamm, The Five-Man Civil Jury: A Proposed Con-

stitutional Amendment, 51 Geo L J, 120, 139-140 (1962).

® The argument reductio ad absurdum can go the other way:

Should six jurors out of eleven be allowed to convict or acquit?

Obviously not, because the simple majority is not sufficiently sub-

stantial an interposition to safeguard against oppression. We shall

not attempt to draw lines. Oregon too can get off the “slippery

slope” before it reaches bottom. Cf. Williams, n 28.

eee ee

Association Project on Mirimum Standards for Crim-

inal Justice in 1968, both distinguished assemblages of

legal scholars and practitioners,® endorse that propor-

tion as being proper.

This Court held in Williams that the judgment of six

men interposed between the accused and his government

is a sufficie:itly substantial protection against oppres-

sion. The persuasion of ten men out of twelve, following

a full and fair adversary hearing on the facts and ap-

propriate instruction of law, that the guilt of the de-

fendant has been proved beyond any reasonable doubt,

provides a high hurdle for the prosecution to overcome.

It belittles jurors to suspect that only two of twelve

citizens would recognize governmental overstepping or

that ten of twelve would accede to oppression. The re-

quirement that ten members of the jury concur is at least

an equally substantial protection as the six man jury

authorized in Williams.

It is not necessary, as petitioners urge, to carve unani-

mity into the immutable granite of the Constitution in

order to assure consideration of minority opinion in the

iury room. The simple procedural device of a minimum

period of deliberation—statutorily required in England

and recommended by the ABA Project—will accomplish

® To illustrate, on the ABA Project, Minimum Standards Re-

lating to Trial By Jury was reported out of the Advisory Com-

mittee on the Criminal Trial chaired by the Hon. Walter V.

Schaefer and reported by Professor Wayne R. LaFave. The re-

port was approved by the Special Committee on Minimum Stand-

ards for the Administration of Criminal Justice chaired by the

Hon. J. Edward Lumbard.

that purpose without giving to the scant minority the

absolute power to prohibit decision. The minimum de-

liberation provision of the English Criminal Justice Act

of 1967 has much merit—it seems inappropriate to re-

sort to constitutional prohibition to accomplish what a

simple remedial statute could more readily do. °

B. Because 10/12 verdicts do not alter the requisite

burden of proof beyond reasonable doubt;

Petitioners in brief echo the doubts raised by the

Court in Williams: Does the reduction of the requisite

proportion of jurors diminish the required standard of

proof beyond reasonable doubt?®

The idea that proof beyond reasonable doubt requires

that all twelve jurors concur,® is erroneous. The propo-

sition confuses burden of proof and burden of persuasion.

“We intimate no view whether or not the requirement of

unanimity is an indispensible element of the Sixth Amendment

jury trial. While much of the above historical discussion [on the

adoption of the Sixth Amendment] applies as well to the unan-

imity as to the 12-inan requirement, the former, unlike the latter,

may well serve an important role in the jury function, for ex-

ample, as a device for insuring that the Government bear the

heavier burden of proof. [citations]” Williams v. Florida,. supra,

399 at 100 fn 46.

® Petitioner cites Hibdon v. United States, 204 F2d 834, 838

(6 Cir 1953) for the proposition. That case was decided upon two

additional grounds: that the stipulation to a majority verdict was

contrary to Rule 31 (a) FRCrP, the federal statutory requirement

for unanimous verdicts; and that by requesting the defendant to

stipulate to a majority verdict in the presence of the jury which

had reported its deadlock, the judge compelled the defendant to

involuntarily waive his right to unanimity. Particularly under

the hard facts of the case, the latter two grounds stand up better

than the “inextricably interwoven” paragraph cited at Petitioner’s

Brief 13. See Fournier v. Gongakz, 269 F2d 26 (i Cir 1969).

If the dissenting vote of a juror meant that the state had

failed in its burden of proof, then a hung jury would be

the equivalent of an acquittal and a retrial would be

double jeopardy. Of course, it is not. Dreyer v. Illinois,

187 US 71 (1902). In that situation, the state has simply

failed to persuade, an entirely different burden tlian the

burden of proof. Comment, Waiver of Jury Unanimity

—Some Doubts Ahout Reasonable Doubt, 21 U Chi L

Rev 438, 441-445 (1954).

Whatever the vote of the jurors, the burden of proof

beyond reasonable doubt remains constant. Whether

that burden has been carried is a legal question for the

court to determine at the end of the state’s case on the

defense motion for judgment of acquittal. If there is suf-

ficient evidence from which proof beyond reasonable

doubt may be inferred, the case goes to the jury. If not,

the case is dismissed.

The burden of persuasion in a criminal case is that

burden imposed upon the prosecution to convince the

requisite number of jurors of the truth of the facts it

seeks to prove. A decision by ten of twelve jurors

in no way diminishes the state’s burden of proof of guilt

because each of those ten must be persuaded of guilt

beyond a reasonable doubt.

Whether it is constitutionally sufficient to empower

‘en of twelve jurors to convict if they are persuaded be-

yond reasonable doubt, must be determined again in

light of the purposes of the Sixth Amendment right to

trial by jury: does that system interpose the common-

sense judgment of one’s peers between him and his

government to such a degree as will assure against an

oppressive government. The persuasion of ten of twelve

citizen-jurors beyond reasonable doubt is sufficient for

the accomplishment of that constitutional purpose.

The Oregon Supreme Court answered that propo-

sition realistically:

“... In our opinion a failure of one or two

jurors to agree with the verdict of their fellow jurors

is more likely to be caused by a failure of the dis~

senters to correctly understand the evidence or the

court’s instructions or by some extraneous cause hav-

ing no relation to the quantum of proof. Proof beyond

a reasonable doubt is not like a physical or chemical

property the presence of which can be objectively

ascertained. Unless the absence of proof is so con-

spicuous that a judge can hold ‘as a matter of law’

that proof beyond reasonable doubt has not been

established, there is no test to determine whether

such a degree of proof has been adduced. It does not

appear that the nonconcurrence of one or two jurors

signals such a defect.” State v. Gann, 254 Or 549 at

563, 463 P2d 570 (1969). (Set out fully post, p. 33.)

We agree with petitioners that it is essential in our

democracy that the jury be broadly representative of

the community as a whole. Williams holds that a six-

man jury is sufficient to assure such representation where

there is no deliberate exclusion. While none should be

excluded and each should be heard, it is clearly not

essential to Anglo-American jurisprudence that each

should have the power of veto.

C. Because 10/12 verdicts enjoy public confidence;

Finally, petitioners assert without demonstrating,

that unanimity is essential if there is to be public con-

fidence in the criminal process® (Petitioners’ Brief 17),

but the unanimity requirement is the chance product of

the common law whereas the Oregon procedure was

adopted by public referendum. If the public lacks con-

fidence in the criminal justice system these days, it is

surely not for the reason that 10/12 verdicts are allowed.

D. Because allowance of 10/12 verdicts works by

improving the administration of justice and fa-

cilitating the decisional process.

While the primary and historic purpose of the jury

system is to provide a shield, its primary function is to

decide cases and to do so fairly, accurately and expe-

ditiously. Oregon’s modification of the unanimity pro-

® Petitioners support their assertion with a beautifully ex-

pressed paragraph from von Moschzisker, supra, 299-300, about

“general satisfaction and public contentment” and how a con-

victed felon will “accept the verdict with much better grace than

one reached by a split jury.” Von Moschzisker obviously speaks

the feelings of an earlier age. His authority seems rather di-

minished by his next argument justifying the unanimity require-

ment: that it is necessary for the preservation of our system of

private property. He adopts as “well said” the following quota-

tion from Joseph L. Choate:

“Imagine a jury aroused to even just indignation by the op-

pression, or even misconduct, of a rich individual or gigantic

corporation against an unfortunate plaintiff, and not restrained

by the cooler sense and judgment of the three or four most

conservative or intelligent of their number, and you can easily

foresee what havoc they would make with the rights of

property.” Id at 300-301.

There is too much rhetoric and too little analysis on this issue.

cess removes several impediments to the decisional

process without doing injury to its safeguard role.

The most common impediment to the decisional pro-

cess is the possibility of mistrial because of one or two

jurors prevent decision.® While prisoners languish and

accused defendants on bail operate under a cloud await-

ing a trial date which is delayed by cungested dockets,

while the public is prey to untried professional criminals,

while the correctional process is rendered ineffective in

part because of its remoteness in time from the commis-

sion of the crime, and while court administrators strive.

merely to retard the accelleration of delay in the criminal

courts, mistrials and retrials are a luxury society can ill

afford. It is reported that states with unanimity re-

quirements suffer a 5.6% mistrial rate whereas in states

which allow non-unanimous verdicts the rate is reduced

to 3.1%. That constitutes a 45% reduction in the number

of mistrials due to deadlock. Kalven & Zeisel, The

American Jury (1966) 461. A reduction of the waste

of judicial time and resources by 45% is a significant

achievement in the administration of criminal justce.

Oregon jury procedure is one substantial reason that

Oregon’s dockets, and particularly those of Multnomah

County (Portland), are among the most current in the

nation.

Another impediment which, since before the time

® Actually, it appears that the chances are greater that a po-

tential acquitting jury will hang than that a convicting one will

do so. See Kalven & Zeisel, The American Jury (1966), Table 127

at 462, based upon a sampling of 156 cases.

of Jeremy Bentham, occurs occasionally but is dis-

covered rarely, is jury tampering. It is particularly a

threat in the prosecution of organized crime. Cf. Hoffa

v. United States, 385 US 293 (1966); Osborn v. United

States, 385 US 323 (1966). The substantial majority

verdict system renders jury tampering extremely dif-

ficult, although Hoffa attempted to fix more than two,

and unlikely of success.

The Oregon system succeeds. Nowhere does Peti-

tioners’ Brief complain of unfairness or oppression or

insufficiency of proof either generally or in the cases at

bar. Critics of the system have not pointed to failures

of justice under it. Cf. Kirkpatrick, Should Jury Ver-

dicts Be Unanimous in Criminal Cases?, 47 Or L Rev

417 (1968). Kalven and Zeisel, in recommending against

English adoption of the substantial majority verdict sys-

tem, acknowledged:

ss And then there is, of course, the State of

Oregon which allows the very 10:2 and 11:1 verdicts

which the Criminal Justice Bill proposes for Eng-

land, and justice in Oregon has not broken down;

but then also nobody has ever claimed that Oregon

justice is superior to justice elsewhere.” Kalven &

Zeisel, The American Jury, Notes for an English Con-

troversy, 48 Chi Bar Rec 195, 201 fn (1966).

Due process, of course, does not require that Oregon

justice be superior to justice elsewhere. It requires only

that Oregon justice meet Anglo-American expectations

of fairness, expedition, reliability and respect for indi-

vidual freedom. Oregon process meets those expecta-

tions in a manner which, judging from. the action of

Parliament and the recommendations of the American

Bar Association Project and the American Law Institute,

may provide a laboratory model for the future develop-

ment of criminal procedure. Absent some showing of

injustice or unfairness, and the petitioners have made

none, the Oregon procedure should be upheld as con-

stitutionally permissible.

CONCLUSION

The Oregon judgments should be affirmed.

Respectinilyysubmivted,

LEE JOHNSON,

Attorney General of Oregon

JACOB B. TANZER,

Solicitor General of Oregon

THOMAS H. DENNEY

Assistant Attorney General

Counsel for Respondent

EFI RENT TL PEPIN

APPENDIX

STATE OF OREGON, Respondent, v.

TIMOTHY EARL GANN,

Appellant.

254 Or 549, 463 P.2d 570 (1969)

DENECKE, J.

The defendant was convicted of holding a person

as a hostage within the Oregon State Penitentiary..

Subsequently, an information of previous convictions

was filed and the defendant was sentenced to life im-

prisonment. He appeals.

1. The defendant contends that he was convicted in

violation of the sixth and fourteenth amendments to

the Federal Constitution because he was convicted by

a verdict of ten of twelve jurors.

In 1934 the people of Oregon amended the Oregon

Constitution as follows: “* * * [PJrovided, how-

ever, that in the circuit court ten members of the jury

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

except a verdict of guilty of first degree murder, which

shall be found only by a unanimous verdict, and not

otherwise; * * *.” Oregon Constitution, Art I, $11.

_ Prior to the amendment of the Oregon Constitution

the United States Supreme Court held that the Sixth

Amendment required that in federal trials the jury

consist of twelve men and stated that the jury verdict

in such cases must be unanimous. Thompson v. State

@®“In ali criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of the

State and district wherein the crime shall have been committed

* * #” JU. S. Const., Amend. VI.

“* * * 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, liberty, or

property, without due process of law: nor deny to any person

within its jurisdiction the equal protection of the laws.” U. S.

Const., Amend. XIV, § 1.

of Utah, 170 US 348, 351, 353, 18 S Ct 620, 42 L Kd

1061 (1898). A similar view was also expressed in

Maxwell v. Dow, 176 US 581, 586, 20 S Ct 448, 494,

44 L Ed 597 (1900). However, in the latter case it

was held that the Constitution of the United States,

including the Due Process Clause of the Fourteenth

Amendment, did not require the states to try criminal

cases with a jury and did not prohibit a state from

providing that a jury in nonecapital criminal trials

would consist of eight jurors instead of twelve. Hence,

the Oregon constitutional provision was not thought to

present any problem either at the time of its adoption

or for many vears thereafter.

The decisions of Duncan v. Louisiana, 391 US 145,

88 S Ct 1444, 20 L Ed2d 491, rehr den 392 US 947,

88 S Ct 2270, 20 L Ed2d 1412 (1968), and Bloom v.

Illinois, 391 US 194, 213, 88 S Ct 1477, 20 L Ed2d

522 (1968), have recently caused uncertainty as to the

validity of Art I, §11, of the Oregon Constitution.

Those eases overruled Maxwell v. Dow, supra (176

US 581), and its successors and decided that the right

to a trial by jury in a criminal case, as guaranteed in

federal trials by the sixth amendment to the Federal

Constitution, is guaranteed in state trials by the Due

Process Clause of the Fourteenth Amendment.

In the case at bar, the defendant and the dissent

argue that defendants in state criminal trials can be

convicted only by a unanimous twelve-man jury ver-

diet because the Sixth Amendment has been held to

require a unanimous verdict by a jury of twelve men

in federal criminal trials, and the Sixth Amendment

right to a jury trial is now applicable to the states

by way of the Fourteenth Amendment.

Tt should be noted, however, that it has not been

held that all the aspects of the right to a jury trial

in federal criminal cases apply identically to state

eriminal trials. Mr. Justice White, writing for the

majority in Duncan v. Louisiana, supra (391 US 145),

observed at 158, note 30, that Louisiana asserted that

if trial by jury is made mandatory on the states, all

the incidents of trial by jury which have previously

been held to be guaranteed by the Sixth Amendment

in federal trials will also be mandatory. Mr. Justice

White did not answer this contention, but rather stated

that the Duncan decision would not require wide-

spread changes in the laws of the states. He gave

as a reason for this statement: “First, our decisions

interpreting the Sixth Amendment are always sfb-

ject to reconsideration * * *.” 391 US at 158. Also,

Mr. Justice Fortas specially coneurring in the major-

ity decision stated:

“But although I agree with the decision of the

Court, I cannot agree with the implication, see

ante, at 158-159, n. 30, that the tail must go with

the hide: that when we hold, influenced by the

Sixth Amendment, that ‘due process’ requires that

the States accord the right of jury trial for all but

petty offenses, we automatically import all of the

ancillary rules which have been vr may hereafter

be developed incidental to the right to jury trial

in the federal courts. I see no reason whatever,

for example, to assume that our decision today

should require us to impose federal requirements

such as unanimous verdicts or a jury of 12 upon

the States. We may well conclude that these and

other features of federal jury practice are by no

means fundamental—that they are not essential

to due process of law—and that they are not ob-

Nigatory on the States.” See Duncan v. Louisiana,

supra (391 US at 162). Bloom v. Illinois, supra

(3891 US at 213).

In our opinion, the case of De Stefano v. Woods

(Carcerano v. Gladden), 392 US 631, 88 S Ct 2093,

20 L Ed2d 1308 (1968), decided after Duncan v.

Louisiana, supra (391 US 145), and concerning a ten-

to-two Oregon verdict does not offer any indication

of how the Court will decide the question of unanimity.

The Court held that Duncan v. Louisiana, supra (391

US 145), did not apply because the trials were held

before that decision. During the current term the

Court has again used the same approach. In De

Backer v. Brainard, 396 US 28, 90 S Ct 163, 24 L Ed2d

148, decided November 12, 1969, the appellant asked

the Court to rule that a jury trial was constitution-

ally required in state juvenile proceedings. The Court

instead held that Duncan v. Louisiana, supra (391 US

145), would not be applied to juvenile ' proceedings

held before the decision in Duncan v. Louisiana, cit-

ing De Stefano v. Wood. We cannot find in either

decision any indication of how the Court would de-

cide the question which the Court avoided answering.

The contention that the Fourteenth Amendment

requirés a unanimous verdict of twelve jurors is un-

acceptable for two principal reasons: (1) its corner-

stone, the decision that the Sixth Amendment requires

a twelve-man unanimous verdict, was reached by a

sterile historical approach to the Bill of Rights which

is now—and in our opinion very vorrectly—usually

ignored by the United States Supreme Court; and

(2) the “right” in issue, a unanimous verdict rather

than a verdict by ten of the twelve jurors, is not of

sufficient consequence to be fitted with constitutional

rigidity.

In Thompson v. Utah, supra (170 US 343), the de-

fendant was convicted of a felony by a twelve-man

jury in the Utah territorial court. The defendant ob-

tained a new trial. Utah became a state and the sec-

ond trial was in a Utah state court. As provided by

Utah law, an eight-man jury tried and convicted the

defendant. A majority of the Court*held that because

the crime had been committed in the territory of Utah,

federal law applied and the Sixth Amendment re-

quired a trial hy a twelve-man jury and by dictum

stated that uranimity was required of the twelve

jurors.

Mr. Justice Harlan, writing for the majority, cited

the Magna Charta, Hale, The Ilistory of the Pleas

of the Crown, Bacon’s Abridgment, all to the effect

that the common law required a twelve-man unani-

mous jury and, therefore, the Sixth Amendment so

required.

Mr. Justice Harlan was relying upon the same

principle of constitutional construction that he stated

in his dissent in ITurtado v. People of California, 110

US 516, 542, 4 S Ct 111, 28 L Ed 232 (1884). He

there quoted from Murray v. Land & I Co., 59 US

272, 276-277 (18 How 1855):

«c# * * To what principles are we to resort

to ascertain whether this process enacted by Con-

gress is due process? To this the answer must be

two-fold. We must examine the Constitution itself

to see whether this process be in conflict with

any of its provisions. If not found to be so, we

must look to those setilec usages and modes of

proceeding existing in the common and statute law

of England before the emigration of our ancestors,

and which are shown not to have been unsuited to

their civil and political condition by having been

acted on by them after the settlement of this coun-

try.’” 110 US at 542.

For amplification of Mr. Justice Harlan’s views on

due process see Johns Hopkins University Studies in

Historical and Political Science, 59-82 (1915).

Mr. Justice White in Duncan v. Louisiana, supra

(391 US at 151, n 16), pointed out that Mr. Justice

Harlan was historically inaccurate in stating that the

Magna Charta was the origin of the guarantee of a

right of trial by jury. Historians now are in general

cP TNR

agreement that the right of trial by jary was not one

of the rights wrung from King John i in Magna Charta.

Clark, Magna Carta and Trial by Jury, 58 Am Ti Rey

24 (1924).

Nevertheless, Mr. Justice Harlan was probably

correct that a twelve-man unanimous verdiet was the -

practice in Kngland as well as the-colonies in the lat-

ter 18th Cenisry. Iistorians now, however, generally

believe that both the requirements of twelve jurors

and of unanimity evolved by accident.

S'r Patriek Devlin writes:

“This leads naturally to a consideration of the

unanimity rule. The rule makes a startling exeep-

tion to the ordinary processes of Iinglish admin-

istrative life where decisions, even the most mo-

mentous, are most invariably produeed from a

majority vote., Why is the verdiet of a jury thought

to require a degree of assent which for most pur-

poses would he rejected as impractieable? The:

answer is that no one ever planned that it should

be that way; the rule is simply an antique. ‘i'welve

witnesses were required to support the winning

party and naturally for that purpose their testi-

mony had to be unanimous: when the twelve wit-

nesse. were translated into judges, the Unanimity,

rule, hotwithstanding that its original signifieance

had then departed, remained with them. * * *%”

Devlin, Trial by Jurv 48 (1956).

Aceord, Proffatt, Jury Trial, 114-115 (i877), and Les-

ser, History of the Jury System, 188, note 30 (1894),

but.for a somewhat different version, see 197, note 42.

Proffatt has still another theory of origin, which also

has no relationship to the modern rule of unaniinity.

An accident of English history is not a firm foun-

dation for a cornerstone of American constitutional.

law; nevertheless, a majority of the United States

Supreme Court continued to search Knglish legal his-

tory to determine the scope of the Americ. n constitu-

tional guarantee of trial by jury.. The ultimate may

have been reached in Dimich ¢. Schiedt, 293 US 474,

55 8S Ct 296, 79 L Ed 603, 95 ALR -1150 (1935). The

majority held that a federal district court violated

the Seventh Amendment guaranteeing a jury trial in

civil eases because the trial court set aside a verdict

in an automobile damage ease on the ground that the

damages awarded were insufficient. Mr. Justice Stone,

joined by Mr. Chief Justice I!ughes and Messrs. Asso-

ciate Justices Brandeis and Cardozo, dissented and by

his ~‘atement of ‘the question revealed the sterility of

the majority’s reasoning:

“~ * * The question iv 2 urrrow one: whether

there is anything in the Seventh Amendment or in

the rules of the common law, es. it had developed

hefore the adoption of the Amendment, whieh

would require a federal appellate court to set aside

the denial of the motion merely heeause the partic-

ular reasons which moved the trial judge to deny

it are not shown to have similariy moved any nz

lish judge hefore 1791.

“The Seventh Amendinent commands that ‘in

suits at common law,’ the right to trial by jury

shall be preserved, and that ‘no fact tried by a

jury shall be otherwise re-examined by any court

of the United States, than aecording to the rules

of the common law.’ Such a provision of a great

instrument of government, intended to endure for

unnumbered generations, is coneerned with sub

stanee and not with form. There is nothing in its

history or language to suggest that the Amendinent

had anv purpose but to preserve the essentials of

the jury trial as it was known to the common law

before the adoption of the Constitution. For that

reason the Court has often refused to eonstrne it

as intended to perpetuate in changeless form the

minutiae of trial practice as it existed in the Eng-

lish courts in 1791. From the beginning, its lan-

guage has been regarded as but subservient to the

single purpose of the Amendment, to preserve the

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essentials of the jury trial in actions at law, serv-

ing to distinguish them from suits in equity and

\ admiralty, see Parsons v. Redford, 3 Pet. 433, 446,

and to safeguard the jury ’s function from any

\ encroachment which the common law did not per-

mit.” 293 US at 490-491.

2. In an earlier decision, a majority of the Court,

Mr. Justice Harlan dissenting, expressed the same re-

pugnance of the sterile historical method of construe-

tion:

\ s* * * But to hold that such a characteristic

[it must be part of the Hnglish common law and

suited to the American colonies] is essential to

ue process of ley, would be to deny every quality

of the law but its age, and to render it ineapable

of progress or improvemeat. It would he to stamp

upon our jurisprudence the unchangeableness at-

tributed to the laws of the Medes and Persians.”

538509) v. People of C ‘alifornia, & oat ae (110 US at

528-529) .©

The United States Supreme Court has on occasion *

eontinued to bolster the grounds for their decisions

® Our fYecent decision in Cornelison v. Seabold, 254 Or 401,

460 P2d 1009 ¢1969), construing the Oregon constitutional protec-

tion of civil\\jury trials, might be construed as following this same

sterile apertach We believe there is a neg eelyrars The Oregon

Constitution was not intended to guarantee jury trials in all civil

proceedings; therefore, it is appropriate to inquire into historical

practice to find a basis for distinguishing between civil cases re-

quiring a jury and others not requiring one. In addition, “* * *

the constitutional right of trial by jury is not to be narrowly con-

strued, end is hot limited strictly to those cases in which it had

existed before the adoption of the Constitution, but is to be ex-

tended to cases of like nature as they may hereafter arise.” State

v. 1920 Studebaker Touring Car, 120 Or 254, 263, 251 P 70i, 50

ALR 81 (1927).\ Hence, the attention to history in Cornelison,

supra, was in accordance with the general task of the Oregon

Supreme Court to determine which civil proceedings among those

not set forth in the Constitution require jury trials. The court has

an entirely different function in determining the scope of the trial

by jury in criminal yroceedings guaranteed by the United States

Constitution.

by citing Iinglish legal history. Fay v. No'a, 372 US

391, 83 S Ct 822, 9 L Ed2d 837 (1963). They have not,

however, in recent yeurs, decided constitutional rights

on the basis of English and colonial practices ii i791.

When legal history may not support the Court’s view

of what the constitution should mean today it has

made no reference to history. The change in the ap-

plication of the right against self-incrimination as

contained in the Fifth and Fourteenth Amendments is

an example of the latter.

In 1908 when Twining v. New Jersey, 211 US 78,

29 S Ct 14, 53 L Ed 97, was decided the court appar-

ently wholeheartedly subscribed to the historic ap-

proach—a fundamental question being, what was the

common law of England in 1791 and what parts of it

were well accepted in the colonies just prior to the

American Revolution? The majority disagreed with

Mr. Justice Harlan upon the answer to that historical

question. The majority concluded that the privilege

against self-incrimination was not a part of due proc-

ess of law as practiced in England and the colonies,

but rather, was merely a principle of the law of evi-

dence. The majority held, therefore, that neither the

Fourteenth Amendment by itself nor the Fourteenth

Amendment incorporating tie Fifth Amendment re-

quired the states to observe the right against self-

inerimination.

Malloy v. Hogan, 378 US 1, 84 S Ct 1489, 12 L

Ed2d 653 (1964), overruled Twining v. New Jersey,

supra (211 US 78); however, neither the majority

opinion nor the dissenting opinions mention the prac-

tice in England or the colonies. The Court neld that

a right is protected by the Due Process Clause if it

is ““‘a fundamental right, essential to a fair trial.’ ”

Malloy v. Hogan, supra (378 US at 6), quoting Gideon

v. Wainwright, 372 US 335, 343-344, 883 S Ct 792, 9

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L Ed2d 799, 804-805, 93 ALR2d 733 (1963). Whether

such a right existed in England and had been adopted

by the colonies by 1791 can, at least at present, be con-

sidered only important to historians.

If the historical approach is to prevail and a de-

cisicn rendered by a judge on the assizes in the reign

of Edward III determines the fundamental rights of

Americans in 1969, other Finglish and colonial prac-

tices, some less acceptable than a unanimous verdict

of twelve, may rear up through the cobwebs and dust

and claim similar recognition.®

In England, in the colonies, and in many of the

states, a jury was required to be composed only of

white male property owners. Devlin, supra, at 17;

Lesser, supra, at 181-183; General Laws of Oregon

1843-1872, § 918, p 290. The United States Supreme

Court undoubtedly would not hold that the Fourteenth

Amendment requires the exclusion from juries of all

persons other than white male property owners. How-

ever, based upon pure logic, if a unanimous verdict of

twelve is required merely because that was the Eng-

lish practice adopted in the American colonies, it

would seem to follow that jurors are, for the same

reason, required io consist solely of property owners

who are white and male.

The dissent concludes that in addition to being his-

torically required, the right to be convicted only by a

unanimous jury is a fundamental right.

The most plausible argument in support of the

unanimity requirement is to the effect that, since one

- ean be convicted only upon being found guilty beyond

a reasonable doubt, a nonunanimous jury verdict can-

not result in conviction hecause. the disagreement with

® Proffatt states that a decision in the time of Edward III

held that a verdict of less than twelve was a nullity. Proffatt,

Jury Trial, 113 (1877).

a guilty verdict by one or two of the twelve jurors is

sufficient to establish that there is reasonable doubt

as to the guilt of the defendant. Proffatt held this

view. Proffatt, supra, at 117.

We respectfully decline to adopt this view. In our

opinion a failure of one or two jurors to agree with

the verdict of their fellow jurors is more likely to be

caused by a failure of the dissenters to correctly un-

derstand the evidence or the court’s instructions or

by some extraneous cause having no relation to the

quantum of proof. Proof beyond a reasonable doubt

is not like a physical or chemical property the presence

. of which can be objectively ascertained. Unless the

absence of proof is so conspicuous that a judge can

hold “as a matter of law” that proof beyond a reason-

able doubt has not been established, there is no test to

determine whether such a degree of proof has been

’ adduced. It does not appear that the nonconcurrence

of one or two jurors signals such a defect.

3. We interpret the decisions of the United States

Supreme Court to hold that due process requires the

use of those procedures which are so fundamental that

their absence impairs or discredits the fact-finding

process. Gideon v. Wainwright, supra (372 US 335),

is an example. We conciude that the absence of the

unanimity requirement does not impair or discredit

the fact-finding process.

The United States Supreme Court has specifically

held that the right to be convicted only by a unanimous

jury verdict is not “a fundamental right.” The Re-

public of Hawaii had a system of criminal procedure

which provided that indictment be by a judge, not a

grand jury, and that nine of twelve jurors could re-

turn a verdict. When Hawaii ceded to the United

States, the question of wnether such provisions were

| 46

contrary to the United States Constitution was pre-

sented. The Court held they were not unconstitutional:

“s * * We would even go farther, and say

hat most, if not ail, the privileges and immunities

ontained in the bill of rights of the Constitution

vere intended to apply from the moment. of annex-

tion; but we place our decision of this case upon

the ground that the two rights alleged to be vio-

lated in this case are not fundamental in their na-

ture, but concern merely a method of procedure

which sixty years of practice had shown to be

suited to the conditions of the island, and well eal-

culated to conserve the rights of their citizens to

their lives, their property and their well-being.”

Tawau v. Mankichi, 190 US 197, 217-218, 23 S Ct

87, 47 L Ed 1016 (1903).

Thirty-five years of practice have shown the Ore-

gon procedure to be suited to Oregon conditions. The

evidence, so far as we have been able to observe, is

that |the Oregon system has been as just as the system

in jurisdictions requiring a unanimous verdict. Ob-

servers favoring unanimous verdicts concede that the

lack pf a unanimous requirement has not broken down

justiee in Oregon. Kalven and Zeisel, Tie American

Jury, 48 Chi Bar Record 195, 201 (1967).

If, unanimity were a “fundamental principle” of

due process, “essential to a fair trial,” one would ex-

pect harmony of opinion concerning the desirability

of unanimity as a procedure, if not as a constitutional

requirement. There is no such concord.

Unanimity has been attacked in the land of its

birth, England, for over 100 years. The English con-

stitutional historian Hallam stated the most repeated

denunciation. He termed unanimity, “that preposter-

ous relic of barbarism.” Hallam, The Middle Ages

(Supp), notes p 262, quotes with approval in Lesser,

supra, at 187.

The Cammission on the Courts of Common Law,

appointed in 1830 as a result of the law reform move-

ment of Bentham and others, reported: “ ‘The inter-

ests of justice seem manifestly to require a change of

law upon this subject [unanimity ],’” quoted in Lesser,

supra, at 187, note 28.9 Reform took a little time;

however, the requirement of unanimity was finally

abolished by the Criminal Justice Act 1967, § 13.

Since the English are not supposed to treasure

trial by jury as do we Americans, the recent aboli-

tion of the unanimity requirement by the English Par-

liament may not have significance for this country.

However, criticism of unanimity as a desirable policy

has been as great in the United States. Oregon’s first

legal scholar, Judge Mathew Deady, wrote:

“But by far the greater portion of the unsatis- &

factory results of trial by jury is diiectly due to ae

the perversion and abuse of the institution, brought

about by improper legislation and practices con-

cerning the selection and formation of jnries, and

the conduct of a trial with them. The most seri-

ous of these are :—

“1. The rule requiring unanimity in the verdict 3

of a jury;

66% * * * *

“The rule requiring a verdict to be the unani-

mous opinion of the jury ought to be changed,’ so

that a majority may give a verdict.” Deady, Trial

by Jury, 17 Am L Rev 398, 400-401 (1883).

More recent and less provincial is the official draft

of the American Law Institute’s Code of Criminal a

Procedure, § 355, published in 1931: F

“In capital cases no verdict may be rendered

unless all the jurors concur in it. In other eases of

felony a verdict concurred in by five-sixths of the

jurors, and in cases of misdemeanor a verdict con-

ELT EO LEE ET PANE BY IE IEEE NTI, INT: PAN ROHAN EI i AR

IETS T

@It is not completely certain they were referring to criminal

trials.

eurred in by two-third of the jurors may be ren-

dered.”®

4. In addition to all the considerations before men-

tioned, we must remember that we are passing upon

a provision of the Constitution of the State of Ove-

gon. We consistently hold that we will “declare no

act of the legislature void unless invalidity be shown

beyond a reasonable doubt.” State v. Anthony, 179

Or 282, 301, 169 P2d 587, cert den 330 ‘us 826, 67 §

Ct 865, 91 L Ed 1276 (1946); State v. Collis, 243 Or

222, 251, 418 P2d 53 (1966). Certainly, at least as

much of a presumption of validity should be given ty

the State Constitution.

Because of the absence of any decision of the

United States Supreme Court directly to the contrary,

because the people of Oregon were acting within their

power to regulate the incidents of criminal procedure

when they adopted Art I, § 11, and because a unani-

mous verdict is not a “fundamental right, essential to

a fair trial,” we hold that the Oregon Constitution is

not in violation of the Fourteenth Amendment.

[The judgment was reversed on other grounds,

the discussion of which is omitted. ]

GOODWIN, J., concurring in part and dissenting

in part.

I dissent only from that part of the majority opin-

ion which refuses to apply the federal interpretation

of the Sixth Amendment to the State of Oregon.

Foi the first seventy-five years of its history, Ore-

gon, in company with all the states except Louisiana,

required a unanimous verdict in felony cases. Then,

® Apparently, few states adopted the Institute’s recommenda-

tion. Oregon, sometimes in the vanguard of legal reform, is an

exception. Mr. Justice White states that only Oregon and Louisi-

ana nov permit less than unanimous verdicts. Duncan v. Louisi-

ana, 391 US 145, 158, n 30, 88 S Ct 1444, 20 L Ed2d 491, rehr

den 392 US 947, 88 S Ct 2270, 20 L Ed2d 1412 (1968).

in 1934, the people of Oregon amended Article I, § 11,

of the state constitution. The principal reason stated

for the amendment was that its adoption would tend

to eliminate the evil of the hung jury and the conse-

ized opposition to the referendum, and it passed. As

noted by the majority, there was little reason to ques-

tion the federal constitutionality of the 1934 amend-

ment until Maxwell v. Dow, 176 US 581, 20 S Ct 448,

44 lL, Ed 597 (1900), was overruled by Duncan v.

Louisiana, 391 US 145, 88 S Ct 1444, 20 L Ed 2d 491

(1968). |

Duncan v. Lowisiana, supra, has now held that

trial by jury is fundamental to the American scheme

of justice and that the Due Process Clause of the

Fourteenth Amendment guarantees trial by jury to

eriminal defendants in state courts. While the court

in Duncan v. Lousiana stopped short of a specific

holding that a jury trial in a state court must he

conducted according to federal standards, a subhse-

quent per curiam opinion dealing in part with an Ore-

gon ease strongly suggests that state trials commenced

after the date of Duncan must conform to federal

standards, one of which requires a unanimous ver-

dict to convict. De Stefano v. Woods, 392 US 631, 88

S Ct 2093, 20 L Ed 2d 1308 (1968).

When a state’s own constitution is challenged as

repugnant to the federal constitution, the state court

should lay aside its presumptions favoring the con-

stitutionality of statutes generally, and decide the

federal supremacy question in light of the controlling

precedents of the United States Supreme Court. See,

® The possibility that there might be a corrupt juror is some-

times tendered as an additional reason for eliminating the re-

quirement of unanimity. See Kirkpatrick, Should Jury Verdicts

Be Unanimous in Criminal Cases?, 47 Or L Rev 417, 421 (1968),

for a well-reasoned statement of the case for unanimity.

« e.g. Rettman v. Mulkey, 387 US 369, 87 S Ct 1627,

18 L Ed 2d 830 (1967). Accordingly, I believe the

time has arrived for Oregon to recognize that the

right to a unanimous jury verdict in a criminal trial

is so fundamental to iiberty under the American

scheme of justice as to amount to a due-process right.

I believe that our state constitution is out of step

with the United States Constitution as the Sixth

Amendment has been interpreted by the United States

Supreme Court. ,

In contrast to the Oregon amendment allowing a

verdict by a jury which contains uneonvineed jurors,

the federal system has alwavs regarded the unanimous

verdict as an essential ingredient of the Sixth Amend-

ment’s guarantee of a jury trial. Thompson v. Utah,

170 US 348, 350-351, 18 S Ct 620, 628, 42 L Ed 1061,

1066-1067 (1898S); Maxwell v. Dow, 176 US at 586, 20

S Ct at 450-451, 44 L Id at 599; Patton v. United

States, 281 US 276, 288, 50 S Ct 258, 254, 74 LL Ed

854, 858, 70 ALR 263 (1930): Andres v. United States,

333 US 740, 748, 68 S Ct 880, 884, 92 I. Ed 1055, 1065

(1948).

The origin of the unanimity rule is not univers-

ally agreed upon. However, it is undisputed that for

more then five centuries Englishmen knew that they

eould not be convicted of crime except by the unani-

mous verdict of twelve peers.® 1 W. IHfoldsworth, His-

® Recent legislation in England provides for a_ ten-to-two

verdict in criminal cases. Criminal Justice Act of 1967, § 13.

According to H. Kalven & H. Zeisel, The American Jury: Netes

for an English Controversy, 48 Chi B Rec 195 (1967), Intro-

ductory Note, the legislation was the result of a discovery that

there had been jury bribery in a few widely publicized crim-

inal cases. This change was also suggested in this country in -

ALI Code of Criminal Procedure, § 355 (1931). However, with

regard to felony cases, it was rejected in all the American com-

mon-law jurisdictions except Oregon. See the equivocal com-

ments to Section 1.1(d) of the American Bar Association Stand-

ards Relating to Trial by Jury (Approved Draft 1968).

tory of the English Law 318 (3d ed rewritten 1922). .

Moreover, by the time of the American Revolution,

the protection of unanimity in criminal cases was one

of the Englishman’s most cherished rights. See 4

Blackstone, Commentaries *349-*350. And see W.

Forsyth, History of Trial by Jury.210-215 (new ed

Morgan 1876); M. Hale, History of the Common Law

293 (and note at 299) (Runnington ed 1779); J.

Thayer, Preliminary Treatise on Evidence at the Com-

mon Law (1898).

There is no reason to believe that the American

colonists who adopted our Bill of Rights abandoned

their English tradition with respect to trial by jury.

Indeed, the evidence strongly suggests that the Sixth

Amendment guarantee of a jury trial in all criminal

eases was intended to incorporate all the elemants

of a jury trial that were deemed protective of in-

dividual liberty in this country and in England when

the Constitution was adopted.

“* * * Those elements were—(i) that the

jury should consist of twelve men, neither more

nor less; (2) that the trial should be in the pres-

ence and .:nder the superintendence of a judge

having power to instruct them as to the law and

advise them in respect of the icts; and (3) that

the verdict should be unanimous.” Patton. v.

United States, 281 US at 288.

And see Andres v. United States, 333 US 740; Mazwell

v. Dow, 176 US 581; Thompson v. Utah, 170 US 343;

all supra. |

Several important functional advantages result

from the unanimity rule. If at least one juror dis-

agrees with the majority, his opinion and the reasons

for it must be heard and considered by the majority.

He cannot be ignored, because until the majority per-

suades him to accept their view no verdict can be

returned. This 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. Kalven & Zeisel,

The American Jury: Notes for an English Contro-

versy, 48 Chi B Rec 195, 201 (1967).

A guilty verdict in which only a majority of the

jury can concur strongly suggests that the jury con-

tains persons who are not convinced of the prisoner’s

guilt. Indeed, it may contain jurors who are firmly

~ eonvinced of ike person’s innocence. These unper.

suaded jurors may he merely incorrect; or they may

be less susceptible to passion and prejudice than the

majority, and therefore*correct. It was to this latter

point that Mr. Justice Story referred when he added

the following footnote to a discussion of the reason

for the institution of trial by jury:

“A trial by jury is generally understood to

mean * * * a trial by a jury of twelve men,

impartially selected, who must unanimously con-

cur in the guilt of the accused before a legal con-

viction can be had. Any law, therefore, dispens-

ing with any of these requisites, may be considered

unconstitutional.” 2 J. Story, Commentaries on the

Constitution of the United States $1779, note 2

(5th ed 1891).

Judge Story said that the “object of trial by jury

in criminal cases is, to guard against a spirit of op-

pression and tyranny on the part of rulers, and

against a spirit of violence and vindictiveness on the

part of the people. Indeed, it is often more important

to guard against the latter than the former * * *.”

Id. at $1780. Thus, because it requires the concur-

rence of the unimpassioned and the unprejudiced, the

protection of unanimity increases the likelihood that

the guilt of the accused will truly be established be-

yond a reasonable doubt.

The distinction between Jiberty and property has

made some commentators, such as W. Forsyth, oppose

the unanimity rule in civil cases, but wholeheartedly

endorse it in criminal cases. W. Forsyth, supra at

210.

It may be argued that the state no longer prose-

eutes religious and political heretics, or at least that

political and religious dissent is protected by the First

Amendment, and that the citizen no longer needs the

additional guarantee of his liberty an is provided

by the unanimous jury.

Similarly, it may be argued that ‘the criminal de-

fendant in modern times has so many other constitu-

tional protections that, regardless of the nature of

the crime of which he is charged, he need have no

fear of an unjust verdict by a majority of twelve of

his fellow citizens so long as the jury is impartial.

It has been argued, as noted, that the requirement

of unanimity allows irrational, perverse, or dishonest

jurors to “hang juries,” thereby obstructing justice

and putting the state to the unnecessary expense of

multiple trials. This argument, however, is unsup-

ported by objective data, even though 48 states and

the federal judicial system refused to follow Oregon’s

lead and have adhered to the unanimous-verdict rule.

However, assuming some validity in one or more

of the arguments against unanimity, the fact remains

that if a citizen can be convicted by only a majority

(or, in Oregon, by a statutory fraczion) of the jury,

he has less protection than he had at common law.

If Oregon can constitutionally provide for a ten-to-

two verdict, it can, with equal constitutionality, pro-

vide for a verdict by a simple majority.

A local law making it easier for the state to convict

is not neeessarily bad. But a local law which de-

prives a person of a right that is fundamental to due

“2

prccess of law cannot stand. Since the only kind of

verdict recognized by courts operating under the Fed-

eral Constitution is the uaanimous verdict, I am forced

to conclude that unanimity has been held to be funda-

mental to federal due process. If there is no federal

constitutional requirement of unanimity, there is, of

course, no federal standard at all, except “fair pro-

cedure,” for measuring the compliance of the various

states with the demands of due process. I find it

difficult to believe that the United States Supreme

Court wili permit fifty states to decide for themselves

what constitutes a Sixth Amendment trial by jury.

Neither this court nor the United States Supreme

Court has ever departed from common-law anteced-

ents in order to take away a constitutional safeguard

of personal liberty. It is true that we no longer in-

sist that a jury be made up of male white property

owners. Butsnone of those common-law qualifications

for jury service evolved to protect individual liberty.

The unanimity rule is related directly to liberty.

In 1967, this court summarily denied habeas corpus

relief to Frank Anthony Carcerano, who had belatedly

challenged his 1962 conviction of armed robbery on

the ground that the jury had been instructed on the:

ten-to-two verdict, in violation of the Federal Con-

stitution. Before the United States Supreme Court

on a petition for a writ of certiorari to the Supreme

Court of Oregon, Carcerano subsequently advanced

the argument that the Oregon jury trial had denied

him due process of law under the United States Con-

stitution. The United States Supreme Court granted

certiorari, but eventually held that it need not decide

the constitutional question in Carcerano’s case because

Careerano had been tried before the publication of

the decision in Duncan v. Louisiana, supra. De Stefano

v. Woods, supra. In view of the specific holding that

Duncan v. Lousiana is not retroactive, and in view

of strong suggestions in De Stefar.o v. Woods and more

recently in DeBacker v. Brainard, 396 US 28, 90 S Ct

163, 24 L Ed 2d 148 (1969), that Duncan v. Louisiana

would apply to future cases like the one at bar, I

would prefer a decision today granting new trials in

those relatively few cases in which guilty verdicts

were rendered by divided jures after May 20, 1968,

the date of the decision in Duncan v. Louisiana, supra.

The majority is inviting a wholesale jail delivery sev-

eral years from now if the United States Supreme

Court adheres to the policy considerations recently

applied in Desist v. United States, 394 US 244, 249, 89S

Ct 1030, 22 L Id 2d 248 (1969), and holds that Oregon

has been bound by Duncan v. Louisiana since the date

it was decided.

I dissent, therefore, from the part of the majority

opinion upholding the ten-to-two verdict.

McAuuister and O’ConnELL, JJ.,. join in this con-

curring and dissenting opinion.

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