Amicus Curiae Brief — Apodaca v. Oregon

ne ALOR IEE ae

\& wont yy el i 2 |

IN THE

Supreme Court of the United Plates +

OctToBeR TERM, 1971 | Supreme Court U.S. §

Frito: ¢

No. 09-9046 DEC 16 197)

—— f

—& ROBERT SEAVER, Cich

Rosertr Apovaca, et al., . ,

Petitioners, ;

—_vV.—-

STATE OF OREGON,

Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF OREGON

BRIEF FOR AMERICAN CIVIL LIBERTIES UNION,

AMICUS CURIAE

NORMAN DoRSEN

Eric M. LIEBERMAN

New York University

School of Law

40 Washington Square South

New York, N. Y. 10012

Soa PRI

MELVIN L. WULF

American Civil Liberties Union

156 Fifth Avenue

New York, N. Y. 10010

-Paut R. MEYER ;

800 Oregon National Building E

Portland, Oregon 97205

Attorneys for Amicus Curiae

|

—_— - SL BNR Se SL OA

x

2

H

*

sf

4

b

INDEX

PAGE

Interest Of the AMICUS oooeeeeccececeecececeesceceecessesseseesesseseeseees 1

Question Presented oo. e ce ceeetceeceseeeeeeceescseseescescesseceneeee 2

Statement Of the Case oocccceccececceccececcesceceeeeeceeeeseeeeeee 2

PT NCU oa careecetenn cece ean auhn ctnnnstysypevis eater banaecseveensseaseavesvesesieds 2

I. The Sixth Amendment right to trial by jury

guarantees unanimity in jury verdicts becaiise

unanimity is essential to the historical fune-

tions Of the JULY 2. ececeeceeeeceeeeeceeeeseseseeee

II.

A,

aD.

Unanimity Assures Full and Complete

Jury Deliberation 22.0... eeeeeeececeeeeeeeeee

Unanimity Gives Meaning to the Require-

ment That Juries Reflect a Broad Cross-

Section of the Community .00.0.0000000000000000...

The Requirement of Unanimity Is Not Out-

weighed by Any Legitimate States Inter-

essrescessneceopcrsaceemsseriumrersesnamerseanssensnassentteecers

Unanimity in jury verdicts is required to ef-

fectuate the reasonable doubt standard of

guilt, which is embodied in the due process

clauses of the Fifth and Fourteenth Amend-

MONEE _ .........2scecceescsencccccceocceccennsseeccenecencaceccsececeeseccoece

A. Unanimity Insures That Each Individual

Juror Will Appl? the Reasonable Doubt

Standard 22...) ececececcecceecesececeeeeessoeeeseneeese.

10

LEE NEE I TE NL Ry EY Rp RCT

|

7

PAGE

B. Unanimity Precludes a Conviction Unless

the Jury as a Whole Intertains No Rea-

sonable Doubt of the Guilt of the Accused 11

C. Jury Unanimity Is Essential to Public

Confidence in the Judicial System .............. 13

CONCLUSION oeeecceccceeeeeeeeeeeeeeeeeee opnsewasiedusuceawssusenedeuuniceseeieadens 15

TABLE OF AUTHORITIES

Cases:

Andres v. United States, 333 U.S. 740 (1948) 0000... 12

Billeci v. United States, 184 F.2d 394 (D.C. Cir. 1950) = 12

Dunean vy. Louisiana, 391 U.S. 145 (1968) ............ 1, 3, 4, 5,9

Green v. United States, 356 U.S. 165 (1958) -.0. ee... 9

Hibdon v. United States, 204 F.2d 834 (6th Cir. 1953) 12

In re Winship, 397 U.S. 358 (1970) ...00.02.2....---- 1, 3, 10, 18

Marshall v. United States, 360 U.S. 310 (1959) ............ 6

Patton v. United States, 281 U.S. 276 (1930) ................ 12

Norris v. Alabama, 294 U.S. 587 (1935) —.022.02.22.....-- 7

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

cca cscs teecnee aes eevee reeves onan 2, ll

Thompson v. Utah, 170 U.S. 343 (1898) -..000.22.....------- 12

Turner v. State of Louisiana, 379 U.S. 466 (1965) ........ 6

PAGE

United States v. Fioravanti, 412 F.2d 407 (3d Cir:

Cy aera seca eon hepa deca apiectiece eager eeiceeeeenes 12

Whitus v. Georgia, 385 U.S. 545 (1967) ooo 7

Williams v. Florida, 399 U.S. 78 (1970) ooo. 4,5,13

Constitutional Provisions:

United States Constitution

Fifth Amendment 222... eceeeeeceeceecceceeeeceeeeeeeeee 7,0, 10

Sixth Amendment _2.....0.20.. eee cceececeeeceeeeeececeeeceeeees 2, 3,4

Fourteenth Amendment 0..0..2..202...eccceceeeceeceeeeeeeee 2, 3, 10

Oregon Constitution

Article 1, Section V1 ooeceecceccccccceeccecsseeccecceceeseeeeees 2

Other Authorities:

Anonymous Case, 41 Lib. Assisarum UL cocccccccccccecceceoceoees 12

4 Blackstone, Commentaries on the Laws of England

(1765) 349 (Cooley ed. 1899) woececceceecccececcesseceseuceeeee 12

1 Chitty, 4 Practical Treatise on the Cr iminal Law

(1816) at O85 occ cece cece eceeeeeeseneeeesescesesseceseseeeeeees 12

Comment, “Should Jury Verdicts. Be Unanimous in

Criminal Cases,” 47 Ore. L. Rev. 417 (1968) ............ 7,8

Comment, “Waiver of Jury Unanimity—Some Doubts

About moneonable Doubt,” 21 U. Chi. L. Rev. 488

(1954) nen ececelecececececesescecceseseseeeaesereseseseessseeasnensees cosseees 12

Forsyth, History of Trial by Jury 204 (2d Ed. Morgan :

5) cc 6 -

Hale, The History of the Comion Law of England i

(1713) et QO. nee eeecaeeceeeecccneeccnecceneecsneeseeeessnneesneeeseueeeesest 12 _

Kalven & Zeisel, The American Jury (1966) 210 ........ 8,9 f

= gk 9 dina

SF Et

apes,

F PIELER LOL EERE LGD NE LE IRE LOCRLT

iv

PAGE

Kalven & Zeisel, “The American Jury: Notes for an

English Controversy,” 48 Chi. Bar Ree. 195 (1967) .. 9,14

McCormick, Evidence $321, p. 681 (1954) 2 .. 12

Note, “The Jury: A Reflection of the Prejudices of the

Community,” 20 Hastings Law Journal 1417 (1969) 7

Stephen, Ad General View of the Criminal Law of

England 221 (1863) ..u..2..2...-.-eeeececeeceeceeeeeceeeeeneseeeeeeeeee 6

3 Story, Commentaries on the Constitution of the

United States (1888) at 652 ooo... eee eee 6. 12

Zeisel, “The Diminution of the Federal Jury,” 38

U. Chi. L. Rev. T10 (1971) .2ncenceceeeeeeee cence cece eceeeeee eee 8

IN THE

Supreme Court of the United States

OcroserR TERM, 1971

No. 69-5046

>

Rospert Apopaca, ef al.,

Petitioners,

—_V.—

STATE OF OREGON,

Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF OREGON

—

BRIEF FOR AMERICAN CIVIL LIBERTIES UNION,

AMICUS CURIAE

Interest of the Amicus*

The American Civil Liberties Union, as Amicus Curiae,

is deeply interested in the question presented by this case.

How that question is answered will profoundly affect the

content of two rights fundamental to all American citizens i

charged with committing major criminal acts: the right to

jury trial and the right to a presumption of innocence

until guilt is proven beyond a reasonable doubt. Duncan

v. Louisiana, 391 U.S. 145 (1968) ; In re Winship, 397 U.S.

398 (1970), Because unanimity in jury verdicts is not only

an essential element of both rights, but also provides the

*This brief is filed with consent of the parties. The letters of

consent have been filed with the Clerk of the Court.

< —_—<—<——— e i ~-— —

2

erucial link by which the former guarantees the latter,

Amicus urges that the judgment of the Court of Appeals

of Oregon be reversed.

Question Presented

Do the Sixth Amendment right to jury trial and the due

process clauses of the Fifth and lourteenth Amendments

guarantee unanimity in jury verdicts?

Statement of the Case

The history of the case in No. 69-5046 is set forth in

detail on pages 4-5 of the Brief for Petitioners. Petitioners

were convicted of various felonies by the non-unanimous

votes of 12-man juries, as auttiorized by the provisions of

Article -1, Section 11 of the Oregon Constitution. On ap-

peal, the Court of Appeals of Oregon rejected petitioners’

constitutional claims, relying upon the opinion of the Su-

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

853, 463 P. 2d 570 (1969). Review was denied by the Oregon

Supreme Court.

Argument

The requirement of unanimity assures that the jury will

earry out the historical functions to which it has been en-

trusted. It elicits the maximum amount of deliberation,

and requires the full jury to consider and discuss whatever

special insights each member may be able to bring to bear

on the case. Without the unanimity requirement, informed

discussion of the factual issues of a case might be cut short

prematurely, or never reached, despite svbstantial disagree-

ments over the nature or degree of guilt of the accused.

3

Moreover, the safeguards that community participa‘‘on in

juries provide against verdicts swayed by public sentiment

or prejudice against unpopular or minority groups would

be dangerously undercut by non-unanimous verdicts.

The unanimity requirement also is inextricably inter-

y woven with the Constitutional standard of proof beyord

a reasonable doubt. It is quite obvious that the prosecu-

tor’s burden of persuasion is lightened appreciabiy when

less than complete agreement of the jurors is required for

conviction. In a sense, an non-unanimous verdict is a con-

tradiction in terms with the reasonable doubt standard,

which, however difficult to define objectively, has been re-

lated historically to unanimity. Unaninfity enhances that

sense of shared community responsibility for the vital deci-

sions entrusted to a jury that are so essential to the mainte-

nance of the moral force of the criminal law, which lies be-

aind the reasonable doubt standard. Cf. In re Winship,

supra. Guilty verdicts returned over the dissent of a jury

minority would undermine tiie conndence of individual citi-

zens that the government will not successfully prosecute

and imprison persons without proof of the utmost certainty.

For the above stated reasons, Amicus believes that the

unanimity requirement is a procedure “necessary to an

Anglo-American regime of ordered liberty,” Duncan v.

Louisiana, supra, 391 U.S. at 149, and therefore qualifies

for protection under the Sixth Amendment and the Due

Process Clauses of the Fifth anc Fourteenth Amendments.

I.

The Sixth Amendment right to trial by jury guarantees

unanimity in jury verdicts because unanimity is essential

to the historical functions of the jury.

In Duncan vy. Louisiana, supra, the Court held that in

major criminal cases trial by jury “is fundamental to the

American scheme of justice.” The Court based its decision

upon the historical and functional role that jury trial has

played in preventing oppression by the state:

... the jury trial provisions in the Federal and State

Constitutions reflect a fundamental decision about the

exercise of official power—a reluctance to entrust

plenary pow: -s over the life and liberty of the citizen

to one judge or to a group of judges. 391 U.S. at 156.

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

considered the question whether constitutional juries must

consist of twelve members. After recognizing that the

number of jurors historically had been fixed, with few ex-

ceptions, at twelve, the Court found that the history of the

Constitution was uncertain as to whether the requirement

of twelve had been incorporated by the Sixth Amendment.

The Court then applied a functional test and held that

criminal juries were not constitutionally limited to twelve

members: .

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

tion that the particular feature performs and its re-

lation to the purposes of the jury trial. Measured by

this standard, the 12 man requirement cannot be re-

4)

garded as an indispensable component of the Sixth

Amendment. 399 U.S. 78, 99-100.

It is precisely on this functional basis that the unanimity

requirenent must be retained. Without unanimity, the role

of the jury as a deliberative body representative of a cross-

section of the community and protective of the rights of

unpopular defendants against the prejudices of majority

public opinion would be seriously undermined. This posi-

tion was implicitly recognized in the Williams case, supra,

when the Court distinguished its holding regarding 12 man

juries from the issue presented in the instant case:

... We find little reason to think that these goals are

in any meaningful sense less likely to be achieved when

the jury numbers six, than when it numbers 12—par-

ticularly if the requirement of unanimity is retained.

399 U.S. at 100. (Emphasis supplied.)

The Court added in a footnote that unanimity, unlike

the 12-man requirement, “may well serve an important

role in the jury function.” Supra at 100, fn. 46. We believe

that the suggestion of this Court in the Wiiliams case

should be adopted as the holding in the instant case.

A. Unanimity Assures Full and Complete Jury Deliberation.

The primary function of a jury is to interpose the rea-

soned decision of ordinary citizens between the power of

the state and the individual, thereby preventing the use

of arbitrary power and coercion by the authorities. Dun-

can v. Louisiana, supra. The major risk that is run by

entrusting such decisions to a jury of layman is that in-

6

dividual jurors, as ‘intrained fact-finders, may be more

likely to err than a trained judge. This problem js

accentuated when tke trial deals with issues or indi.

viduals about whom there is considerable public contro.

versy.’ It is to minimize these risks that juries have beep

structured to ensure maximum deliberation and considera-

tion of all the intricate issues developed at trial.

The imovortance of this comparison and discussion is

particularly great in the case of untrained judges ....,

(T]he verdict ultimately represents general impres-

sions founded on conclusions of which many ure for-

gotten in the course of a trial; and though the value

of such general impressions is often underrated, there

ean be no doubt that their importance depends, if not

principally, at least to a great extent, on their being

checked by and compared and found to correspond

with, the general impressions of others. J. F. Stephen,

A General View of the Criminal Law of England 221

(1863).

Unanimity is the primary device by which such careful

deliberation is maximized. It ensures that the opinion of

each member of the jury is given full and equal weight.

and allows each juror to present interpretations of factual

situations that might not otherwise be considered by his

co-jurors. It “furnishes a safeguard against precipitancy

and insures a full and adequate discussion of every ques-

tion which can fairly admit of doubt.” W. Forsyth, His-

tory of Trial by Jury 204 (2d Ed. Morgan 1875).

1See Marshall v. United States, 360 U.S. 310 (1959) ; Turner v.

State of Louisiana, 379 U.S. 466 (1965); 3 Story, Commentaries

on the Constitution at 653.

7

Without unanimity, deliberation might be cut short

prematurely, or be dispensed with entirely, without due

consideration of the doabts and insights of a minority of

the jury. The dissenting jurors may be just those who can

lend a special insight into the facts of the case, or those

whose strength of character enables them to see the issues

objectively despite the pressures of popular opinion. See

Comment, “Should Jury Verdicts Be Unanimous in Crimi-

nal Cases,” 47 Ore. L. Rev. 417, 424 (1968). To cut short

or to eliminate their opportunity to reason with their

associates would ve to undermine the traditional protective

role of the jury.

B. Unanimity Gives Meaning to the Requirement That Juries

Reflect a Broa ' Cross-Section of the Community.

Related to the netion of the jury to serve as a buffer

between the accused and the state is the requirement that

juries be drawn from a pool composed of a representative

cross-section of the community. Norris v. Alabama, 294

US. 587 (1935); Whitus v. Georgia, 385 U.S. 545 (1967).

This insures that the special perspectives that can be im-

parted to the facts and testimony of a trial by an individual

from a particular ethnic, racial, or social background will

not be omitted arbitrarily from the jury’s deliberations.’

It also helps assure that a defendant who is a member

of en unpopular or minority group is not victimized by

the possible prejudices of a jury.

*See Note, “The Jury: A Reflection of the Prejudices of the

Community,” 20 Hastings Law Journal 1417, 1419 (1969).

* A respected University of Chicago Law School study found that

white jurors in criminal trials tend to be significantly more sympa-

PAY BERENSTAIN HH UNA YENI TOT CNN Pe Ee

8

Without the unanimity requirement, both of these safe.

guards would be undercut. It would be easier—perhaps

commonplace—for a jury to ignore the viewpoints of

minority group members.‘ Worse, a jury could convict

on the basis of its prejudices in the face of exculpating

evidence and over the dissent of jurors representative of

the group against whom the prejudice is directed. In such

a case, the community representation element of the right

to jury trial would become u hollow guarantee.

C. The Requirement of Unanimity Is Not Outweighed by Any

Legitimate States Interests.

The reasons usually advanced for abandoning unanimous

jury verdicts are that it is necessary to avoid obstruction

by obstinate jurors and that it relieves the state of the

economic burden of retrying cases that resulted in hung

juries. See, Comment, “Should Jury Verdicts be Unanimous

in Criminal Cases,” 47 Ore. L. Rev. 417 (1968). But the

University of Chicago jury studies have shown that it

is a rare case where a juror will prevent a verdict in the

face of clear evidence:

thetie to ~ “ite than to black defendants. This is reflected in higher

rates of conviction and stiffer sentences for black defendants, espe-

cially where there are no blacks on the jury. Kalven & Zeisel, The

American Jury (1966) 210-211.

* Professor Zeisel has shown that “a majority verdict requirement

is far more effective in nullifying the potency of minority view-

points than is the outright reduction of a jury to a size equivalent

to the majority that is allowed to agree on a verdict.” Zeisel, “The

Diminution of the Federal Jury,” 38 U. Chi. L. Rev. 710, 722

(1971). For the statistical analysis underlying these conclusions,

see id., pp. 722-23.

9

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

locked juries is that it is a response to genuine diffi-

culties in the case.°

Moreover, the frequency of hung juries is not that sub-

stantial. Only 5.6% of criminal trials result in hung juries

in unanimous-verdict jurisdiciions, as opposed to 3.1%

in jurisdictions where unanimity is not required.’ This

represents a minor saviigs indeed, and any trifling

economies that may be gained (such as shortened periods

of jury deliberation or easier convictions) would be

achieved by undermining those very functions of the jury

that were so essential to this Court’s decision in Duncan

y. Louisiana, supra.

As Justice Black said in what is now recognized to be a

classic statement:

Triflng economies ... . have not generally been

thought sufficient reason for abandoning our great

constitutional safeguards aimed at protecting freedom

and other basic human rights of incaleulable value.

Cheap, easy convictions were not the primary concern

of those who adopted the Constitution and the Bill of

Rights. Every procedural safeguard they established

purposely made it more difficult for the government to

convict those it accused of crimes. On their scale of

value justice occupied at least as high a position as

economy. Green v. United States, 356 U.S. 165, 216

(1958) (dissenting opinion).

*Kalven & Zeisel, “The American Jury: Notes for an English

Controversy,” 48 Chi. Bar Rec. 195, 201 (1967).

“ Id. at 200. Kalven & Zeisel, The American Jury, supra at 453,

1,

-

cf

44

AQUA

hte

TE ATE AIT

LOE SEAS ER TS

~~

RETRAIN A TRIE TM A TED YE ID PNY SOND TMA YPN REP ENA NT INEY a Ty SA SOI ha Pe YIN A RT PN MME

Il.

Unanimity in jury verdicts is required to effectuate

the reasonable doubt standard of guilt, which is em.

bodied in the due process clauses of the Fifth and Four.

teenth Amendments.

The Court has held that due process requires that

“society . . . should not condemn a man for commission

of a crime when there is reasonable doubt about his guilt.”

In re Winship, supra, 397 U.S. at 363-64. The unanimity

requirement is an essential ingredient of this right, and

assures that the standard will be correctly applied.

A. Unanimity Insures That Each Individual Juror Will Apply

the Reasonable Doubt Standard.

Jury deliberation enables the members to gain exposure

to the insights of their co-jurors. Thus, each juror may be

confronted with an analysis of the factual issues that he

would not have entertained on his own.

This jury dynamic gives meaning to the reasonable doubt

standard; it provides the juror, an untrained layman,

with a broad perspective so that in his deliberations he may

more nearly approximate the law’s standard of a “reason-

able man”. Without such exposure, the juror would be

likely to consider only his doubts, rather than all reason-

able doubts, in deciding the issue of guilt.

Unanimity serves as the vital mechanism by which the

reasonable doubt standard is applied by each individual

juror. Without unanimity, the full and meaningful de-

liberation that is essential to the reasonable doubt stand-

ard would be cut short or eliminated. (Compare supra,

11

|. pp. 5-7.) Justice Goodwin of the Supreme Court of Oregon

recognized this process in dissenting from that Court’s

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

570 (1969), which upheld the Oregon statute at issue here:

[The unanimity rule] undoubtedly decreases the like-

lihood of precipitancy and increases the opportunity

for a full and adequate discussion of every issue about

which there is a reasonable doubt ... Thus, because it

requires the concurrence of the unimpassioned and the

unprejudiced, unanimity“increases the likelihood that

the guilt of the accused will truly be established be-

vond a reasonable doubt. 463 P.2d at 584.

B. Unanimity Precludes a Conviction Unless the Jury as a

Whole Entertains No Reasonable Doubt of the Guilt of

the Accused.

Kach juror in a criminal trial is the equal of his co-

jurors and is as likely as they to embody the standard

of the “reasonable man.” Thus, as long as one juror votes

for acquittal, there is a reasonable doubt of guilt; that one

dissenting vote can no more be dismissed as unreasonable

than can the eleven votes of the majority.

... The unanimity of a verdict in a criminal case

is inextricably interwoven with the required measure

of proof. To sustain the validity of a verdict by less

than all the jurors is to destroy this test of proof for

there cannot be a verdict supported by proof beyond

a reasonable doubt if/one or more jurors remain rea-

sonably in doubt fe guilt. It would be a contradic-

tion in terms. .

SIE BPS ELLE APS PRI Ae Oo

12

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

Accord: United States v. Fioravanti, 412 F.2d 407, 418-419

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

(D.C. Cir. 1950).

It has been claimed that the Hibdon case confused the

application of the reasonable doubt standard, and that

that standard properly is applicable only to the individual

decisions of each juror and not to the decision-making of

the jury as a unified body. Comment, “Waiver of Jury

Unanimity—Some Doubts About Reasonable Doubt,” 21

U. Chi. L. Rev. 488 (1954). But this distinction contradicts

historical experience. The reasonable doubt standard has

been applied in the context of recognition of the right to

unanimous verdicts in jury trials.* This is not coincidence;

unanimity has been a tacit assumption underlying the use

of the reasonable doubt standard in jury trials.

Moreover, the criticism of the Hibdon case does not hold

up analytically. The reasonable doubt standard is closely

related to the prosecution’s burden of persuasion in criminal

trials; it “provides concrete substance for the presumption

™The “demand for a higher degree of persuasion in criminal

cases was recurrently expressed from ancient times, [although] its

crystallization into the formula ‘beyond a reasonable doubt’ seems

to have occurred as late as 1798.” C. MeCormick, Evidence §321,

pp. 681-682 (1954).

The unanimity rule dates back to at least the latter third of the

fourteenth century—Anonymous Case, 41 Lib. Assisarwm 11—and

was recognized by all the authors of the major common law trea-

tises, 4 W. Blackstone, Commentaries on the Laws of England

(1765) 349-350 (Cooley ed. 1899); Matthew Hale, The History of

ihe Common Law of England (1713) at 261 and 263; 1 J. Chitty,

A Practical Treatise on the Criminal Law (1816) at 635-36; 3 J.

Story, Commentaries on the Constitution of the United States

(1833) at 652, and by the decisions of this Court. See Andres V.

United States, 333 U.S. 740 (1948); Thompson v. Utah, 170 US.

343 (1898) (dictum); Patton v. United States, 281 U.S. 276, 288

(1930) (dictum).

13

of innocence...” In re Winship, supra at 363. It is “bot-

tomed on a fundamental value determination of our society

that it is far worse to convict an innocent man than to let

a guilty man go free.” In re Winship, supra at 372 (con-

curring opinion of Justice Harlan). Particularly in view

of this Court’s decision in Williams v. Florida, supra, that

12-man juries are not constitutionally required, it is essen-

tial that unanimity be maintained to protect against

erosion of that principle. To do away with unanimity ob-

viously would lessen the burden of the prosecution. As

Justice Harlan noted in Williams, “Can it be doubted that

a unanimous jury of 12 provides a greater safeguard thun

a majority vote of six?” 399 U.S. at 126.

C. Jury Unanimity Is Essential to Public Confidence

in the Judicial System.

The utility and legitimacy of ary legal system is directly

related to the degree of public confidence in the way in

which that system works. If citizens believe that the law

is merely an extension of the sovereign power and can be

used to imprison people at the arbitrary whim of the state,

then they will be unwilling to entrust disputes between

themselves and the government to settiement by the courts.

Even if citizens do submit to the judicial power, such be-

liefs would embitter the political climate of the nation.

Considerations such as these partly lay behind this

Court’s decision in In re Winship:

Moreover, use of the reasonable-doubt standard is in-

dispensible to command the respect and confidence of

the community in applications of the criminal law. It is

critical that the moral force of the criminal law not be

14

diluted by a standard of proof that leaves people in

doubt. whether innocent men are being condemned. It

is also important in our free society that every indi.

vidual going about his affairs have confidence that his

government cannot adjudge him guilty of a criminal

offense without convincing a proper fact finder of his

guilt with utmost certainty. 397 U.S. at 364.

Unanimity is probably the most important element of

the reasonable doubt standard in sustaining the legitimacy

of the criminal law in the eyes of the public. A layman

may be unclear as to the differences between proof beyond

a reasonable doubt and proof by a preponderance of the

evidence, but he can understand that one cannot be con-

victed and incarcerated for a crime without the unanimous

concurrence of twelve of his peers. Unanimous verdicts

lend an air of moral certainty to factual decisions. Were

people to be condemned over the dissent of jurors, it would

raise grave doubts that the decision to convict was the

right one.

Thus, it is particularly disturbing that split verdicts are

rendered in at least 25% of the criminal cases in Oregon.

Kalven & Zeisel, “The American Jury: Notes for an Eng-

lish Controversy,” 48 Chi. Par Rec. 195, 201 (1967). Public

disagreement over the decisions of criminal juries in such

a high ratio of cases is bound to have an adverse effect on

public confidence that justice is being done. Moreover, as

the statistics of the Chicago jury study show,’ the over-

whelming majority of the split verdict in Oregon could

ultimately be resolved by unanimous verdict.

8 See cofnmentary accompanying fn. 6, p. 9, supra.

15

CONCLUSIO \

The requirement of unanimity is an essential element

of the constitutional rights to a jury trial and to the

reasonable doubt standard of guilt viata trials. It

has been historically recognized for centuries at common

law. There are no important state mane to justify its

abandonment.

For these reasons, Amicus) vespestfults\ urges that the

decision of the Court of Appeals of Oregon be reversed.

Respectfully submitted,

NorMAn DorsEN

Eric M. LizperMan \

New York University

School of Law

40 Washington Square South

New York, N. Y. 10012

Mexvin L. WuLF \

American Civil Liberties Union

156 Fifth Avenue \

New York, N. Y. 10010\

Pau. R. Mryer \

800 Oregon National Building

Portland, Oregon 97205

\

Attorneys for Amicus Curiae

December, 1971