Opinion — Apodaca v. Oregon

(Slip Opinion)

NOTE: Where it is deemed desirable, a syllabus (headnote) will

be released, as is being done in connection with this case, at the time

the opinion is issued. The syllabus constitutes no part of the opinion

of the Court but has been prepared by the Reporter of Decisions for

the convenience of the reader. See United States y. Detroit Lumber

Co., 200 U.S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

APODACA et AL. v. OREGON

CERTIORARI TO THE COURT Of APPEALS OF OREGON

No. 69-5046. Argued March 1, 1971—Reargued January 10, 1972—

Decided May 22, 1972

Petitioners, who were fo:nd guilty of committing felonies, by less-

than-unanimous jury verdicts, which are permitted under Oregon

law in noncapi‘al cases, claim that their convictions, upheld on

appeal, contravene their right to trial by jury under the Sixth and

Fourteenth Amendments. Held: The judgment is affirmed. Pp.

6-—.

89 Ore. 939, 462 P. 2d 691, affirmed.

Mr. Justice Wuire, joined by Tue Cuier Justice, Mr. Jus-

TICE BLACKMUN, and Mr. Justice REHNQUIST, concluded that:

1. The Sixth Amendment guarantee of a jury trial, made appli-

cable to the States by the Fourteenth (Duncan v. Louisiana, 391

U. S. 145), does not require that the jury’s vote be unanimous.

Pp. 6-8.

(a) The Amendment’s essential purpose of “interpos[ing] be-

tween the accused and his accuser .. . the commonsense judgment

of a group of laymen” representative of a cross section of the

community, Williams v. Florida, 399 U.S. 78, 100, is served despite

the absence of a unanimity requirement. Pp. 6-7.

(b) Petitioners’ argument that the Sixth Amendment requires

jury unanimity in order to effectuate the reasonable-doubt stand-

ard otherwise mandated by due process requirements is without

merit since that Amendment does not require proof beyond a rea-

sonable doubt at all. Pp. 7-8,

2. Jury unanimity is not mandated by the Fourteenth Amend-

Tuvnt requirements that racial minorities not’ be systematically

excluded from the jury-selection process; even when racial minority

members are on the jury, it does not follow that their views will

not be just as rationally considered by the other jury members

as would be the case under a unanimity rule. Pp. 8-9.

APODACA v. OREGON

Syllabus

Mr. Justice Powe. concluded that:

1. Although on the basis of history and precedent the Sixth

Amendment mandates unanimity in a federal jury trial, the Due

Process Clause of the Fourteenth Amendment, while requiring

States to provide jury trials for serious crimes, does not incor-

porate all the elements of a jury trial within the meaning of the

Sixth Amendment and does tot require jury unanimity. Oregon’s

“ten of twelve” rule is not violative of due process. Pp. 4-13.

2. Nor is the Oregon provision inconsistent with the due process

requirement that a jury be drawn from a representative cross sec-

tion of the community as the jury majority remains under the

duty to consider the minority viewpoint in the course of delib-

eration, and the usual safeguards exist to minimize the possibility

of jury irresponsibility. Pp. 13-16.

White, J., announced the Court’s judgment and delivered an

opinion in which Burcer, C. J., and BLackMUN and REHNQUIST,

JJ., joined. Buackmun, J., filed a concurring opinion. See No.

§9-5035, Johnson y.. Louisiana. Powe .t, J., filed an opinion con-

curring in the judgment. See ibid. Dovatas, J., filed a dissenting

opinion, in which BRENNAN and MarsHALL, JJ., joined. see ibid.

BRENNAN, J., filed a dissenting opinion, in which Marsnatu, J.,

joined. See ibid. Srewart, J., filed a dissenting opinion, in which

BRENNAN and MarsHa.., JJ., joined. MarsHALu, J., filed a dis-

senting opinion, in which BRENNAN, J., joined. See ibid.

“‘

NOTICE : This opinion is subject to formal revision before publication

in the preliminary print of the Unitei fitates Reports. Readers are re-

uested to te the Reporter of Decisions, Supreme Court of the

nited States, Washington, D.C. 20545, of any yl sag oo ne or other

formal errors, in order that corrections may be made

liminary print goes to press.

SUPREME COURT OF THE UNITED STATES

No. 69-5046

fore the pre-

Robert Apedaca, Harry Morgan)

Cooper, Jr., and James Arnold |On Writ of Certiorari

Madden, Petitioners, ) to the Court of Ap-

v. peals of Oregon.

Oregon.

[May 22, 1972]

Mr. Justice WHITE announced the judgment of the

Court and an opinion in which THE CHIEF JUSTICE, MR.

Justice BLACKMUN, and Mr. Justice REHNQUIST joined.

Robert Apodaca, Henry Morgan Cooper, Jr., and

James Arnold Madden were convicted respectively of

assault with a deadly weapon, burgiary in a dwelling, and

grand larceny before separate Oregon juries, all of which

returned less than unanimous verdicts. The vote in the

cases of Apodaza and Madden was 11-1, while the vote

in the case of Cooper was 10-2, the minimum requisite

vote under Oregon law for sustaining a conviction.’

After their convictions had been affirmed by the Oregon

Court of Appeals, 89 Ore. 939, 462 P. 2d 691 (1969),

and review had been denied by the Supreme Court of

1Ore. Const. Art. I, § 11, reads in relevant 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 committed; . . . provided, however, that any ac-

cused person, in other than capital cases, and with the consent of

the trial judge, may elect to waive trial by jury and consent to be

tried by the judge of the court alone, such election to be in writing;

provided, however, that in the 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; ... .”

2 \{-r APODACA v. OREGON

Oregon, all three sought ;review-in this Court upon a

claim that conviction of crime by a less than unanimous

jury violates the right to trial by jury in criminal cases

specified by the Sixth Amendment and made applicable

to the States by the Fourteenth. See Duncan v. Louisi-

ana, 391 U. S. 145 (1968). We granted certiorari to

consider this claim, 400 U. S. 901 (1970), which we now

find to be without merit.

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

occasion to consider a related issue: whether the Sixth

Amendment’s right to trial by jury requires that all

juries consis’ of 12 men. After considering the his-

tory of the 12-man requirement and the functions it

performs in contemporary society, we concluded that it

was not of constitutional stature. We reach the same

conclusion today with regard to the requirement of

unanimity.

I

Like the requirement that juries consist of 12 men, the

requirement of unanimity arose during the Middle Ages *

2? The origins of the unanimity rule are shrouded in obscurity,

although it was only in the latter half of the 14th century that it

became settled that. a Verdict must be unanimous. See 1 W. Holds-

worth, A History of English Law 318 (1927); Thayer, The Jury

and its Development,'5 Harv. L, Rev. 249, 296 (1892). Aft least

four explanations might be given for the development of unanimity.

One theory is that unanimity developed to compensate for the lack

of other rules insuring that a defendant received a fair trial. See

L. Orfield, Criminal Procedure from Arrest to Appeal 347-351

(1947); Haralson, Unanimous Jury Verdicts, 21 Miss. Le J. 191 n.

24 (1950). A second theory is that unanimity arose out of the

practice in the ancient mode of trial by compurgation of adding to

the original number of 12 compurgators until one party had 12

compurgators supporting his position; the argument is that when

this technique of afforeemént was abandoned, the requirement that

one side obtain the votes of all 12 juriors remain-d. See P. Devlin,

Triai by Jury 48-49 (1956); Ryan, Less than Unanimous Jurv®

Verdicts in Criminal*Trials, 58 J. Crim. L., Crim. & Police Sci. 211,

213 (1967). <A third possibility is that unanimity developed because

mi.

o

APODACA v. OREGON 3

and had become an accepted feature of the common-law

jury by the 18th century.* But, as we observed in Wil-

licms, “the relevant constitutional. history casts con-

early juries, unlike juries teday, personally had knowledge of the

facts of a case; the medieval mind assumed there could be only one

correct view of the facts, and, if either all the jurors or only a minor-

ity thereof declared the facts erroneously, they might be punished

for perjury. See T. Plucknett, A Concise History of the Common

Law 131 (5th ed. 1956); Thayer, supra, at 297. Given a view that

minority jurors were guilty of criminal perjury, the development of

a practice of unanimity would not be surprising. The final explana-

tion is that jury unanimity arose out of the medieval concept of con-

sent. Indeed, “[t]he word consent (consensus) carried with it the

idea of concordia or unanimity. .. .” M. Clarke, Medieval Repre-

sentation and Consent 25i (1936). Even in 14th century Parlia-

ments. th-re is evidence that a majority vote was deemed insufficient

to bing the community or individual members of the community

to a legal decision, see id., at 335-336; Plucknett, The Lancastrian

Constitution, in R. Seton-Watson ed., Tudor Studies Presented

to A. F. Pollard 161, 169-170 (1924); * unanimous decision

was preferred. It was only in the 15th century that the decision-

making process in Parliament became avowedly majoritarian, see

1 K. Pickthorn, Early Tudor Government: Henry VII 93 (1967),

as the ideal of unanimity became increasingly difficult to attain.

See M. Clarke, supra, at 266-267. For evidence in 18th century

America of a similar concern that decisions binding on the com-

munity be taken unanimously, see Zuckerman, The Social Context

of Democracy in Massachusetts, 25 William & Mary Q. (3d ser.)

523, 526-527, 540-544 (1968).

’See 3 W. Blackstone, Commentaries on the Laws of England 375-

376 (6th ed. 1775); 3 St. G. ‘Tucker, Biackstone’s Commentaries

375-376 (1803). Four 18th-century state constitutions provided

explicitly for unanimous jury verdicts in criminal cases, see N. C.

Const. of 1776, Art. IX, in 5°F. Thorpe, Federal and State Constitu-

tions 2787 (1909); Pa. Const. of 1786, Art. IX, in 5 id, at 3083; Vt.

Const. of 1786, Art. XI, in 6 id., at 5753: Va. Const. of 1776, § 8, in

7 id., at 3813; while other 18th-century state constitutions provided

for trial by jury-according to the course of the common iaw, see Md.

Const. of 1776, Art. III, in 3 id., at 1686, or that trial by jury would

remain “involiate,” see Ga. Const. of 1777, Art. LXI, in 2 id., at 785;

Ky. Const. of 1792, Art. XII, § 6, in 3 id., at 1274; N. Y. Const. of

1777

(7, Art. XLI, in 5 id., at 2637; Tenn. Const. of 1796, Art. XI, § 6,

7B APMED AMICI: eNO GE SRE f

Se a

4 APODACA v. OREGON

siderable doubt on the easy assumption™. . . that if

given feature existed in a jury at common law in 1789,

then it was necessarily preserved in the Constitution.”

Id., at 92-93. The most salient fact in the scanty history

of the Sixth Amendment, which we reviewed in full in

Williams, is that, as it was introduced by James Madison

in the House of Representatives, the proposed Amend-

ment provided for trial

“by an impartial jury of the freeholders of the

vicinage, with the requisite of unanimity for convie-

tion, of the right of challenge. and other accustomed

requisites... .” 1 Annuals of Cong. 435 (1789).

Although it passed the House with little alteration, this

proposal ran into conwderable opposition in the Senate,

in 6 id., at 3422; be “confirmed,” see N. J. Const. of 1776, Art. XXII,

in 5 id., at 2598; or remain “as heretofore.” See Del. Const. of

1792, Art. I, § 4, in 1 id., at 569° Ky. Const. of 1792, Art. XII, $6,

in 3 id., at 1274; S. C. Const. of 1790, Art. IX, §6. See also

Apthorp v. Backus, 1 Kirby 407, 416-417 (Con. 1788); Grinnell v.

Phillips, 1 Mass. 530, 542 (1805). Although unanimity had not been

the invariable practice in 17th-century America, where majority ver-

dicts were permitted in the Carolinas, Connecticut, and Pennsylvania,

see Williams v. Florida, supra, at 98 n. 45, the explicit constitutional

provisions, particularly of States sweh as North Carolina and Penn-

sylvania, the apparent.change of practice in Connecticut, and the

unquestioning accentance of the unanimity rule by text writers

such as St. George Tucker indicate that unanimity became the

aecepted rule during the 18th century, as Americans became more

familiar with the details of English common law and adopted those

details in their own colonial legal systems. See generally Murrin,

The Legal Transformation: The Bench and Bar of Eighteenth-

Century Massachusetts, in S. Katz ed., Colonial America: Essays

in Politics and Social Development 415 (1970). See also F. Heller,

The Sixth Amendment 13-21 (1951).

*See Andres v. United States, 333 U.S. 740, 748 (1948); Marvell

v. Dow, 176 U. S. 581, 586 (1900) (dictum). Cf. Spriagville v.

Thomas, 166 U.S. 707 (1897); American Publishing Co. v. Fisher,

166 U.S. 464 (1897).

APODACA v. OREGON 5

particularly with regard to the vicinage 1equirement of

the House version. The draft of the proposed. Amend-

ment was returned to the House in considerably altered

form, and a conference committee was appointed. That

committee refused to accept not oniy the original House

language but also an alternate suggestion by the House

conferees that juries be defined as possessing ‘“‘the accus-

tomed requisites.” Letter from James Madison to Ed-

mund Pendleton, Sept. 23, 1789, in 1 Letters and Other

Writings of James Madison 492-493 (1865). Instead,

the Amendment that ultimately emerged from the com-

mittee and then from Congress and the States provided

only for trial

“by an impartial jury of the State and district

wherein the crime shall have been committed, which

district shall have been previously ascertained by

law... .”

As we observed in Williams, one can draw conflicting

inferences from this legislative history. One possible

inference is that Congress eliminated references to una-

nimity and to the other “accustomed requisites” of the

jury because those ;equisites were thought already to be

implicit in the very concept of jury. A contrary expla-

nation, which we found in Williams to be the more

plausible, is that the deletion was intended to have some

substantive effect. See 399 U. S., at 96-97. Surely

one fact that is absolutely clear from this history is that,

after a proposal had been made tc specify precisely which

of the common-law requisites of the jury were to be

preserved by the Constitution, the Framers explicitly

rejected the proposal and instead left such specification

to the future. As in Williams, we must accordingly

consider what is meant by the concept “jury” and deter-

mine whether a feature commonly associated with it is

constitutionally required. And, as in Williams, cur in-

TRS

Bt ee BN

1 a wh Be eae Sector Bey > pe’

6 APODACA v. OREGON

ability to divine “the intent of the Framers” when they

eliminated references to the “accustomed requisites” re-

quircs that in determining what is meant by a jury we

must turn to other than purely historical considerations,

II

Our inquiry must focus upon the function served by

the jury in contemporary society. Cf. Williams v. Flor-

ida, supra, at 99-100. As we said in Duncan, the purpose

of trial by jury is to prevent oppression by the Govern-

ment by providing a “safeguard against the corrupt or

overzealous prosecutor and against the compliant, biased,

or eccentric judge.” Duncan v. Louisiana, supra, at 156.

“Given this purpose, 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... .” Walliams v. Florida, supra, at 100. A

requirement of unanimity, however, does not materially

contribute to the exercise of this commonsense judg-

ment. As we said in Williams, a jury will come to

such a jucgment as long as it consists of a group of

laymen representative of a cross section of the com-

munity who have the duty and the opportunity to de-

liberate, free from outside attempts at intimidation, on

the question of a defendant’s guilt. In terms of this

function we perceive no difference between juries required

to act unanimously and those permitted to convict or

acquit by votes of 10 to two or 11 to one. Requiring

unanimity would obviously produce hung juries in some

situations where nonunanimous juries will convict or

acquit.° But in either case. the interest of the defendant

5 The most complete statistical study of jury behavior has come

to the conclusion that when juries are required to be unanimous,

“the probability that an acquittal minority will hang the jury is

about as great as that a guilty minority will hang it.” H. Kalven &

H. Zeisel, The American Jury 461 (1966).

a

APVIDACA v. OREGON 7

in having the judgment of his peers interposed between

himself and the officers of the State who prosecute and

judge him is eqvally well served.

III

Petitioners nevertheless argue that unanimity serves

other purposes constitutionally essential to the continued

operation of the jury system. Their principal contention

is that a Sixth Amendment “jury trial” made mandatory

on the States by virtue of the Due Process Clause of

the Fourteenth Amendment, Duncan v. Louisiana, supra,

should be held to require a unanimous jury verdict in

order to give substance to the reasonable doubt standard

otherwise mandated by the Due Process Clause. See

In re Winship, 397 U. S. 358, 363-364 (1970).

We are quite sure, however, that the Sixth Amend-

ment itself has never been held to require proof beyond

a reasonable doubt in criminal cases. The reasonable

doubt standard developed separately from both the jury

trial and the unanimous verdict. As the Court noted in

the Winship case, the rule requiring proof of crime

beyond a reasonable doubt did not crystallize in this

country until after the Constitution was adopted. See

id., at 361. And in that case, which held such a burden

° For the history of the reasonable doubt requirement, see generally

C. McCormick, Evidence § 2497 (1954); 9 Wigmore, Evidence

§ 2497 (3d ed. 1940); May, Reasonable Doubt in Civil and Crim-

inal Cases, 10 Am. L. Rev. 642, 651-660 (1876). According to

May and McCormick, the requirement of proof beyond a reasonable

doubt first. crystalized in the case of Rez v, Finney, a high treason

case tried in Dublin in 1798 and reported in MacNally, Rules of

Evidence on Pleas of the Crown 2 (1802). Confusion about the

tule persisted in the United States in the early 19th century, where

it was applied in civil as well as criminal cases, see, e. g., Ropps v.

Barker, 4 Pick. (21 Mass.) 239, 242 (1826): it was only in the latter

half of the century that the reasonable doubt standard ceased to be

applied in civil cases, see Ellis v. Buzzell, 60 Me. 207 (1872), and

8 APODACA v. OREGON

of proof to be constitutionally required, the Court pur-

ported to draw no support from the Sixth Amendment,

Petitioners’ argument that.the Sixth Amendment re-

quires jury unanimity in order to give effect to the

reasonable doubt standard thus founders on the fact that

the Sixth Amendment does not require proof beyond a

reasonable doubt at all. The reasonable doubt argu-

ment is rooted, in effect, in due process and has been

rejected in Johnson v. Louisiana, ante.

IV

Petitioners also cite quite accurately a long line of

decisions of this Court upholding the principle that the

Fourteenth Amendment requires jury panels to reflect a

cross section of the community. See, e. g., Whitus v.

Georgia, 385 U.S. 545 (1967); Smith v. Texas, 311 U.S.

128 (1940); Norris v. Alabama, 394 U. S. 587 (1935);

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

then contend that unanimity is a necessary precondition

for effective application of the cross section require-

ment, because a rule permitting less than unanimous

verdicts will make it possible for convictions to occur

without the acquiescence of minority elements within

the community.

There are two flaws in this argument. One is peti-

tioners’ assumption that every distinct voice in the com-

‘munity has a right to be represented on every jury and

a right to prevent conviction of a defendant in any case.

All that the Constitution forbids, however, is systematic

exclusion of identifiable segments of the community from

jury panels and from the juries ultimately drawn from

those panels; a defendant may not, for example, chal-

lenge the makeup of a jury merely because no members

that American courts began applying it in its modern form in crim-

inal cases. See Commonwealth v. Webster, 5 Cush. (59 Mass.) 295,

320 (1850). See generally May, supra.

APODACA v. OREGON 9

of his race are on the jury, but must prove that his race

has been systematically excluded. See Swain v. Alabama,

380 U. S. 202, 208-209 (1965); Cassell v. Texas, 339

U. S. 282, 286-287 (1950); Akins v. Texas, 325 U.S. 398,

403-404 (i945); Ruthenberg v. United States, 245 U.S.

480 (1918). No group, in short, has the right to block

convictions; it has only the right to participate in the

overall legal processes by which criminal guilt and in-

nocence are determined.

We also cannot accept petitioners’ second assumption—

that minority groups, even when they are represented on

a jury, will not adequately represent the viewpoint of

those groups simply because they may be outvoted in

the final result. They will be present during all de-

liberations, and their views will be heard. We cannot

assume that the majority of the jury will refuse to weigh

the evidence and reach a decision upon rational grounds,

just as it must now do in order to obtain unanimous

verdicts, or that a majority will deprive a man of his

liberty on the basis of prejudice when a minority is pre-

senting a reasonable argument in favor of acquittal.

We simply find no proof for the notion that a majority

will disregard its instructions and cast its votes for guilt

or innocence based on prejudice rather than the evidence.

We accordingly affirm the judgment of the Court of

Appeals of Oregon.

It is so-ordered.

=~

f

| | |

SUPREME COURT OF THE UNITED STATES

No. 69-5046

Robert Apodaca, Harry Morgan)

Cooper, Jr., and James Arnold |On Writ of Certiorari

Madden, Petitioners, ) to the Court of Ap-

v. peals of Oregon.

Oregon. |

[May 22, 1972]

Mr. JusTICE STEWART, with whom Mr. JusTIcE BREN-

NAN and Mr. Justice MARSHALL join, dissenting.

In Duncan v. Louisiana, 391 U. S, 145, the Court

squarely held that the Sixth Amendment right to trial

by jury in a federal criminal case is made wholly appli-

cable to state criminal trials by the Fourteenth Amend-

ment. Unless Duncan is to be overruled, therefore, the

only relevant question here is whether the Sixth Amend-

ment’s guarantee of trial by jury embraces a guarantee

that the verdict of the jury must be unanimous. The

answer to that question is clearly “yes,” as my Brother

PowELL has cogently demonstrated in that part of his

concurring opinion that reviews almost a century of

Sixth Amendment adjudication.*

Until today, it has been universally understood that

a unanimous verdict is an essential element of a Sixth

Amendment jury trial. See Andres v. United States,

333 U. S. 740, 748; Patton v. United States, 281 U. S.

276, 288; Hawaii v. Mankichi, 190 U. S. 197, 211-212;

Maxwell v. Dow, 176 U.S. 581, 586; Thompson v. Utah,

170 U. S. 348, 351, 353; cf. 2 J. Story, Commentaries

on the Constitution of the United States § 1779 n.

(5th ed. 1891).

I would follow these settled Sixth Amendment prece-

dents and reverse the judgment before us.

*See pp. —-, ante (concurring opinion of Mr. Justice Powe 1).