# Opinion — Apodaca v. Oregon > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0013%3A6 ## Record - **Collection:** Supreme Court brief - **Document type:** Opinion - **Published:** January 1, 1972 - **Citation:** 406 U.S. 404 ## Text (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). 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). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0013%3A6. Public record. Not legal advice.