Split Juries Should Not Result in Convictions

A 10-2 guilty vote in a murder trial usually leads to a hung jury. However, in Oregon defendants can be convicted in felony cases despite one or two jurors voting for acquittal. Oregon is now the only state in the nation where a jury can convict a defendant without a unanimous verdict. Hopefully, this won’t be the case for long.

The Supreme Court is currently considering the constitutionality of non-unanimous juries in a case called Ramos v. Louisiana. Until 2018, Louisiana was the only other state that allowed juries to convict defendants with non-unanimous verdicts. In November of 2018, Louisiana voters approved a constitutional amendment that requires unanimous jury verdicts in felony cases for crimes committed on or after Jan. 1, 2019. While this a step forward in protecting civil liberties, it does nothing for the defendants who were convicted of felonies by non-unanimous verdicts.

The Sixth Amendment establishes the right to an impartial jury. In Apodaca v. Oregon,  the Supreme Court ruled that the Sixth Amendment guarantees defendants the right to a unanimous jury. However, the Court ruled that this right only applies to defendants in federal trials. In Ramos, the Court has a chance to correct this erroneous ruling and rule that the Sixth Amendment’s guarantee to a unanimous trial was incorporated by the Fourteenth Amendment and as such applies to state governments.

The doctrine of incorporation is an easy one to grasp. The Bill of Rights are the first ten amendments to the Constitution. The Bill of Rights was initially interpreted to only apply to the federal government. However, starting in the 1920s, the Supreme Court has interpreted the Fourteenth Amendment to “incorporate” most portions of the Bill of Rights to apply to state governments as well. The most recent example of incorporation came in 2019 in a case called Timbs v. Indiana. In Timbs, the Court ruled that the Eighth Amendment’s excessive fines clause is applicable to the states via incorporation by the Fourteenth Amendment.

Commentators suggest that the Timbs decision indicates that the Court will incorporate the Sixth Amendment to be applicable to the states. However, the Supreme Court has previously stated before that the Sixth Amendment “was the one exception to complete incorporation.” Despite this statement, the Court should incorporate the Sixth Amendment and rule that allowing non-unanimous juries to convict defendants of felonies in state trials is unconstitutional.