A Brief History of Non-Unanimous Jury Verdicts

The Sixth Amendment to the U.S. Constitution provides: "In all 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, which district shall have been previously ascertained by law . . . " When read closely, the Sixth Amendment only granted a criminal defendant's right to a trial by jury, but but it does not require the jury verdict to be unanimous.

In 1970, in In re Winship, the Supreme Court set the standard of criminal trials to be beyond a reasonable doubt; according to the court, the standard stemmed from the due process clause of the Fourteenth Amendment. And since it was a constitutional case, the standard applies to not only all federal criminal cases, but is also binding on all 50 states. That leads to our next question - does beyond a reasonable doubt necessarily means an unanimous jury verdict?

On the other hand, back in 1934, prompted by a notorious murder case, Oregon amended the state constitution so 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."

Following In re Winship, in 1972, the issue of unanimous jury verdict was brought up again in Apodaca v. Oregon. The Supreme Court held that state jury may convict a defendant by less than unanimity even though that is not the case in federal criminal trials, but how they reached that decision was an intriguing reflection of common law. Five justices out of nine held that unanimity is a requirement in the Sixth Amendment, but Justice Powell, one of the five that voted for unanimity, dissented that unanimity is not incorporated through the Fourteenth Amendment. As a result, Oregon gets to keep its non-unanimous criminal jury verdict law. On the same day, the Supreme Court also ruled on Johnson v. Louisiana, holding that Louisiana's practice of allowing 9-3 jury votes to reach a verdict is not unconstitutional.

Interestingly, in 1979, the Supreme Court ruled on the issue again, slapping Louisiana's wrist this time. In Burch v. Louisiana, the Supreme Court held that although unanimous jury verdicts are not required in state courts, a 5-1 jury vote to conviction is not enough to meet the Constitutional requirements of due process. Finally, in 2018, Louisiana amended its state constitution to require unanimous verdicts in criminal trials. But since the amendment does not apply retrospectively, Ramos v. Louisiana is now standing in

Now with Oregon as the last state standing, the Supreme Court is picking the issue up again. The Louisiana Constitutional amendment does not kick in until 2019 and does not apply retrospectively. As a result, Ramos v. Louisiana, a case challenging the constitutionality of non-unanimous jury verdicts, is once again standing in front of the Supreme Court. Although the ruling would have no implication on all of the states but Oregon, this highly anticipated decision is expected to patch up one of the last holes in criminal jury unanimity. That being said, with the direction the current Court has been taking, I suspect they would avoid making a substantial decision and punt the issue on some minute technicality instead. Here is to hoping I'm wrong!