Juries

Unanimous Juries and Incorporation of the Bill of Rights

Unanimous juries (like the ban on excessive fines) might be an easy case; but at some point we will need a theory.

|The Volokh Conspiracy |

I was very excited to the see the Supreme Court agree to take up the constitutionality of non-unanimous jury verdicts in Ramos v. Louisiana. For reasons that have been well-discussed by others, Louisiana's practice appears to be an outlier both historically and today, and very likely a good occasion to overrule a Supreme Court precedent that is contrary to the Constitution's original meaning.

I assume that it is not a coincidence that the cert grant happened shortly after the Court's decision in Timbs v. Indiana to unanimously incorporate the Excessive Fines Clause against the states. At oral argument in Timbs, Justice Gorsuch seemed to suggest that complete incorporation of the bill of rights was at this point a foregone conclusion. But in the decision in Timbs it became clear that the Justices may not have complete agreement on a theory of incorporation, with the majority extending the Court's current substantive due process precedents, while Thomas takes the more historically accurate path of applying the Privileges or Immunities Clause. As Justice Gorsuch noted in a concurring opinion, in Timbs, nothing turned on the Court's theory of incorporation. And that is probably true in Ramos too. But at some point, it might.

So what does the Constitution tell us about incorporation of the bill of rights, and what should the Supreme Court do about the other enumerated rights it has not incorporated, such as the Seventh Amendment's guarantee of a civil jury, or the Fifth Amendment's right to grand jury indictment. Here, as usual, I'm in the debt of Chris Green, who has written:

The[] four most plausible approaches for basic privileges that must be given to all citizens of the United States are (a) rights in the Bill of Rights or elsewhere in the text of the federal constitution as limits on the federal government, (b) rights prevalent in 1868, when the Fourteenth Amendment was adopted, (c) morally-genuine rights, and (d) rights prevalent today, at the time we are applying the Clause.

Timbs was an easy case because it satisfied all four approaches. Ramos also seems to satisfy at least three, or maybe all four. (a) The Supreme Court has held that the Sixth Amendment requires unanimous juries for the federal government. (b) Lousiana has long been one of the few outliers on non-unanimous juries. (c) I suppose one could make an argument about whether a procedural right like jury unanimity is "morally genuine," and this is tied-up with the presumption of innocence, the N-guilty-men principle, and so on, but given the current scholarship on the Louisiana jury rule I doubt this is going to be an issue. (d) Louisiana remains an outlier today.

But what about the Seventh Amendment or the grand jury rule? Here it starts to matter much more what approach we use. Approach (a) would incorporate both. The best study of approach (b), by Steve Calabresi and Sarah Agudo, finds that in 1868, grand jury rights were prevalent in only 19/37 states, so that right would not be incorporated. Civil jury rights are more ambiguous. 36 out of 37 states had a constitutional jury right, but 18 of those 36 referred to juries generically while the other 18 specificied civil juries. Depending on the exact nature of the historical inquiry, this creates an ambiguity, though Calabresi and Agudo argue that incorporation of the Seventh Amendment is the better path.

Approach (c) is hard to think through here, but it seems like there could be plausible arguments either way, based in part in both the values and abuses of the jury in different contexts.

Approach (d), which looks to rights prevalent today, would presumably not incorporate the grand jury, which is required in less than half the states. The civil jury trial right is more complicated. Some kind of civil jury trial right exists today in almost every state, but (I am informed by friend and co-blogger Sam Bray) the scope and exceptions to the requirement differ from state to state. States draw the law/equity line in different places, they date the right to different years, and they make different kinds of practical exceptions. If approach (d) looks for the spot where a supermajority of states have converged today, the venn diagram for civil juries may be a very tiny one.

So far I believe Justice Thomas has chosen option (a). But there is strong historical support for four different related approaches to incorporation of the Bill of Rights, and the difference between (a) and (b) or (d) may turn out to be more consequential in future cases. It will be very interesting to see which approach Justice Gorsuch, and perhaps others, decide to follow.

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  1. What’s wrong with A+B+C+D?

  2. It would be interesting to see an originalist justification for the requirement of unanimous jury verdicts for federal criminal cases. As I understand it SCOTUS precedent concludes that trial by jury imports the common law understanding of a jury, as at the time of adoption of the 6th Amendment, which apparently includes the requirement for unanimity. EV did a learned piece here :

    https://reason.com/volokh/2019/03/18/
    does-the-constitution-require-unanimous

    And it contains much good stuff about foundation era thinking on the subject

    But it does seem to be very focussed on original intent – ie this was intended to confer the common law rights in full – rather than original meaning ie this is what the expression “trial by an impartial jury” actually meant.
    The fact that States have been merrily trying people with non unanimous juries without calling the process “trial by wotsit” or “trial by thingummy” indicates that the words trial by jury have – for at least a while – been quite capable of including the concept of trial by non unanimous jury.

    Leaving aside policy preferences, it seems to me that if SCOTUS is minded to incorporate the trial by jury rule in the 6th Amendment against the States, on originalist grounds, it ought at least to take a moment to underline why it thinks an originalist interpretation requires unanimity in federal trials.

    They might also run us through why defendants are required to suffer trial by juries with women jurors.

    1. “the words trial by jury have – for at least a while – been quite capable of including the concept of trial by non unanimous jury.”

      A key aspect of originalism is rejecting the idea that linguistic evolution can change the meaning of laws. Meaning is fixed at the time of adoption, the legal meaning is the original meaning.

      So that states began adopting non-unanimous juries after the jury trial guarantees were ratified is irrelevant, it represents an abuse, not a change in the law.

      1. No I understand that from an originalist point of view, we’re interested in the meaning of “trial by an impartial jury” at the time of the adoption of the 6th Amendment (for federal purposes) and the 14th Amendment (for State purposes.) My point was simply that if States have been doing trial by non unanimous jury for a while, then the meaning has not required unanimity for a while. The question then becomes – when did the meaning change from requiring unanimity, to not. Or did the meaning all along encompass the possibility of non unanimity ?

        Thus assuming that no States (or other common law jurisdictions) had non unanimous juries before 1791; the question becomes, if – in 1792 – Maryland, say, had amended their State law to say that juries could bring in 11-1 majority verdicts, what would peoople have said ?

        (a) outrageous, disgaceful, it’s a fundamental right to have a unanimous jury verdict or
        (b) ridiculous, absurd – how can they even describe it as a “jury” trial if it’s not unanimous ? That’s like “dry water.”

        So relevant to the question of original meaning is – when did the first common law jurisdictions, inc States, first start having non unanimous juries and when they did, was the fuss about the wickedness of it, or the fact that it was a contradiction in terms ? The closer to 1791 that we see non unanimous juries arising, the less likely it is that the 1791 publc understanding of jury would have led peope to say “non unanimous jury = dry water.”

        1. If the 6th amendment had its meaning fixed at the time of adoption, and is then incorporated, it must be that fixed meaning that is incorporated, and contrary practice that evolved after that ratification, but before the 14th amendment’s ratification, is just part of what the 14th amendment was adopted to stop.

          I’d agree that, if a significant number of states had non-unanimous juries at the time of that ratification, it would be evidence that unanimity was not a part of the definition of trial by jury. This was not, by my understanding, the case.

          If some states, not being bound by the 6th amendment at the time, later adopted non-unanimous juries, OTOH, this is irrelevant. The 14th amendment was adopted to change practice, not fix it.

          1. 1. Your analysis that the 14th (if incorporated) must have incorporated the 1791 meaning of the 6th seems impeccable.

            2. I’d say one would be sufficient. It would indicate that the meaning of “trial by impartial jury” could not have required unanimity. Indeed even zero would not rule out that possibility since we are not attempting to define an expression merely by reference to its real world examples, but by reference to what people would have accepted as falling within the meaning of the words at the time. Thus “arms” include AK47s in 2A, even though no one at the time had ever seen one, because “arms” meant any kind of personal weapon. So the question is as set out in my Maryland example.

            3. I agree, changes in meaning post ratification are irrelevant. But changes in application post ratification may provide evidence of pre-ratification meaning if the changes in application were not too far distant in time. Since – unless you have a determined and deliberate attempt to change the meaning of a word (as we often see these days) words tend to change their meanings quite slowly. Usually.

            Anyway. My point is not that unanimity is not inherent in the meaning of the 6th, but that if SCOTUS is going to require unanimity in State courts on origiinalist grounds, via the 14th and the 6th, they could usefully explain why they conclude that original meaning (as opposed to original application) requires unanimity for the purposes of the 6th.

          2. “If the 6th amendment had its meaning fixed at the time of adoption, and is then incorporated, it must be that fixed meaning that is incorporated, and contrary practice that evolved after that ratification, but before the 14th amendment’s ratification, is just part of what the 14th amendment was adopted to stop.”

            Interestingly, Scalia always considered the 14th Amendment its own animal, because, the result-oriented social conservative hack he was, he knew that if “due process” meant what it meant when the FIFTH AMENDMENT was adopted, there was a very strong case it included a right to an abortion (abortions were lawful basically everywhere in the US in 1791 but many states had criminalized it before the 14th Amendment was adopted).

            1. Scalia was known to… waver, let’s call it… from bedrock originalism when originalism led to a result he didn’t like.

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      2. “A key aspect of originalism is rejecting the idea that linguistic evolution can change the meaning of laws. Meaning is fixed at the time of adoption, the legal meaning is the original meaning.
        So that states began adopting non-unanimous juries after the jury trial guarantees were ratified is irrelevant, it represents an abuse, not a change in the law.”

        The relevant text is in section 11 of the Oregon Constitution:
        “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”

        The Oregon Constitution was adopted prior to the fourteenth amendment, not after.

        1. I believe the Oregon Constitution was amended in 1934 to allow non-unanimous verdicts.
          I could be wrong, but I don’t think so.

          1. You are correct. That amendment was made via ballot initiative in 1934 after a sensational trial of Jake Silverman for the murder of Jimmy Walker. A sole juror in that case held out against the charge of second-degree murder. The jury ultimately came back with a compromise conviction of manslaughter, resulting in a 3 year sentence for what was characterized in the press as a gangland slaying of both Walker and a woman, Edith McClain. (For reasons not entirely clear, Silverman was never charged with McClain’s murder despite the circumstantial evidence for the double-murder being identical.)

            Newspaper coverage of the trial focused heavily on Silverman’s race (Jewish) and “the vast immigration into America from southern and eastern Europe, of people untrained in the jury system”.

            In other words, it was a bad case, poorly prosecuted, with lots of inflammatory and racist media coverage leading to a bad law.

            It is worth noting, however, that the 1934 amendment was restricted to non-murder felony cases. The Oregon rule was upheld by SCOTUS in 1972 (Apodaca v Oregon). Oregon amended their constitution again in 1999 to allow non-unanimous murder convictions.

            1. “Oregon amended their constitution again in 1999 to allow non-unanimous murder convictions.”

              According to the Secretary of State’s office, the current text of Article 11 says:

              “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”

              1. My apologies. Oregon tried to amend in 1999 to allow for non-unanimous verdicts even in murder cases but that ballot measure failed. I misread the table.

        2. Yes, but the meaning of the 6th amendment was fixed at the time of ITS adoption, and the 14th amendment when IT was adopted incorporated that fixed meaning.

          As I said, the 14th amendment was not adopted to ratify existing practice by the states, but instead to bring it into compliance with the bill of rights.

          1. “Yes, but the meaning of the 6th amendment was fixed at the time of ITS adoption”

            No argument there. The 6th amendment does not apply to the states, but to the federal government.

            At the time of ITS adoption.

            “As I said, the 14th amendment was not adopted to ratify existing practice by the states”

            How does that apply? Oregon has a better bill of rights than does the federal government. (Unless you think unanimous jury verdicts are more better than ONLY 10/12 or 11/12 in protecting the innocent.)

          2. Yes, but the meaning of the 6th amendment was fixed at the time of ITS adoption, and the 14th amendment when IT was adopted incorporated that fixed meaning.

            I agree with the first statement, but not the second. The 14th amendment means what its adopters thought it meant, not what different people from a different time thought a different thing meant.

            1. And if the adopters thought it meant that the states were being required to respect, (At a minimum!) the rights enumerated in the Bill of Rights, then what those rights were understood to mean was what was incorporated.

              1. … assuming, that what it meant in 1791 was STILL what it meant in 1868. If it wasn’t, and isn’t, then the whole house of cards collapses.

                (Leaving aside the fact that Oregon’s had non-unanimous jury verdicts for at least 8 decades, and it would have fallen to the first challenge to come along if your interpretation were correct.)

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  3. “Louisiana remains an outlier today.”

    They do? I thought they got rid of non-unanimous juries.

    1. Yes they did. Last November the Louisiana Constitution was amended by an overwhelming vote to require unanimous juries. I personally think many people were unaware of the existing law and assumed a unanimous jury verdict was required. The only remaining outlier is Oregon, funny how that seems to be missed.

      I wonder what will happen to existing convictions. There are many some of them very old and retrying all of them will be time consuming and expensive, especially since the Supreme Court previously blessed the non-unanimous jury verdict.

  4. Are both ends required to be unanimous? I can see conviction, but does a unanimity requirement open the door to re-trial if 11 of 12 vote not guilty?

    1. If you’re acquitted, that’s it, game over. It doesn’t have to be unanimous. That’s a consequence of the double jeopardy clause.

      You can sometimes end up tried again if the judge sees an acquittal coming, and declares a mistrial before the jury can return its verdict.

      1. You can also sometimes end up tried again because dual sovereigns.

        1. Yes, the idea of dual sovereigns pretty effectively turned the double jeopardy clause into a triple jeopardy clause.

          If you take the 10th amendment seriously, dual sovereigns is a joke; States and the federal government aren’t ever supposed to have overlapping jurisdiction.

          1. “If you take the 10th amendment seriously, dual sovereigns is a joke; States and the federal government aren’t ever supposed to have overlapping jurisdiction.”

            Unless if you count the fact that the Constitution expressly countenances it. Hint: You don’t need a supremacy clause if state and federal power don’t overlap.

            1. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

              The supremacy clause means that the states have to obey the Constitution and the laws made pursuant to it. It doesn’t imply any overlap between those powers.

              1. You’ve got both backwards. The amendment you cite isn’t saying there can’t be overlap, it’s saying that all the stuff not yet covered goes that way.

                And the supremacy clause means that where there is overlap, as there is intended to be (except in places the Constitution expressly reserves powers to specific authorities), the feds get to push the states out, if they choose to do so.

                The militia are citizens under state power… unless the President takes command of them.

          2. Barron v baltimore basically confirmed the BoA applied to the federal govt . The dual sovereigns is a devise to circumvent the “application of the BoA against the federal government.

            It is hard to make the argument the BoA only applied to the federal government and then make the argument that 5A did not apply to the federal government.

      2. “If you’re acquitted, that’s it, game over. It doesn’t have to be unanimous.”

        Um, not so. In that case it is a hung jury, which is a type of mistrial, and the government may retry without offending the double-jeopardy clause. United States v. Josef Perez, 22 U.S. (9 Wheat) 579 (1824). In fact, absent a formal verdict, a defendant can be retried where the deadlock was on lesser included offenses, and the jury has reported that they are unanimous on acquittal for main the charge. Blueford v. Arkansas, 566 U.S. 599 (2012) (Roberts, J) (but see, Sotomayer, J, dissenting).

        As far as a mistrial goes, it’s my impression that it is usually asked for by the defendant for prosecutor misconduct or bad evidence getting in, i.e., the type of error that result in reversal and granting of a new trial. Sua sponte and prosecution requests for mistrials generally have a higher bar, absent juror misconduct. For instance, the government can’t ask for a mistrial because it can’t locate a witness. I have never heard of a case where “the judge sees an acquittal coming” and therefore declares a mistrial out of the blue. The closest to that would be the Blueford case above, where it would seem that the judge could have accepted an acquittal on the main charge, and allowed retrial only on the lesser included offenses. The requirement for formal finality of the jury verdict seems overly formalistic to me.

    2. “Are both ends required to be unanimous?”

      Not in Oregon.

      “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”

      –Oregon state constitution, article 11.

      So in Oregon, you can be acquitted if 2 members of the jury think you’re guilty, and you can be convicted of any crime except murder 1 even if two of the members of the jury think you didn’t do it, or think you probably did it but the state didn’t prove it.

      Note that Oregon’s Constitution has it’s own bill of rights, which is not identical to the federal. Oregon’s freedom of speech protection, for example, is stronger than federal first amendment protection.

      1. I think that says it requires 10 votes to either convict or acquit, if you don’t have 10 votes one way or the other you get a mistrial, but I’m not that familiar with Oregon practice. In any event your math doesn’t work. If you have a jury of 12 members and 10 vote to convict and to vote to acquit you don’t have an acquittal, you have a conviction.

        1. ” In any event your math doesn’t work. If you have a jury of 12 members and 10 vote to convict and to vote to acquit you don’t have an acquittal, you have a conviction.”

          Which is what I said.

          ” you can be convicted of any crime except murder 1 even if two of the members of the jury think you didn’t do it, or think you probably did it but the state didn’t prove it.”

          For murder 1, it takes a unanimous jury verdict of guilty to convict. For other crimes which are not murder 1, it takes 10 of the 12 jurors voting guilty to convict.

          There’s nothing wrong with MY math. Perhaps you need to check your work?

  5. The Constitution describes at least one instance where a jury does NOT need to be unanimous to produce a conviction, but rather, only a 2/3 supermajority is required.

    So it will be fairly difficult to argue that the Constitutional text requires unanimous juries. You’ll have to import that requirement from somewhere else. And, if one is truly originalist, the requirement for juries at all was not present in the original Constitution, but the 2/3-required-to-convict provision WAS.

    1. I recollect that someone on another thread explained to you that impeachment is not a criminal prosecution. Plainly it sailed right by you.

      1. If only it were true that if you recollect something, it must be a fact.

        1. That was me, and Lee’s recollection was correct.

          “Judgement in Cases of Impreachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to Law.”

          1. If only it were true that if you said something, it must be fact.

            1. If impeachment has no criminal penalty, and leaves you still liable to be indicted, tried, and so forth according to law, it follows that impeachment isn’t a criminal prosecution.

              It’s just a proceeding to determine if you’ll be removed from office, and barred from holding any.

              1. “It’s just a proceeding to determine if you’ll be removed from office, and barred from holding any.”

                …for conviction of treason, bribery, or other high crimes and misdemeanors.

                Yeah, they probably didn’t mean a person who had a trial, at which they were convicted of crimes, had been subjected to criminal trial.

                1. Clearly they didn’t mean that the impeached person had had a criminal trial because they explicitly said that “the Party convicted shall nevertheless be liable and subject to Indictment, Trial”, etc. If the “Party convicted” had been criminally tried, then any subsequent trial would be barred by the double-jeopardy rule.

                  Okay, technically the double-jeopardy rule was not made explicit until the 5th Amendment was ratified. So it’s possible that the original drafters thought that you could be criminally tried twice. That logic stopped in 1791. And given the writings of the Founders at the time, it wasn’t really a plausible argument anyway.

                  1. ” If the “Party convicted” had been criminally tried, then any subsequent trial would be barred by the double-jeopardy rule.”

                    That would be true, if that’s how double-jeopardy worked. But it isn’t. The Constitution doesn’t say that people can’t be tried twice. It says they can’t be placed in jeopardy of life or limb twice for the same offense. The penalty for impeachment and conviction includes loss of neither life nor limb. Therefore fifth amendment jeopardy isn’t attached to impeachment plus conviction by the Senate, and a person who has been impeached, and convicted, than then be indicted, tried, and imprisoned for the same offense.

                    ” That logic stopped in 1791.”

                    Which is why you’re raising it, and not me.

  6. “what does the Constitution tell us about incorporation of the bill of rights”

    Nothing.

    Nothing in the text, its a federal court power grab with no textual foundation.

  7. Here’s a theory on why unanimous is proper: if even a single juror dissents, the case is not proven beyond a reasonable doubt.

    I’d extend this to appeals decisions. If learned judges can’t agree on a decision, with months to make up their minds, how are ordinary folk supposed to make similar decisions on their own in a much shorter time, sometimes even just a fraction of a second? There’s something unseemly about deciding the constitutionality of a major law by 5-4 decisions.

    1. Sorry for jumping the gun here. I get pretty easily riled up by non-unanimous decisions, and that has nothing to do with originalism.

    2. The contrary view is that “if even a single juror dissents, the case is not proven beyond a reasonable doubt” doesn’t follow. Because a single juror may dissent for reasons other than his being unconvinced by the evidence.

      In more prosaic terms, if you’re a bad guy, if juries have to bring in unanimous verdicts, you only have to nobble one of them.

      In more spiritually uplifting terms, you’ll have heard of jury nullification.

      1. What about judges in nonunamimous decisions? Are they “nobbled” as well? Are they nullificationists?

        1. And here is a case where a nonunamimous jury really raises questions of racial justice. What if there are two black jurors and 10 white ones, the white ones vote guilty, and the black ones vote not guilty? In Oregon that would mean a conviction. What, then, becomes of all the effort the NAACP and others put into ending race discrimination in jury selection, if after getting on the jury the black jurors can simply be outvoted?

          1. In a country where we’re all equal before the law, black jurors must be as subject to being simply outvoted as any other jurors.

            1. I suspect that’s a bit of sarcasm, but I don’t think a minority of jurors, racial or otherwise, ought to be outvoted.

              1. Then don’t do crimes in Oregon, and you won’t have to worry about it.

                1. That’s begging the question.

                  “The discovery of a black Lab named Lucy led to the unraveling of a criminal case Monday against an Oregon man who had begun serving a 50-year prison sentence….

                  “In the trial, the complainant testified Horner had threatened to shoot her animals if she went to the police about the alleged molestation, and said she saw him shoot her dog, killing it, to make his point.

                  “Six months after a jury convicted Horner in a verdict that was not unanimous, he asked the Oregon Innocence Project for help….

                  “”Lucy the dog was not shot. Lucy the dog is alive and well,” Hummel’s office said in a statement….”

          2. In most Oregon counties, there aren’t even 2/12 black people. I’ve been on an Oregon jury twice, one with no black people, and one with 1. In neither case was anyone outvoted. (The first jury I was on, the jury voted unanimously to convict on one charge and acquit on the other; the other was a civil case.)

        2. Eddy : What about judges in nonunamimous decisions? Are they “nobbled” as well?

          I think you’ll find that a lot of judges come “pre-nobbled” even on factory settings.

          1. And at least jurors don’t routinely accept campaign donations from rich lawyers.

            1. Oregon judges almost always run unopposed. It’s fairly rare to see a contested seat.

              (In practice, most judges retire in mid-term, and the governor appoints the replacement.)

              So… not a lot of campaign contributions.

              1. I remember a professor telling me about Oregon’s clean elections. That still leaves 49 states.

                1. “Laboratories of democracy”

  8. “Here’s a theory on why unanimous is proper: if even a single juror dissents, the case is not proven beyond a reasonable doubt.”

    On the other hand, the Constitution doesn’t call out a requirement that the case be proven beyond a reasonable doubt, it calls out a requirement that the accused receive a jury trial. Remaining silent on questions of what, exactly, it means to receive a jury trial may be seen as evidence that they considered such details to be so self-evident as to not require being spelled out, or it may be seen as evidence that the nice people who wrote it and took the steps necessary to add it to the Constitution thought those details were better left up to Congress to decide. Similarly, the authors of the Fourteenth didn’t spell out what rights of citizenship were to be protected from infringement by the state… perhaps they thought these, too might be better spelled out by Congress (or the state governments in all their wonderful republican forms). One can make assumptions, but then pretending those assumptions are passed down from on high… bad form.

  9. If grand juries weren’t protected in the Fifth Amendment, then I suspect the Supremes would have incorporated the whole Bill of Rights by this time, with the caveat that they might have allowed some flexibility in dealing with civil juries.

  10. What I’d be interested to know is if anybody, brought to trial on a serious charge without a grand jury in some state court, has made a 14th Amendment objection for the record, in hopes of becoming a test case for incorporating the grand jury.

    1. There’s an Oregon case where the grand jury voted no true bill… and the prosecutor and the defense attorney proceeded to negotiate a plea deal. It’s literally the case that nobody noticed the grand jury hadn’t indicted the fellow until after he was released from prison.

  11. What I’d be interested to know is if anybody, brought to trial on a serious charge without a grand jury in some state court, has made a 14th Amendment objection for the record, in hopes of becoming a test case for incorporating the grand jury.

    A guy named Joseph Hurtado did back in 1884.

    It didn’t work.

    1. I’ve heard of his case, but I was actually thinking of, like, in the past couple years.

      1. (On incorporation, the Supremes have been overruling precedents right and left, the only question is whether the Hurtado case will be one of the overruled precedents)

        1. Since the SC is binding, you’d have to get back to the SC to get it overturned… expensive, and time-consuming, and you get to be on the news a lot while identified as a criminal. Wonder why people aren’t jumping at the chance…

          1. I was hoping that if anyone *were* trying to take their grand-jury claims to a higher court, someone of a legal blog might be familiar with the case.

            1. someone *on* a legal blog

    2. Though to be clear, it didn’t work because the system that Calif put in place, using a preliminary hearing with the defendant and counsel present, and full right to cross examination, was considered to be more protective of defendants’ rights than the use of a grand jury.

      1. Blackstone:

        “A grand jury however ought to be thoroughly persuaded of the truth of an indictment, so far as their evidence goes; and not to rest satisfied merely with remote probabilities: a doctrine, that might be applied to very oppressive purposes.”

        http://avalon.law.yale.edu/18t…..k4ch23.asp

      2. The test would be whether a prosecutor could charge a ham sandwich at a preliminary hearing.

        Actually, though, the grand jury, unlike a criminal or civil jury, was not an established right at common law at the time of the constitution. English common law allowed for both indictment and initiation of proceedings by a criminal information filed by the attorney-general, or even by private persons acting as “informers” per various statutes who could collect some or all of the criminal fines (though that was mostly for lesser offenses).

        In other words, it fails tests b, c and d, leaving only the full incorporation argument. It would not qualify as a “fundamental right” as articulated in MacDonald, but it seems to me that criminal and civil juries would.

  12. I wonder what the state of Oregon law will be if SCOTUS rules that 10 jurors are required for conviction. Presumably there’s no requirement of unanimous juries for acquittal, so there’s no reason to think that that portion of Oregon law wouldn’t remain intact.

    1. The relevant text:

      “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”

  13. Here’s a simpler fix. Amend the Constitution to include a definition that “trial by jury” means “and the trial isn’t over until there’s a unanimous verdict.”

    1. And another amendment could define the right to counsel and the right against self-incrimination to mean that the police need to give Miranda warnings.

      Until then don’t require Miranda warnings.

      /sarc

  14. I’m sure I’m missing something here, but if you incorporate a jury right though P&I, what happens if Alf shoplifts?

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