Does the Constitution Require Unanimous Jury Verdicts in Criminal Cases?

In 1972, a 4-1-4 Supreme Court decision said "yes" in federal cases, no in state cases; the Supreme Court will now reconsider it.


The case is Ramos v. Louisiana, which the Court just this morning agreed to hear.

Here's the basic issue: In Apodaca v. Oregon (1972), the Supreme Court held that the Sixth Amendment requires unanimity for a verdict — but that the Fourteenth Amendment does not carry this rule over to the states, and that even 9–3 verdicts are constitutionally permissible. The Jury Trial Clause is thus the one Bill of Rights clause that is neither completely incorporated against the states via the Fourteenth Amendment, nor completely not incorporated. (Recall that the Bill of Rights originally applied only to the federal government, and has been applied to the states only through the Fourteenth Amendment.)

This partial incorporation is inconsistent both with prior Supreme Court practice and with McDonald v. City of Chicago (2010), the case that fully incorporated the Second Amendment. (McDonald calls an Apodaca-like approach "watered-down" incorporation.) In fact, in Apodaca, only one Justice — Justice Powell — concluded that the Jury Trial Clause required unanimity in federal trials but that this provision shouldn't be incorporated against the states. The other eight would have applied the Jury Trial Clause the same way both to federal and state trials, but four said (incorrectly, in my view) that it didn't require unanimity in either and four said it required unanimity in both. Justice Powell was the controlling vote, and that's how the partial incorporation result was reached.

Back in 2012, I filed a petition with the Court in a case raising the very same issue, Herrera v. Oregon; the Court denied then, and on some occasions since then, but I'm delighted that it has agreed to hear the matter now (whether because there are two new Justices on the Court, or for some other reason). Here's the argument in favor of the historical understanding that the Jury Trial Cause has indeed been understood as envisioning unanimous juries:

[* * *]

The right to a unanimous jury verdict was firmly established when the Bill of Rights was framed. Sir William Blackstone noted it as an essential feature of the right to trial by jury:

[T]he trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law…. [I]t is the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals. A constitution, that I may venture to affirm has, under providence, secured the just liberties of this nation for a long succession of ages.

2 Blackstone, Commentaries *378–79. Likewise, Blackstone listed the requirement of "unanimous suffrage" on a jury as part of the protection provided by the jury trial to "the liberties of England," and argued that "inroads upon this sacred bulwark of the nation [the jury trial] are fundamentally opposite to the spirit of our constitution." 4 id. *349–50. John Adams took the same view in America, writing that "it is the unanimity of the jury that preserves the rights of mankind." 1 John Adams, A Defence of the Constitutions of Government of the United States 376 (Philadelphia, William Cobbett 1797).

While the Bill of Rights was being ratified, Justice James Wilson — "who was instrumental in framing the Constitution and who served as one of the original Members of this Court," Victor v. Nebraska, 511 U.S. 1, 10 (1994) — stressed the unanimity requirement in his 1790–91 lectures: "To the conviction of a crime, the undoubting and the unanimous sentiment of the twelve jurors is of indispensable necessity." 2 James Wilson, Works of the Honourable James Wilson 350 (Philadelphia, Lorenzo Press 1804); see also 2 id. at 306, 311, 342, 351, 360 (further noting the unanimity requirement).

Justice Wilson's lectures were about law generally, not constitutional law as such. But he was discussing the meaning of "the trial by jury" in criminal cases. E.g., 2 id. at 344, 348. And it is the "right to a … trial, by an impartial jury" that the Sixth Amendment enshrines as a constitutional command (and that Article III, § 2, cl. 3, "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury," likewise enshrines). As George Hay, the United States Attorney in the Aaron Burr trial, put it, "The trial by jury is a technical phrase of the common law. By its insertion in the constitution, that part of the common law which prescribes the number, the unanimity of the jury and the right of challenge is adopted." United States v. Burr, 25 F. Cas. 55, 141 (C.C.D. Va. 1807).

St. George Tucker, author of the 1803 edition of Blackstone's Commentaries, likewise treated the Sixth Amendment as embodying the trial by jury described by Blackstone: His footnote on the Blackstone pages cited above (4 Blackstone *349–50, in 5 St. George Tucker, Blackstone's Commentaries 348–51 (Philadelphia, William Y. Birch & Abraham Small 1803)) noted that "the trial by jury" described in Blackstone's text was adopted in America, and secured by the Sixth Amendment. 5 Tucker, supra, at 348–49 n.2. Tucker cited the Sixth Amendment alongside its Virginia analog, which required "a speedy trial by an impartial jury of his vicinage without whose unanimous consent [the defendant] cannot be found guilty." Ibid. And he wrote that "without [the jurors'] unanimous verdict, or consent, no person can be condemned of any crime." 1 id. at App. 34.

Justice Joseph Story, in his great constitutional law treatise, likewise stressed that the constitutional "trial by jury" is the same "great privilege" that had been "part of that admirable common law." 3 Joseph Story, Commentaries on the Constitution of the United States § 1773, at 652 (Boston, Hilliard, Gray 1833). Justice Story endorsed the Blackstone articulation of the terms of that "great privilege": "I commend to the diligent perusal of every scholar, and every legislator, the noble eulogium of Mr. Justice Blackstone on the trial by jury." 3 id. at 654 n.1 (citing "3 Black. Comm. 379, 380, 381; 4 Black. Comm. 349, 350," which note the requirement of unanimity); see also 3 id. at 652 n.1 (citing "4 Black. Comm. 349"); 3 id. at 653 n.2 (citing "4 Black. Comm[.] 349, 350"). And in a different passage, Justice Story further confirmed that unanimity was understood as a constitutional requirement: His discussion of the constitutional standard for impeachment contrasted the two-thirds requirement for conviction in an impeachment trial with the rule in criminal trials, where "unanimity in the verdict of the jury is indispensable." 2 id. § 777, at 248.

Nathan Dane's influential 1823 General Abridgment and Digest of American Law similarly treated the Bill of Rights as providing that "the jury in criminal matters must be unanimous." 6 Nathan Dane, General Abridgment and Digest of American Law 226 (Boston, Cummings, Hilliard & Co. 1823). Another volume of the same work echoes this: "The value and excellency of [the criminal trial by jury] is fully declared in all our constitutions, and repeatedly in our laws. In virtue of it … the truth of every accusation must be established by the unanimous verdict of twelve [jurors] indifferently chosen." 7 id. 335. A Westlaw query for "dane abr!" "dane's abr!" & date(< 1/1/1900) reveals that in the 1800s the Abridgment was cited by this Court 38 times, and over 950 times by all the cases in the ALLCASES-OLD database.

Unanimity was also part of James Madison's understanding of the right to trial by jury. Madison's original draft of what would become the Sixth Amendment provided for trial "by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites," 1 Annals of Cong. 452 (1789).

The proposal was ultimately revised, with the "unanimity" language omitted, and there can be two alternative inferences from this change. One is "that Congress eliminated references to unanimity and to the other 'accustomed requisites' of the jury because those requisites were thought already to be implicit in the very concept of jury." Apodaca, 406 U.S. at 409–10 (plurality opinion). The other, which the Apodaca plurality endorsed, "is that the deletion was intended to have some substantive effect." Id. at 410.

But the plurality was mistaken; the historical evidence cited above shows that the unanimity requirement was indeed seen as "implicit in the very concept" of the Anglo-American criminal jury. Protecting the "trial by jury" safeguarded the essential incidents of the trial, such as the unanimity requirement, with no need for a detailed enumeration.

To be sure, the Jury Trial Clause did not constitutionalize all details of the common-law jury. As one early decision explained, "None would contend, at this day, in a trial of a writ of right, for the extraordinary [common-law] jury, called the grand assize, composed of four knights, 'girt with swords,' and who chose twelve other persons to be joined with them." Dowling v. State, 13 Miss. 664, 681–82 (1846) (holding that departures from common-law jury selection procedures may be constitutionally permissible under the Mississippi Constitution's jury trial provision). One could argue that even the choice of twelve as the number of jurors might be sufficiently arbitrary and accidental that some variation would be permitted, see Williams v. Florida, 399 U.S.86, 90 (1970), though petitioner takes no position on that question.

But, as Dowling put it, though "[t]he old common law has been insensibly changed and tempered to our situation and institutions," "the constitution must be construed to have adopted the generous privilege of the common law trial by jury in its essential elements." 13 Miss. at 682. Only those features that were "an accidental and not an absolute part of that institution, the mere superfluous forms and complicated proceedings of the English courts" are outside the constitutional guarantee. Ibid.

The unanimity requirement was indeed not just an "accidental," "superfluous" detail, but an "essential element[]" of the jury trial. It was a part of "our [English] constitution" that protected "the liberties of England" (Blackstone), and that was then accepted in America (as Story stressed). It "preserve[d] the rights of mankind" (Adams). It was "of indispensable necessity" (Wilson), "indispensable" to a criminal jury verdict (Story), part of the American design of "the several powers of government" (Tucker), and part of the trial by jury secured by "all our constitutions" (Dane).

And this view shared by these authorities is no accident, because there is nothing peripheral or arbitrary about the difference between a unanimous finding of guilt beyond a reasonable doubt and a finding of guilt entered over some jurors' dissent. As Justice Wilson put it, "To the conviction of a crime, the undoubting and the unanimoussentiment of the twelve jurors is of indispensable necessity," 2 Wilson, supra, at 350 (emphasis added). A nonunanimous jury conviction by definition means that some juror — in petitioners' case, two jurors — found that there was a reasonable doubt about the verdict.

Likewise, Justice Wilson wrote that "it would be difficult to suggest, for [the defendant's] security, any provision more efficacious than one, that nothing shall be suffered to operate against him without the unanimous consent of the delegated body." 2 id. at 316. The unanimity requirement is distinctive in this respect, because it is the best protection of its kind for the defendant. The twelve-member jury size, for instance, cannot be defended this way; one can always suggest a slightly larger jury as a theoretical protection for the defendant, yet the jury size has to be limited, so some arbitrary line must be drawn. But unanimity is both a feasible protection for defendants, and the most "efficacious" one for their "security."

[Footnote: The nonunanimous jury requirement is on balance less "efficacious" for the "security" of defendants, even though it allows 11-1 or 10-2 acquittals as well as 11-1 or 10-2 convictions. First, such splits in favor of acquittal are much rarer than such splits in favor of conviction. See, e.g., Calif. Admin. Office of the Courts, Final Report of the Blue Ribbon Commission on Jury System Improvement 72 (1996), (reporting, based on Los Angeles County data, that 31% of all hung juries were 11-1 or 10-2 for conviction, and only 11% were 11-1 or 10-2 for acquittal). Second, even under a unanimity rule, prosecutors would be much more likely to retry a case after a 11-1 or 10-2 jury split for conviction than after a similar split for acquittal. Making such a split in favor of acquitting into a legal acquittal would thus help defendants little — but making a similar split in favor of conviction into a legal conviction would disadvantage defendants more. [UPDATE: Stupid error in this footnote ("less likely" instead of "more likely") corrected in the post.]]

Similarly, Justice Wilson noted that jurors, who represent the same society whose officials are prosecuting the defendant, may tend to sympathize with the prosecution. In a criminal prosecution, "on one side [is] an individual — on the other, all the members of the society except himself — on one side, those who are to try — on the other, he who is to be tried." 2 id. at 315. This means that "the representatives [i.e., the jurors] are not indifferent, and, consequently, may not be impartial." Ibid.

Because of this, Justice Wilson explained, "the evidence, upon which a citizen is condemned, should be such as would govern the judgment of the whole society," ibid., which is to say evidence that all reasonable members of society should accept as dispositive. To provide some assurance of this, "we may require the unanimous suffrage of the deputed body [i.e., the jury] who try, as the necessary and proper evidence of that judgment." Ibid.

This reasoning cannot be applied directly to jury size, where ten or fourteen might work as a proxy for society's views about as well as twelve would. It cannot be applied to some other historical features of the jury. But the reasoning fully supports Justice Wilson's conclusion that there is no substitute for unanimity in determining whether the evidence is "such as would govern the judgment" of all reasonable members of society. Whenever a presumptively reasonable juror finds a reasonable doubt, there is a basis to think that "the judgment of the whole society" may not support conviction — many other reasonable members of society might share the minority juror's doubts.

Justice Wilson's arguments supporting the unanimity requirement are powerful. And the value of the unanimity requirement in ensuring the protection of minority groups, promoting deliberation among jurors, and making convictions more credible to the public further supports Justice Wilson's thinking. "Studies suggest that where unanimity is required, jurors evaluate evidence more thoroughly, spend more time deliberating and take more ballots. In contrast, where unanimity is not required juries tend to end deliberations once the minimum number for a quorum is reached." American Bar Ass'n, Principles for Juries and Jury Trials, with Commentary principle 4.B, at 24 (2005), [Footnote: See, e.g., Dennis J. Devine et al., Jury Decision Making: 45 Years of Empirical Research on Deliberating Groups, 7 Psychol. Pub. Pol'y & L. 622, 669 (2001) (discussing data that tends to show that the absence of a unanimity requirement leads to less deliberation); Kim Taylor-Thompson, Empty Votes in Jury Deliberations, 113 Harv. L. Rev. 1262, 1273 (2000) (same); id. at 1264, 1298–99 (noting that the absence of a unanimity requirement may lead to less consideration of the opinions of minority groups); Robert J. MacCoun & Tom R. Tyler, The Basis of Citizens' Perceptions of the Criminal Jury: Procedural Fairness, Accuracy, and Efficiency, 12 Law & Hum. Behav. 333, 337–38 & tbl.1 (1988) (noting that the public views unanimous juries as more accurate and fair).]

But whether the unanimity requirement is wise — or for that matter whether the jury trial requirement is wise — is not the main question here. The important point is that the unanimity requirement was understood to be a central, "indispensable" requirement of the right to trial by jury that the Framers knew and constitutionalized. Whatever flexibility the government may have in dispensing with historical features of the jury that are peripheral, accidental, or unimportant, such flexibility cannot extend to the essential requirement of unanimity.

[And as to why this unanimity requirement was accepted at the time the Fourteenth Amendment was written, and should thus be seen as incorporated against the states:]

The Fourteenth Amendment was said to secure (among other rights) the right to "trial by jury." Cong. Globe, 42d Cong., 1st Sess. app. 85 (1871) (statement of Rep. Bingham); Cong. Globe, 39th Cong., 1st Sess. 2765 (1866) (statement of Sen. Howard) ("right to be tried by an impartial jury of the vicinage"); Cong. Globe, 42d Cong., 2d Sess. 844 (1872) (statement of Sen. Sherman) ("right to be tried by an impartial jury"). And at the time the Fourteenth Amendment was ratified, "trial by jury" in criminal cases continued to be understood as requiring unanimity for conviction.

Michigan Supreme Court Justice Thomas Cooley, the "most famous" of the "late-19th-century legal scholar[s]" made this clear in his "massively popular" treatise. District of Columbia v. Heller, 128 S. Ct. 2783, 2811 (2008) (so labeling Justice Cooley and his treatise). "The jury must unanimously concur in the verdict." Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union 320 (Boston, Little, Brown & Co. 1868). And Justice Cooley joined Hill v. People, 16 Mich. 351, 358 (1868), which interpreted the Michigan Constitution's jury trial clause as implicitly guaranteeing a jury in which "unanimous agreement" is required for conviction.

Other leading commentators of that period took the same view: "[I]n a case in which the constitution guarantees a jury trial," a statute allowing "a verdict upon anything short of the unanimous consent of the twelve jurors" is "void." 1 Joel Prentiss Bishop, Commentaries on the Law of Criminal Procedure 532 (Boston, Little, Brown 1866). "That term ['jury'], when spoken of in connection with trial by jury in [the New York Constitution], imports a jury of twelve men whose verdict is to be unanimous. Such must be its acceptation to every one acquainted with the history of common law …." Theodore Sedgwick, Treatise on the Rules Which Govern the Interpretation and Application of Statutory and Constitutional Law 530 (New York, John S. Voorhies 1857).

"[T]he jury [must] be unanimous in rendering their verdict…. The principle once adopted has continued as an essential part of the jury trial …." John Norton Pomeroy, An Introduction to Municipal Law 78 (New York, D. Appleton & Co. 1864) (so stating even though the author disapproved of the unanimity requirement on policy grounds). "[A] trial by jury is understood to mean — generally — a trial by a jury of twelve men, impartially selected, and who must unanimously concur in the guilt of the accused before a legal conviction can be had." Joel Tiffany, A Treatise on Government, and Constitutional Law 366–67 (Albany, W.C. Little 1867). "[I]t is required that the jury shall be unanimous." John Proffatt, Treatise on Trial by Jury 119 (San Francisco, S. Whitney 1877). [Footnote: See Heller, 128 S. Ct. at 2789 (citing the Tiffany and Sedgwick treatises as authoritative); Blakely, 542 U.S. at 301–02 (likewise as to the Bishop treatise); Lewis v. United States, 518 U.S. 322, 334 (1996) (likewise as to the Proffatt treatise); Watt v. Alaska, 451 U.S. 259, 284 (1981) (likewise as to the Sedgwick treatise).]

These sources show that, when the Fourteenth Amendment was adopted, the right not to be convicted without a unanimous jury verdict was counted "among those fundamental rights necessary to our system of ordered liberty," McDonald, 130 S. Ct. at 3042 (plurality opinion), and as among the privileges or immunities of American citizenship, id. at 3088 (Thomas, J., concurring in the judgment).

NEXT: Scalia v. Epstein - 35 Years Later

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  1. Note that the same reasoning says that the trial by jury guarantee is now routinely violated, because jury nullification was unambiguously another component of that “trial by jury” at the time of the Bill of Right’s ratification.

    1. Not in the sense that nullification advocates want it.

      Clearly juries CAN nullify. But there’s no constitutional requirement that courts assist them in doing it or do nothing to discourage it.

      1. Seriously, you go back to any of the famous cases, such as the William Penn trial, that were trumpeted as triumphs of trial by jury, you’ll basically always find them to have been jury nullification cases. Penn was guilty as could be. The jury rejected the law, not the claim that he’d violated it.

        The judiciary has held that there’s no constitutional requirement that the courts do nothing to discourage nullification, or even refrain from lying to juries about their right to engage in it. But whether this should be the case is exactly what I was disputing.

        If things had gone differently, the judiciary might have chosen to neuter juries by permitting conviction by a simple majority, instead.

        1. That’s not what DE wrote at all. Yes, the jury can reject the law. But the Court need not assist them in doing so.

          1. Brett seems to be disputing that it is proper for the judiciary to discourage jury nullification, not merely choose not to abet it.

      2. Assist in what way? Allowing counsel to argue that as their defense is not assisting it in any meaningful sense. And there is a big difference between discouraging it an lying to the jury about its availability.

        1. I’m not sure I’d call declining to arrest and prosecute people on the sidewalk outside the courthouse trying to inform veniremen of the concept “assisting” either.

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        2. There is no “lie”. The law requires juries to obey instructions. Nullification advocates are the ones asking to lie to juries to tell them they can disobey instructions.

          1. The old-fashioned view was that the law told the jury what to do, and the judge’s instructions were evidence of what the law was.

            But if a judge told a jury that they could (say) convict someone for treason based on only one witness to the same overt act, the jury had an independent duty *not* to follow that instruction, but instead to insist on two witnesses as the constitution requires.

            1. We have appellate courts for that.

              1. That should be great consolation to Algernon Sidney.

                You admit (I presume) that the judge’s instructions in my hypothetical are wrong, yet you claim the jury has a legal duty to ignore the law if the judge tells them to do so.

                By all means invoke arguments of efficiency to justify that position, but don’t claim you’re upholding the rule of law or the integrity of the juror oath.

                1. And your argument will be great consolation to Nicole Brown Simpson and Ronald Goldman, and to Rodney King.

                  Your use of “ignore the law” is deliberately dishonest. A jury that follows instructions follows the law, because the law requires the jury to obey instructions. The law also requires appellate courts, NOT juries, to correct instructional errors.

                  And it has nothing to do with “efficiency”. It has to do with the fact that JURORS HAVE NO BUSINESS DECIDING WHAT THE LAW IS.

                  1. “Nicole Brown Simpson and Ronald Goldman”

                    You mean the case where the detective who found crucial evidence was caught lying to the jury about being a racist, and the prosecutor decided to prove to the jury that the glove belonged to OJ by forcing him to try it on? Sure, they needed to nullify.

                    And to top it all off, the prosecutor happened to fuck his case up over a word that rhymed with “acquit”.

                  2. “Your use of “ignore the law” is deliberately dishonest.”

                    You accepted the premise of a judge falsely claiming that a single witness was sufficient to convict of treason? Either a single witness is sufficient, or not. Which is it?

                    And you’re in Alice Through the Looking Glass territory when you say that the law has to follow a judge’s instruction to ignore the law, because that’s the law.

                    1. And since you’re such a devotee of honesty, answer this question honestly: If a judge tells the jury that, as a matter of law, two plus two equals five, is the jury required to obey?

          2. “There is no “lie”. The law requires juries to obey instructions.”

            As far as acquitting a defendant goes, the jury itself is the ultimate arbiter of what the law requires. Of course, they are not final because they are infallible, but infallible because they are final.

            Telling the jury that they are not permitted to acquit in certain circumstances is a lie.

            1. “They won’t be punished for acquitting” is not the same as “the law permits them to rule against the evidence and the law”.

              1. Who decides what the law permits? Judges certainly like to opine, but since the question of when jurors may acquit is not justiciable, it doesn’t matter what judges think. The people in a position to decide are the jurors themselves.

                1. They are in the position to decide in the same sense that if you find an unlocked house with no cameras and no police around, you are in a position to decide whether you will take the property within it.

                  It is literally none of your business as a juror whether the judge makes a legal error. The appellate courts are there for that purpose.

                  And MJB, if you ever try that, I hope the other jurors rat on you and you get held in contempt of court and thrown in jail. That might “educate” you as to whether you get to disregard the orders of the Court.

                  1. “They are in the position to decide in the same sense that if you find an unlocked house with no cameras and no police around, you are in a position to decide whether you will take the property within it.”

                    Wrong. They are in a position to decide in the sense that they have the legal power to acquit the defendant, and no other authority has the power to decide that the acquittal was ultra vires or otherwise improper, and no authority has the power to craft any other remedy if they don’t like the reason the jury acquitted.

                    That is, our system of justice legally vests the power to acquit solely in the jury. That is entirely different than the situation you describe.

            2. Well, I will tell you that as a juror, I will ignore, with prejudice, any instruction given by a judge I know to be wrong. Further, I certainly hope to have other jurors like me, sitting on every trial.

              Your position reduces the jury to a rubber stamp of whatever position the judge chooses to direct.

          3. When the instructions are wrong, there is no moral obligation to obey them.

            Depending on how wrong the instructions are, not only may there not be a legal obligation to obey them, there may in fact be a legal obligation to disobey them.

            1. But you can’t take an oath to follow instructions and then refuse to follow them. And you can’t lie during voir dire.

              1. No need to do either. Oaths are open to interpretation, same as any statute. I would never acquit a person who had committed a crime. That said, I might neglect to point out that legislation is axiomatically incapable of engendering criminality (though it has been known to engender criminal behavior).

                1. Try that sophistry in a real criminal trial. Please let me know the time and place your direct contempt hearing after you violate the oath. I will applaud your courage and you can acknowledge that I was right.

              2. re: “you can’t take an oath to follow instructions and then refuse to follow them”

                Sure you can – and in some cases, must. For example, I took an oath in the service to (among other things) “obey the orders of the officers appointed over me”. Despite that, I was not only allowed but required to disobey illegal orders. And, yes, that included the obligation to make my own determinations in the moment whether a superior’s order was right. As the Nuremberg Trials made very clear, “I was just following orders” is no defense.

                1. The reason is there is a longstanding law of war requiring disobedience of plainly illegal orders.

                  Which has nothing to do with the rules of jury service.

                  1. “The reason is there is a longstanding law of war requiring disobedience of plainly illegal orders.

                    Which has nothing to do with the rules of jury service.”

                    Judge: “Jury foreman, I order you to shoot the defendant.”

                    Foreman: “Uh, I’m pretty sure that that’s an illegal order, your honor.”

                    Judge: “So what, we’re not at war.”

                    1. Twelve- in that situation, you can go to the presiding judge of the Court or even seek a writ of mandamus.

                      That has nothing to do with this situation.

                      I am literally shocked at this whole discussion. A WHOLE BUNCH OF PEOPLE have believed the legal equivalent of Flat Earth or Alchemy. No, you seriously cannot do this crap. You can nullify, but only in the very subtle way and without any specific direction of the Court and counsel and only if the other jurors don’t rat you out for doing it.

                      If you don’t know this, you really should give up commenting on the legal system. Because you literally do not know a basic fact about the legal system.

                    2. “A WHOLE BUNCH OF PEOPLE have believed the legal equivalent of Flat Earth or Alchemy. …Because you literally do not know a basic fact about the legal system.”

                      This is not a fact. Whether or not jurors are behaving legally when they nullify is a quintessential matter of opinion. It is not testable. And although this view is not currently popular among judges, it was a mainstream, if minority, view for the first hundred years or so.

                    3. You better get out your smelling salts for the instruction which Chief Justice Jay gave to the jurors in a Supreme Court case you probably never heard of:

                      “It may not be amiss, here, Gentlemen, to remind you of the good old rule that on questions of fact, it is the province of the jury; on questions of law it is the province of the court to decide. But it must be observed that by the same law which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this and on every other occasion, however, we have no doubt you will pay that respect which is due to the opinion of the court: for, as on the one hand, it is presumed, that juries are the best judges of facts, it is, on the other hand, presumable that the court is the best judge of law. But still both objects are lawfully, within your power of decision.”


                      Of course, the Supreme Court later overruled that, but it’s not honest to make Chief Justice Jay out to be a member of the Flat Earth Society, or indeed to neglect to mention him.

                    4. But maybe I’ve been throwing out the names of a bunch of dead people whose names you don’t recognize, people who are probably like a hundred years old or something and are even older than the Beatles.

                      Algernon Sidney, John Jay…who are these guys? And just to be cruel, I’ll throw in the names of a couple more people of whom your are ignorant (probably Flat-Earthers) – Horace Gray and George Shiras, in a dissenting opinion:

                      “The judge, by instructing the jury that they were bound to accept the law as given to them by the court, denied their right to decide the law.”

              3. I take an oath to follow the constitution and it supersedes all others.

                1. Nope. You don’t get to do that. Any more than “sovereign citizens” can claim that they aren’t bound by courts.

                  1. This is from the Maryland Constitution (and it’s not the only state with a similar provision).

                    “In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.”

                    That’s pretty clear. And the legislative history is pretty clear as well, for those who are in to that kind of thing. Oh sure, courts have usurped the jury’s rightful role in Maryland, just as they’ve done pretty much everywhere else. But that doesn’t make it right.

                    1. “This is from the Maryland Constitution…”

                      Yup. The extent to which the jury’s right to acquit notwithstanding the evidence has been acknowledged has varied quite a bit throughout US history, and is currently at a low point. The judge in the William Penn had the jurors locked up because they wouldn’t deliver the verdict they wanted. Judges nowadays are sometimes allowed to take fairly harsh steps to interfere in the jury’s deliberations, but historically instructions to the jury that they are the judges of the law as well as the facts were not uncommon.

                      This is far from as basic fact about the legal system, as Dilan claims. It has been an ongoing dispute through US history.

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    2. Truth. At the very least we should stop judges lying in jury instructions when they say if you find the elements proven beyond a reasonable doubt you MUST convict. No you mustn’t. There is nothing they can do to you if you say this law is absurd or that it shouldn’t apply to this situation.

      But I’m also someone who thinks that is a perfectly legitimate defense and that defense counsel should be aloud to outright argue that as a/the reason for acquittal.

      1. Indeed, defenses should even be allowed to say it aloud, and proud!

        1. I noticed it after I posted. We really need an edit function.

      2. Agreed. If your counsel can’t present your defense to the jury, you haven’t had the jury trial that you’re guaranteed. If the prosecution doesn’t like that defense, it’s up to them to refute it.

  2. Perhaps the conservatives will use this as an opportunity to revive the Privileges and Immunities Clause.

    1. We might be up to two Justices who want to do that, three tops.

    2. P& I is vastly more correct –

      The due process clause has been used to create non fundamental rights which in effect have circumvented the BoR.

      Thomas has a very analysis in his concurring McDonald opinion on the problems that the due process has caused.

      You might try to read and understand it.

      1. “The due process clause has been used to create non fundamental rights which in effect have circumvented the BoR.”

        It circumvents the Bill of Rights to have more rights? Elucidate…

        1. The Constitution created a dual sovereign structure. The states were left with every power not specifically granted by the Constitution to the federal government.
          It is not the business of the people of, say, Connecticut, or of the federal government, if the people of Arizona want to ban abortion or legalize prostitution.
          This isn’t rocket science, and you’re sort of a condescending dick to act as if anyone who disagrees with you is some sort of reprobate.

          1. ” The states were left with every power not specifically granted by the Constitution to the federal government.”

            No, they weren’t.

            “This isn’t rocket science”

            Rocket science isn’t complicated. Newton worked it out almost 400 years ago.

            “you’re sort of a condescending dick to act as if[…] ”

            You poor little snowflake. (if you think you were condescended to before…)

            1. Every power not specifically granted to the federal government, or forbidden to the states, anyway, is potentially a state power, depending on what the state constitution says.

              Just because it’s available doesn’t mean they have to take it up.

        2. Pollock – A little better background in constitutional law and the understanding of how the due process clause has been used would have enabled you to grasp the statement.

          However – I will give you the benefit – and provide you with a brief background. As noted by Stevens in his Heller dissent, various BoR’s have been subdivided over the years into “fundamental” and “non-fundamental ” rights using various interpretations of the due process clause.

          1. The background I have was good enough to pass a bar exam, Joe.

            If the statement has to be explained to me, then it wasn’t drafted very well.

            That goes double for your “help”, which didn’t answer the question, or really even try.

            1. “The background I have was good enough to pass a bar exam, Joe.”

              Yet the comment you made indicates that you were not familiar with the Thomas’ concurring opinion in Mcdonald. Since you are an attorney, I would have expected you to be familiar with the case I cited in my comment.

              1. Read more carefully, Joe. I’m not an attorney.

                And you STILL don’t feel like defending the actual language you chose to use.

            2. “The background I have was good enough to pass a bar exam, Joe.”

              That sounds just like engineers that never took the Professional Engineers test. But, but, but, my background was good enough to pass…

              1. LOL

                “I coulda been a contender…”

              2. “That sounds just like engineers that never took the Professional Engineers test”

                No, that’s what it would sound like if I hadn’t taken and passed a bar exam.

                Specifically, this one.
       examresults_feb2011.htm (Take out the space to make it a URL again)

      2. I think P&I is the right place for substantive incorporation (I think the Ninth is where the recognition of unenumerated rights comes from), but you are fooling yourself if you think making it under Due Process is the problem. Any “creation” of rights under SDP would just be done under P&I instead. The clause used isn’t the issue.

        1. Of course it is: Everybody has a right to due process, while Privileges and Immunities are reserved for citizens. That’s a pretty significant difference, if you’re here in the US, and not a citizen.

          Further, because extending all the rights of citizenship to non-citizens was too absurd to contemplate, it led the judiciary to elaborate a system of extra-constitutional exceptions for the protection of rights, which could then be leveraged to reduce the application of those rights even for citizens.

          1. I don’t see any way the Supreme Court, even the conservative branch, would recognize the P&I clause to only apply to citizens. For starters, under the 14th amendment, corporations are not constitutional citizens. I also don’t see them saying that a legal permanent resident doesn’t get the benefit of 6th amendment protections. We can debate whether that is the right answer until the cows come home, but it is purely academic. It has zero chance of enforced only to citizens even from the vast majority of conservative justices.

            1. Literally, the relevant text of the 14th amendment:

              “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law;”

              Only citizens get P&I, “people” get due process.

              If your point is that the Supreme court is perfectly capable of ignoring the text of the Constitution if they don’t like what it says, I wouldn’t argue with that, but if they did want to enforce it as written, the words are right there.

              1. “Only citizens get P&I, “people” get due process.”

                If it’s a federal court, though, the 5th commands that all people get due process. Since comtrolling immigration is a federal power, not a state one, the state has no power to adjudicate whether a person is a citizen or not. So, although the text is different, the result is not.

                1. Controlling naturalization is a federal power. Controlling immigration is not…

                2. 1. The State(s) can check on whether a person is a citizen of the USA or not; and in the case of voting, the State(s) are required by the Constitution to ensure only citizens vote in federal elections.

                  2. The State(s) can determine who shall/shall not be a citizen (resident) of said State for the purposes of P&I vs. Due Process, etc. Not to mention that all people currently in a State, are subject to said State’s laws.

              2. It’s actually not as clear as you say. “Of the citizens of the United States” is a prepositional phrase which is frequently used to modify something, in this case the phrase “privileges or immunities.”

                It can very plausibly be saying saying the State can’t abridge something. But what is that something? That something is the “privileges and immunities of the citizens of the United States.” That is the phrase is to describe WHAT cannot abridged not WHO it applies to.

                It certainly can also be read as you do. That may even be the most natural reading. But even originalists are vocally not strict textualists. With two plausible readings you have to look at the time to see which it was understood to mean.

              3. As I have explained, equal protection then extends the same right to noncitizens.

                1. Not as originally understood, it didn’t. Per current doctrine, sure. But I thought we were discussing whether current doctrine is right or wrong, and might be in need of change.

                  1. EPC says any person, not citizen, so your own P&I logic would seem to apply.

                    1. Yep, Sarcastro’s right. The original understanding of the EPC certainly was to extend rights equally to noncitizens.

  3. Interesting. IIUC Oregon is currently the only state to allow non-unanimous jury verdicts. What a bunch of goobers.

    1. Clearly unanimity should never be required. What would have happened if one or two jurors had been fooled into thinking that our nation’s leading criminal “satirist” intended to “send a message,” rather than “damage a reputation,” with his inappropriate “parodies”? That was the crucial, criminal-libel based (and hence, it appears, favored by Eugene) line drawn by the Second Circuit Court of Appeals. See the documentation at:

      True, in the actual trial all the prosecutors needed to show was an intent to cause or obtain “any harm or benefit,” and it’s very unfortunate that the appellate courts thought they had to start drawing finer lines (although they did nonetheless find an excellent legal pretext to affirm the verdict); but what would have happened if the trial had been held under that narrower standard, and just one juror hadn’t been convinced? Surely the result would have been mayhem in our great institutions of higher learning, which is something that simply cannot be tolerated. It follows that unanimity is never a good policy, and should be replaced by much more lenient requirements.

      1. P.s. incidentally, Eugene has very wisely and cautiously abstained from any discussion of the “line” drawn by the Second Circuit between intending to “convey an idea” or a message and seeking to “damage a reputation.” Clearly some ideas are more legitimate than others, and outrageous speech that damages a reputation shouldn’t qualify as an idea to begin with, but figuring out how this works does seem to call for some additional criteria and interpretation, so it’s really a problem that it’s best not to mention. If we address it openly, our project of getting libel recriminalized throughout this great nation could end up being confronted by some unwanted difficulties.

  4. This is a Louisiana case and Louisiana recently voted overwhelmingly to change its rule and require unanimous jury verdicts leaving only Oregon allowing split verdicts. There was a move in Oregon to change their Constitution, I’m not sure where that stands now.

    1. Oregon allows voters to skip over the legislature and enact laws and constitutional amendments directly. Oregonians, generally, don’t seem inclined to change this aspect of Oregon law.

    2. Oregon. And SCOTUS too has split decisions all the time.

  5. I read as far as the [MORE] tag. What I didn’t see was anything in the Constitution that said anything about jury unanimity. Did the actual text that requires (or suggests) unanimity appear in the rest of the article, or did it get skipped because there is no Constitutional text to cite for this proposition?

    1. The Constitution just calls for a jury trial. But that definitely requires some level of jury consensus- everyone agrees a rule that if you have one juror who votes to convict, you go to prison would be wrong.

      So the question is whether historical practice and fairness require it be set at 12-0.

      1. It’s Godel completeness striking again in the legal realm; Even if the Constitution DID “partake of the prolixity of a legal code”, it couldn’t internally define ALL the terms it used.

        1. It doesn’t need a definition of “unanimity” because the word doesn’t appear in the text.

          Are appeals court or Supreme Court findings valid if not unanimous?

          1. I was thinking of the definition of “trial by jury”.

            “Are appeals court or Supreme Court findings valid if not unanimous?”

            They can free you if a jury convicted you, but if a jury acquitted you, they can’t do squat.

            1. Been seeing a lot of Supreme Court cases about acquitted people, have you?

              1. No, because most of the time it would be moot. Some potential for that to happen in the case of civil forfeiture, though.

                1. Your working theory is that people who won their civil forfeiture cases are going to see the Supreme Court overturning their victories?

          2. No, they aren’t, but they don’t serve the same function or have the same history as juries.

      2. “everyone agrees a rule that if you have one juror who votes to convict, you go to prison would be wrong.”

        How about when you lose the bench trial 0-1?

        1. Everyone is free to waive their rights. Can’t have a bench trial unless YOU choose to.

          1. Go to any traffic court in the country. Point to where the jury sits.

      3. “So the question is whether historical practice and fairness require it be set at 12-0.”

        I thought the question was whether the Constitution requires unanimous juries or not.

        Fairness requires that 1-11 verdicts be counted as acquittals if 11-1 verdicts are convictions.

    2. Try reading the entire article. The author went into great detail citing many contemporary sources that confirm that unanimity was considered so obvious that including the word would have been superfluous…

  6. They ought to make it an 11-1 requirement for state and federal trials, there is always some asshole just 5rying to be difficult.

    1. Call it the “Kirkland Corollary”.

      1. Stale-thinking bigots whine about me. Trump tweets about John McCain. Whiny, low-character right-wingers are among my favorite faux libertarians . . . and are. deservedly, walking corpses in the American culture war.

        Carry on, clingers. So far as the ‘guns, God, and gays’ agenda could carry anyone in modern America, that is.

    2. That 1 juror could be the one that is trying to nullify.

      1. Yes, and it may not be fair to call that person an “asshole”, but they’re not doing their constitutional duty either.

      2. One juror should not be the basis of nullification. Reasonable doubt, yes.

        But nullification is bigger than simply deciding if the defendant is guilty/not, it is up-ending the law itself, and should not be done so lightly. Now since the jury is a closed process, it is possible it is never known where the 11-1 split was just doubt, simply a dick wishing to stick it to the man facts be damned, or someone having carefully discerned that the law is an ass.

        I suspect that split decision is often a reflection of the facts not being irrefutable, rather than the law needing nullification. Lots of crimes have little argument against their being a crime…. robbery, rape, murder, etc.

    3. If there were always some asshole just trying to be difficult, wouldn’t that imply that nobody who went for a jury trial would be convicted? Instead it’s about 90% convictions.

      1. The prosecutors plea-bargain out every case that isn’t slam-dunk. Plus sometimes the asshole can be persuaded to come around.

        1. Sorry for the double post, I just realized the OP might have been joking.

        2. It’s about 90% plea bargains, and for the cases that go to trial, it’s about 90% convictions in the jury trials.

          Over all, IOW, it’s a 99% conviction rate, which ought to scare anybody spitless, because there’s no freaking way the cops make that few mistakes.

          1. The plea bargain is used as a tool to scam defendants out of their jury trial. Most will take 2-3 years, as opposed to rolling the dice with the jury, and get 20+years. It’s a form of extortion.

          2. The plea bargain is a form of extortion designed to con a defendant out of his jury trial. “Here, take 2 years in the pen, or roll your dice with the jury, and possibly get 20 years.”

            1. Sorry, I see that comments get delayed somehow. I thought the squirrels had disposed of the first one.

          3. “Over all, IOW, it’s a 99% conviction rate, which ought to scare anybody spitless, because there’s no freaking way the cops make that few mistakes.”

            Another way of interpreting this is that the system works, because cases that aren’t going to be convictions get dropped or dismissed before going to a verdict.

            1. “Another way of interpreting this is that the system works,”

              Some cases are pleas for time served, which means that a defendant who pleas guilty (and sometimes had to admit guilt) serves less time than he would if he went to trial and acquitted. I’m not sure how you can call that “working” by any stretch of the imagination.

            2. My, aren’t you the optimist.

            3. Another way of interpreting this is that the system works, because cases that aren’t going to be convictions get dropped or dismissed before going to a verdict.

              And do you even remotely believe this fantasy?

              By the way, if justice were a consideration in our legal system, most convictions would never have made it to trial.

              1. “And do you even remotely believe this fantasy?”

                As opposed to your exhaustive list of evidence to support your counter-claim? Hmmm.

  7. Hopefully, they’ll get it right this time, and then we can move on to overturning Baldwin V. New York, which held that states don’t need to provide a jury trial in criminal cases at all, so long as the sentence will be under 6 months. Bring that back, and watch states cut billions in incarceration costs.

    1. It’s actually a lot worse than that: So long as the sentence for each charge is under 6 months.

      A hundred counts at 6 months each can put you in prison for half a century without that jury trial.


      The Supreme court doesn’t want to admit that you have the right to trial by jury in all “criminal” cases, not in all “serious” criminal cases.

  8. > Second, even under a unanimity rule, prosecutors would be much less likely to retry a case after a 11-1 or 10-2 jury split for conviction than after a similar split for acquittal.

    I think this is suppose to be the other way around.

  9. As long as we’re incporporating just about everything –

    Maybe it’s time to make the states swallow the whole bitter pill and force them to use grand juries for “capital or otherwise infamous” crimes.

    1. The problem is that, as far as getting respect among the intelligentsia, grand juries make Rodney Dangerfield look like Jacques Derrida.

      1. I like the creativity of the simile, I’m just not quite sure what it means.

        1. Grand juries get less respect than Dangerfield.

          1. Yes, but surely that’s true generally, not just “among the intelligentsia”?

            1. Some people respect grand juries for the wrong reasons, not because they’re a shield for suspects, but because as abused by prosecutors they’re a sword against suspects. Not to mention an excellent scapegoat when a prosecutor is saddled with a dog of a case but faces public demands to do something.

              Ideally, grand jurors should get wise to prosecutors manipulating them, then grand juries will be suddenly unpopular among prosecutors, too.

          2. There’s an interesting Oregon case, for which I don’t (unfortunately) have the direct citation. It went like this:

            The grand jury returned a “no true bill”. But the prosecutor went ahead and offered a plea deal, and the defense attorney didn’t notice, either, and advised her client to take the plea deal. The defendant was convicted and served his sentence before anyone (re)discovered that the grand jury had declined to charge the defendant.
            What literally happened was the release of the defendant was covered in the local media, and one of the grand jurors called to ask why the guy had been in jail, since the grand jury voted not to charge him.
            The defense lawyer (properly) informed the fellow that he had a pretty good malpractice case if he wanted to pursue it, but the prosecutor had a different problem. The county would owe the guy restitution for the time he wrongfully spent in jail and the prosecutor didn’t want to have it cut from his budget. So… he had the cops rip into the guy’s life, hoping to prove that the defendant would have been convicted of something else. They didn’t find anything, and defendant sued for abuse of process on top of the improper imprisonment, and, (I believe) won on both.

  10. I just want to take a moment to give a like to the historical reasoning in the OP. When you want to cite something from another time or another place with regard to a constitutional-founders-related argument, the right way to do it is to do what EV does here. He shows the founders themselves citing it. Historians think that’s a crucial step to establish relevance in context.

    1. Where did you hide the real Stephen Lathrop?

  11. If unanimous guilty verdicts are not required, then jury nullification is for all intents and purposes impossible. If jury nullification is impossible, then there is no reason to have juries at all (the notion that jurors are better judges of fact rather than justice, when compared to professional litigators, is absurd in the extreme).

    1. I think you may have just answered your own question…

    2. Nullification should not be some lone wolf or thinking themselves above the law. If the law is unjust, then such should be evident to several, or most reasonable jurors. And whether it is one, two, or three dissenters, it gets a hung jury.
      Want to nullify, and set the defendant free without risk of another trial, you need 12-0 or 11-1 in Oregon favoring acquittal. One or two stubborn folks can at best force a retrial.

      Reasonable doubt as to whether the facts conform to violation of the law might require a higher degree of certainty.
      Maybe 12-0 to convict, but 2-10 to acquit so that one or two jurors cannot force the defendant to start from scratch in the time and cost of defense.

  12. Given that present-day England is perfectly fine with 10-2 verdicts, I’m inclined to say that Blackstone might have been exaggerating a bit.

    1. England, where they arrest you for offensive cat videos?

      1. Or was it a dog video?

      2. (Dog, not cat)

        (UK as a whole, not England)

      3. That story would be an excellent counter to anyone claiming that 18th century England was strongly committed to free speech as it is understood in the US. They can’t have been that committed, given where they ended up 200 years later.

        1. That’s just where the lack of real constitutional protections get you. Indeed, would the US be such a bulwark for free speech rights if not for the First Amendment?

          (Of course, in the Cyber Age, the public square is no longer under government control, and thus Free Speech no longer protectable against it, but that’s a different problem.)

          1. “That’s just where the lack of real constitutional protections get you. Indeed, would the US be such a bulwark for free speech rights if not for the First Amendment?”

            It perhaps should be noted that the Oregon Constitution has stronger protection for free speech than does the U.S. Constitution.

  13. Courts martial, federal trials, don’t require a unanimous vote.

    And that trial by peers is a little shaky there. An enlisted can request enlisted members, who must then be at least 1/3 of the jurors. Generally recognized as a silly thing to do, unless very obviously being railrroaded.

    1. Perhaps courts martial *should* require a unanimous vote, at least where imposing criminal sanctions is concerned.

    2. Yeah, what does “peers” mean? Does it mean that Martha Stewart gets only high-income jurors, and a street dealer gets only urbanites on the dole?

  14. A jury of your peers sure sounds like it needs to be unanimous to me. The lying piece of garbage D/A’s would love not having to get unanimous verdicts.

  15. An intriguing issue. It suggests a follow-up question: Under what circumstances can a judge remove and replace a holdout juror during deliberations? If his making a nullification argument is sufficient reason, then the defendant has been deprived (I hope actionably) of his right to a unanimous verdict.

  16. Is there a requirement on the jury size? Could OR adopt a 6 or even 4 (3? 2?) person jury?

    1. Oregon allows 6 person juries for some trials.

      1. Right, and they currently allow non-unanimity. But if the latter goes, why should the former stay?

  17. I would like a unanimous opinion in SCOTUS cases, or at least a “super-majority”. Who really wins in a 5-4 opinion?

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