No Unanimous Opinion on Non-Unanimous Jury Verdicts

November 7, 2008 | | Comments Off on No Unanimous Opinion on Non-Unanimous Jury Verdicts

Among the cases that the Supreme Court declined to hear last month was Lee v. Louisiana.  In that case, Derick Todd Lee was convicted of second degree murder.  On its face, there is nothing odd about the case.  However, what is uncommon is that Lee was convicted by a non-unanimous jury verdict.  Louisiana and Oregon are the only two states that still allow individuals to be convicted of felonies by a majority of jurors.  They do not require unanimity.  The Oregon Constitution allows for non-unanimous guilty verdicts to be returned when 10 of 12 jurors agree on guilt, except in cases of first degree murder, where unanimity is required.  Louisiana allows guilty verdicts on a jury decision of 9 to 3, except in capital cases, where it requires unanimity.

In 1972, the Supreme Court upheld both the Oregon (Apodaca v. Oregon, 406 U.S. 404) and the Louisiana (Johnson v. Louisiana, 406 U.S. 356) provisions for non-unanimous jury verdicts.  Both cases resulted in a 5-4 decision that non-unanimous jury verdicts did not violate the Due Process Clause or the 6th amendment right to a jury trial.  In a concurring opinion, Justice Powell asserted that a unanimous verdict was constitutionally required in federal criminal trials because, at the time of the Bill of Rights, the prevailing notion was that jury verdicts must be unanimous.

One of the most compelling arguments for non-unanimous jury verdicts is a judicial efficiency argument.  Allowing such verdicts would reduce the number of mistrials due to hung juries and increase the amount of guilty verdicts and acquittals.  Such a result would avoid the substantial cost of retrying cases.  Current estimates put the number of mistrials in criminal cases in a given year at between five and twelve percent.  It is estimated that a non-unanimous system would reduce the instances of hung juries by almost half.

It is an interesting argument, but one which the Court has declined to hear further.  However, although the Court declined to hear Lee v. Louisiana, it does not seem as though the rest of the states are in any particular hurry to adopt the policies of Louisiana and Oregon.  So, while constitutional, non-unanimous jury verdicts in criminal cases have still been met with staunch resistance.  It seems counterintuitive to say that the prosecution proved its case beyond a reasonable doubt when three of the jurors do indeed find reasonable doubt.  When the Government is seeking to imprison a defendant for a substantial period of time for such serious crimes, it would seem to be appropriate to hold them to the high standard of unanimous verdicts.

For a brief history of unanimous jury verdicts, see Michael H. Glasser, “Letting the Supermajority Rule: Nonunanimous Jury Verdicts in Criminal Trials,” Florida State University Law Review.

Photo courtesy of Flickr user bhampton1963.

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