Ten Angry Men: Unanimous Jury Verdicts in Criminal Trials and Incorporation after McDonald

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I. INTRODUCTION

Any American who has watched a legal drama on television or in film would assume that a criminal conviction can occur only if a jury of twelve persons votes unanimously. (1) But, as with most assumptions about the legal world, this one is incorrect; it is wholly constitutional for an accused to be convicted of a crime without twelve guilty votes. (2) In criminal trials, the Constitution requires neither that the jury be comprised of twelve persons (3) nor that the vote be unanimous. (4)

Williams v. Florida (upholding the constitutionality of six-person juries) and Apodaca v. Oregon (upholding the constitutionality of non-unanimous majority verdicts in criminal trials) can be easily reconciled with one another, as they both concern common-law requirements for criminal trials upon which the Constitution is silent. But the application of these two holdings is far more problematic. Williams, which considered the constitutionality of Florida's six-person criminal juries, held that neither federal nor state trials need to utilize a twelve-person jury. (5) However, Apodaca upheld the constitutionality of non-unanimous majority verdicts only in state criminal trials. (6) In federal criminal trials, the Supreme Court has found that the verdict must be unanimous. (7) Apodaca's holding, the product of an odd split among the Justices, is the reason why there are at present two jurisdictions in the United States where a defendant can be found guilty of a crime by just ten out of twelve votes: the states of Oregon and Louisiana. (8)

Apodaca remains good law, and that fact is problematic for three reasons. The first and timeliest reason is that the Court set forth an incorporation standard in McDonald v. City of Chicago that directly undermines the current two-track approach to unanimity in criminal trials. (9) Secondly, allowing majority verdicts in criminal trials seriously weakens the beyond-a-reasonable-doubt standard. (10) And finally, empirical research has since disproven the assumptions about jury behavior upon which the plurality in Apodaca relied. (11)

This is not a purely academic debate. The Apodaca decision not only affects Louisiana and Oregon; similar legislation has been proposed in other states that would allow for majority verdicts in criminal trials in attempts to be "tough on crime." (12) State representatives from both California and Colorado have introduced bills in their respective legislatures that would allow for majority verdicts in criminal cases. (13) More recently, in 2003, the New York State Assembly considered a majority-verdict proposal couched as an anti-crime initiative aiming to "produce more convictions and put more criminals behind bars." (14) The bill's sponsors claimed that the unanimity requirement resulted in a "higher crime rate" and "disrespect for the law." (15) As of yet, these proposals have failed and no state (besides Oregon and Louisiana) has adopted a majority-verdict provision for criminal trials. (16) But in some states majority-verdict proposals are introduced fairly frequently, as there is obvious and powerful political capital to be gained from increasing conviction rates, regardless of the means by which one does so. (17)

Defendants in Oregon and Louisiana continue to object to their state's practices. Scott Bowen was accused in Oregon of multiple felony sex offenses, including first-degree rape, alleged to have occurred between 1991 and 2000. (18) During his trial, he requested a jury instruction that the verdict shall be unanimous. (19) His request was denied and he was convicted by a vote of ten to two; "[i]n forty-eight states, the jurors would have been required to continue deliberating toward consensus. ... But because this case arose in Oregon, petitioner stands convicted." (20) The Supreme Court denied cert in 2009. (21)

More recently, Alonso Herrera was convicted on a ten-to-two vote of unauthorized use of a vehicle. …