Jury: Legal Aspects - Unanimity

In Apodaca v. Oregon, 406 U.S. 404 (1972), four Supreme Court justices concluded that conviction by a vote of 10-to-2 did not violate the Sixth Amendment. Four justices dissented, arguing that the amendment requires juror unanimity. The remaining justice, Justice Powell, agreed with the dissenters' construction of the Sixth Amendment but rejected the view that "all of the elements of jury trial within the meaning of the Sixth Amendment are necessarily embodied in or incorporated into the Due Process Clause of the Fourteenth." As a result, nonunanimous verdicts are permissible in state but not federal courts. In a companion case, the Court upheld a state-court conviction by a 9-to-3 vote ( Johnson v. Louisiana, 406 U.S. 356 (1972)). Later, the Court held that conviction by a vote of 5-to-1 was unconstitutional; convictions by six-person juries must be unanimous (Burch v. Louisiana, 441 U.S. 130 (1979)).

Defendants have argued that nonunanimous verdicts violate not only the right to jury trial but also the right not to be convicted except upon proof of guilt beyond a reasonable doubt. The Court rejected this argument in Johnson, holding that the reasonable doubt requirement demands only that each juror be instructed to acquit unless this requirement has been satisfied. Nevertheless, both the historic requirement of twelve jurors and the historic requirement of unanimity have promoted confidence in the accuracy of criminal convictions. The unanimity requirement also has encouraged jurors to listen to and attempt to persuade one another; it prevents the majority from outvoting dissenters without considering their views. In Scotland, where juries of fifteen may convict or acquit by a simple majority vote, divided juries deliberate only if they choose. In England, 10-to-2 verdicts are permitted after the jury has deliberated two hours (Pizzi).

At the time of the Supreme Court's decisions in Apodaca and Johnson, Oregon and Louisiana were the only states permitting nonunanimous verdicts in felony cases. These states remained alone twenty-nine years later. Nevertheless, prosecutors in several other states were actively supporting legislation to allow nonunanimous verdicts. One of their concerns was that a minority of jurors might "nullify" the law by blocking conviction when proof of guilt was clear. The prosecutors may have been especially concerned that minority-race jurors would block the conviction of minority-race defendants. A later section of this entry will discuss the issues raised by jury nullification.