Apodaca v. Oregon

It is ironic that this case concerning unanimous jury decisions should itself have been decided by a far from unanimous Court. On the one side was White's faction, which ultimately won; on the other side were Justices Stewart, Brennan, Marshall, and Douglas. Justice Powell's decision was the deciding vote.

The dissenters held, in Justice Stewart's words, that "Until today, it has been universally understood that a unanimous verdict is an essential part of a Sixth Amendment jury trial." Citing an array of cases, the dissenting justices established the necessity for a unanimous jury as a key element in a fair trial. They followed what might be considered a common-sense line of reasoning, based on the idea that lifting the unanimity requirement makes it easier for a jury to convict a defendant-- and thus increases the chance that an innocent person may be convicted.

Justice Powell agreed with parts of both arguments. He sided with Stewart's group in holding that the Sixth Amendment required federal juries to be unanimous. But Apodaca's case concerned a state court, and thus the Fourteenth Amendment appeared to be a more significant element of the argument. And on that issue, Powell agreed with White's group, that the Fourteenth Amendment did not prevent states from allowing nonunanimous juries. Like White, he did not believe that permitting a jury majority of 11-1 or 10-2 necessarily meant that ethnic minorities' constitutional rights would be violated.

At the time, Apodaca v. Oregon raised fears among some, suggesting a future in which states would be able to alter their standards to permit juries with 9-3 or even smaller margins to convict defendants. But twenty-five years after Apodaca, few states had adopted the nonunanimity rule, and the Supreme Court itself had further questioned the idea in Ballew v. Georgia (1978).