The Supreme Court Allows Majority Verdicts in State Trials

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The Supreme Court Allows Majority Verdicts in State Trials

Jeffrey Abramson

For centuries it was taken for granted that the unanimous verdict was an integral part of the trial by jury, a necessary corollary to proving a case beyond any reasonable doubt. However, this requirement is not the law of the land. Since 1972 the Supreme Court has allowed state, though not federal, juries to convict defendants by a majority vote. That year, as Jeffrey Abramson, a professor of politics at Brandeis University and a former assistant district attorney, explains, the Court broke its long silence on the issue and handed down two decisions allowing for majority verdicts. In the first, Apodaca v. Oregon, the defendants claimed that allowing a jury to convict over the objections of minority jurors violated their right to be tried by a true cross-section of the community. In the second, Johnson v. Louisiana, the defendant claimed that the majority verdict violated the prosecution's obligation to prove its case beyond a reasonable doubt. As Abramson shows, these arguments impressed such legendary justices as William O. Douglas and Thurgood Marshall. Nevertheless, by 5-4 decisions, the Court ruled against the defendants, and states are now clearly allowed to permit majority verdicts and thus minimize the chance of a hung jury.


Jeffrey Abramson, We, the Jury: The Jury System and the Ideal of Democracy. New York: BasicBooks, 1994. Copyright © 1994 by BasicBooks. Reproduced by permission of HarperCollins Publishers, Inc.

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For over six hundred years, the unanimous verdict has stood as a distinctive and defining feature of jury trials. The first recorded instance of a unanimous verdict occurred in 1367, when an English Court refused to accept an 11-1 guilty vote after the lone holdout stated he would rather die in prison than consent to convict. Steadily afterward, the requirement of unanimity took hold. As legal historians Frederick Pollock and Frederic Maitland point out, "From the moment when our records begin, we seem to see a strong desire for unanimity. In a thousand cases the jury is put before us as speaking with a single voice, while any traces of dissent . . . confessed by some only of the jurors are very rare."

Some American colonies briefly authorized majority verdicts in the seventeenth century, apparently because of unfamiliarity with common-law procedures. But by the eighteenth century, it was agreed that verdicts had to be unanimous. Indeed, prior to 1972, no case explicitly disputing the unanimity requirement in criminal cases ever came before the Supreme Court. Incidental references to the "obvious" requirement that criminal jury verdicts be unanimous date to the late 1800s. As the Court noted in 1898, "The wise men who framed the Constitution of the United States and the people who approved it were of [the] opinion that life and liberty, when involved in criminal prosecutions, would not be adequately secured except through the unanimous verdict of twelve jurors." In 1897, a case challenging the necessity of unanimous verdicts in civil cases reached the Court. But the Court readily dismissed the challenge, saying that "no authorities are needed to sustain [the] proposition" that "unanimity was one of the peculiar and essential features of trial by jury at the common law."

Unquestioned acceptance of the concept of unanimous verdict abruptly came to an end, for the criminal jury, in the late 1960s and early 1970s. In 1967, England authorized criminal juries to return verdicts by a margin as low as 10 to 2, so long as the jury deliberated at least two hours. In 1972, in cases from Oregon and Louisiana, the Supreme Court ruled that the Constitution permits state, though not federal, criminal juries to split by a 10-2 or 9-3 margin in noncapital cases. . . .

The 1972 Decisions: Authorizing Nonunanimous Verdicts

Advocates of the unanimous verdict rule presented the Court with two constitutional reasons to mandate unanimity in state criminal jury trials. In Apodaca v. Oregon, the defendants argued that unanimity was essential to enforcement of their Sixth Amendment right to be tried before cross-sectional juries. Only the unanimous verdict rule could guarantee effective representation to minority views; anything less empowered majorities simply to outvote minorities.

In Johnson v. Louisiana, the defendant was tried before the Supreme Court had extended the Sixth Amendment to state criminal trials. But Johnson argued that Louisiana's acceptance of a 9-3 jury verdict in his case violated his due process rights under the Fourteenth Amendment to have his guilt proved beyond a reasonable doubt. By definition, no jury could reasonably find a defendant's guilt proved beyond a reasonable doubt, he argued, when some of its members continued to harbor doubts.

By a narrow 5-4 margin, the Court rejected both arguments for constitutionalizing the unanimous verdict.

Apodaca v. Oregon: Unanimity and Representation

To decide the Oregon case, the Court first turned to the history of the Sixth Amendment's passage for evidence of what the drafters of the amendment intended to include within the mandatory features of a jury trial. The Court noted that, as originally introduced by James Madison, the proposed amendment provided for trial "by an impartial jury . . . with the requisite of unanimity for conviction, . . . and other accustomed requisites." But the amendment as finally adopted dropped all references to unanimity and "other accustomed requisites." From this legislative history, the Court thought it possible to "draw conflicting inferences." It is possible that Congress simply thought it unnecessary to specify features as customary as unanimity because it was "thought already to be implicit in the very concept of jury." Or perhaps Congress deleted all references to accepted features of the jury in 1791 because it wished to leave specification of the jury's nature for the future.

Because history alone could not resolve the meaning of the Sixth Amendment, the Court approached its decision from a "functional" point of view. Was the requirement of unanimous verdicts so indispensable to the jury's essential functions that it must be considered part of what the Sixth Amendment means by a "jury"? Here, five justices concluded that, for all its longevity, unanimity lacked fundamental importance and thus constitutional stature.

The chief function of the criminal jury, the Court noted, was "to prevent oppression by the Government." To provide this safeguard, the jury places between the accused and the state "the commonsense judgment of a group of laymen . . . representative of a cross section of the community." In terms of this shielding function, five justices could "perceive no difference between juries required to act unanimously and those permitted to convict or acquit by votes of 10 to two or 11 to one."

The Case for Unanimity

On what basis did the Court conclude that unanimity was superfluous to the jury's core functions? The defendants in Apodaca characterized the unanimous verdict requirement as a "necessary precondition for the effective application of the cross-section requirement." They reviewed the Court's commitment in other cases to making the jury a representative body. That commitment had led to sweeping reforms to end the systematic exclusion of certain groups from jury panels and to the new requirement for drawing jurors randomly from a cross section of the community. But all these reforms of jury selection would be meaningless, the defendants argued, if unanimity were abandoned, leaving majorities free to ignore and outvote minorities on the jury. As the defendants' brief put it:

While members of racial, religious, or ethnic minorities, women, poor people, young people or other previously excluded groups may now be represented on juries, a rule permitting a less than unanimous verdict makes it possible for a verdict to be rendered without their acquiescence and indeed without the consideration of their views.

An amicus brief filed by the American Civil Liberties Union took a similar tack in warning that less than unanimous verdicts make it "easier—perhaps commonplace—for a jury to ignore the viewpoints of minority group members."

These arguments convinced four justices of the Court that unanimous verdicts were vital to the jury's ability to grant effective representation to minority viewpoints. Justice Potter Stewart hypothesized a worst-case scenario where the jury splits along racial lines to convict a defendant "conspicuously identified" as of the same race as the dissenting jurors. Such verdicts contradict the very purposes of recruiting jurors from a cross section of the community, Justice Stewart concluded. They corrode the community's confidence in criminal justice because they let jury verdicts follow racial or class divisions on the jury.

Justice Stewart was frank in conceding that his defense of unanimity rested on a less than rosy picture of the virtues of individual jurors. Ideally, jurors should be virtuous enough to deliberate rationally across group lines, but it takes the unanimous verdict requirement to enforce the ideal. "It does not denigrate the system of trial by jury to acknowledge that it is imperfect, . . . [that there are] serious risks of jury misbehavior, . . . [that juries] sometimes act out of passion and prejudice," Stewart wrote. Human behavior is such that the requirement of unanimity is a necessary "and effective method endorsed by centuries of experience and history to combat the injuries to the fair administration of justice that can be inflicted by community passion and prejudice."

The Court Decides Against Unanimity Requirement

On the other side of the issue, five justices rejected the need for unanimous verdicts by portraying jury behavior in a far more idealized light. With or without the unanimous verdict requirement, jurors retained the duty to deliberate and debate opposing points of view. Technically, of course, Oregon's system would permit jurors to dispense with deliberation altogether if the required majority of ten were present from the beginning. (The dissenters were particularly troubled by the decision of Apodaca's jury to terminate deliberation after only forty-one minutes and return a conviction by a 10-2 vote.)

But five justices found no grounds for believing that a majority of jurors would suddenly cease to live up to the ideal of rational deliberation with the minority, once the unanimity requirement was lifted. Each individual seated on a jury had survived challenges for cause and been found capable of impartial, color-blind, ethnic-blind justice. Lacking evidence to the contrary, the Court would not "assume that the majority of the jury will refuse to weigh the evidence and reach a decision upon rational grounds, just as it must now do in order to obtain unanimous verdicts, or that a majority will deprive a man of his liberty on the basis of prejudice when a minority is presenting a reasonable argument in favor of acquittal." It may be that the minority viewpoint is outvoted in the end. But this was no evidence that the majority had cast its votes "based on prejudice rather than the evidence." In short, according to the Court, there was no reason to think minority views were not being heard, discussed, and therefore adequately represented under Oregon's 10-2 verdict rule.

Johnson v. Louisiana: The Problem of Doubt

Under the due process clause of the Fourteenth Amendment, it had previously been settled that the Constitution required states to prove a defendant's guilt beyond a reasonable doubt. In the Louisiana case, Johnson argued that the remaining, unresolved doubts of three of his jurors meant that the reasonable doubt standard had not been met at his trial.

Amajority of the Court found no inconsistency between nonunanimous verdicts and proof beyond a reasonable doubt. To begin with, the Court pointed out the unquestioned practice of permitting defendants to be retried, when a jury hung and failed to agree on guilt. If Johnson were correct that the doubts of some jurors equaled a failure of proof beyond a reasonable doubt, then the proper remedy for a hung jury would be acquittal, not a second trial.

Proof beyond a reasonable doubt, the Court agreed, was meant to underwrite the accuracy and reliability of jury verdicts. But rational persons may disagree in their judgments. Nine persons can conscientiously and in good faith follow their instructions to be convinced beyond a reasonable doubt, even in the face of the doubts of three of their colleagues. All that is required is that the majority listen to the arguments for acquittal, terminating deliberation and "outvot[ing] a minority only after reasoned discussion has ceased to have persuasive effect or to serve any other purpose—when a minority, that is, continues to insist upon acquittal without having persuasive reasons in support of its position."

As in Apodaca, the Court presumed that jurors would behave according to this deliberative ideal. Indeed, if any jurors were being irrational, it was more likely to be those few who persevered in their doubts when a majority of the jury, after having considered the dissenters' views, remained convinced of guilt or innocence. The Court suggested that these dissenting jurors should be the ones asking whether their views were reasonable, when argument failed to persuade such a majority of the jury. Here the Court alluded to Allen v. United States, the so-called dynamite charge case authorizing judges to instruct deadlocked juries that "if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself."

The Allen charge is often criticized for suggesting to jurors that they compromise simply to avoid hanging. In his concurring opinion, Justice Lewis Powell took the unanimous verdict to task on precisely this ground. For Powell, the unanimity rule put pressure on jurors to compromise, "despite the frequent absence of a rational basis for such compromise." In the end, so-called unanimity led "not to full agreement among the 12 but to agreement by none and compromise by all." This meant that greater accuracy might be achieved under a system that permitted nine jurors, convinced that guilt has or has not been proved beyond a reasonable doubt, to deliver the verdict without having to compromise with a few holdouts who resist rational argument.

A Question of Appearance

Justice Powell made the strongest argument against unanimity by separating it from the goal of reaching truth. But what if a compromise verdict agreed to by all jurors leads to greater popular belief that justice has been done? . . . This legitimizing function, the Court stressed, was one of the main reasons for placing justice in the hands of laypersons. It seems plausible to assume that a community will have greater confidence that justice has been done when these laypersons agree on the verdict. It seems especially apparent that a minority section of the community would suspect verdicts rendered over the objections of the only minority members on the panel. Thus, what Justice Powell harshly criticized as the "irrational" compromises wrought by unanimity may unfairly denigrate unanimity's important role in legitimizing verdicts in the public eye.

Of course, Justice Powell was suggesting that the public was wrong to assume a connection between unanimous verdicts and accurate verdicts. But there can be little doubt that for centuries the unanimous verdict has inspired confidence in the administration of justice. As political scientist Gary Jacobsohn points out, to jettison unanimity and ask the public to accept majority verdicts as equally reliable could well sap the legitimacy of the system. Even Justice Powell accepted this historic, symbolic connection between the unanimity of jury verdicts and their legitimacy when he favored preserving the time-honored tradition of unanimous verdicts in federal trials.

Dissenters Suspect Court's Decision Undermines Reasonable Doubt Standard

In dissent, Justices William Douglas and Thurgood Marshall emphatically endorsed the logical connection between unanimity and proof beyond a reasonable doubt. For Justice Marshall, the "doubts of a single juror [were] . . . evidence that the government has failed to carry its burden" of proof. This was so because no juror's doubts could ever be dismissed as a sign of "irrationality." Assuming the juror is mentally competent, the "'irrationality' that enters into the deliberation process is precisely the essence of the right to a jury trial." Each juror was there to be "a spokesman . . . simply for himself." For Marshall, unanimity was the only method for empowering the solitary dissenting voice when it came to the question of whether reasonable doubt existed.

Likewise for Justice Douglas, under unanimous verdict conditions proof beyond a reasonable doubt sponsored a long and intense process of deliberation where each juror seriously wrestled with the doubts of others. Under majority verdict conditions, deliberation could be cut off before the dissenters had full opportunity to argue for their doubts. Douglas conceded that, even after they had the vote, the majority might deign to listen to the doubts of the minority. But there was all the difference in the world between deliberation entered into as "courtesy dialogue" or "polite and academic conversation" and deliberation entered into because of a necessity to convince others. In the former case, deliberation was reduced to a weak matter of "majority grace," in Justice William Brennan's term. In the latter case, deliberation aided the search for truth by privileging arguments strong enough to win the consent of all. Proof beyond a reasonable doubt was met only when deliberation, in this stronger form, harmonized the views of all jurors.

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The Supreme Court Allows Majority Verdicts in State Trials

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The Supreme Court Allows Majority Verdicts in State Trials