Ten angry men: unanimous jury verdicts in criminal trials and incorporation after McDonald.

AuthorRiordan, Kate
  1. 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. (22) Again, the defendant requested a jury instruction asking that the verdict be unanimous. (23) This request was denied, the Oregon Supreme Court denied review, and a writ of certiorari was submitted to the Supreme Court. (24) On January 10, 2011, the Court denied cert. (25) Far from being merely an interesting footnote about criminal procedure, the Apodaca decision has had grave repercussions for accused defendants in Oregon and Louisiana.

    This Comment argues that the constitutionality of majority verdicts in state criminal trials needs to be reexamined, and overturned, in light of recent Supreme Court decisions and empirical studies. Part II will include (a) a brief history of the incorporation doctrine in general and the incorporation of the Sixth Amendment in particular, and (b) an in-depth examination of the reasoning of the Apodaca holding. Part III will argue that the reasoning in Apodaca, disjointed in 1972, has lost all force in the thirty years since it was decided for three reasons. Firstly, unanimity in criminal trials satisfies the standard for incorporation the Court set forth in McDonald in July 2010. Secondly, majority verdicts in criminal trials implicate serious due process concerns given their weakened adherence to the beyond-a-reasonable-doubt standard. And finally, the Apodaca plurality's assumptions about jury behavior, which formed the bulk of its analysis, have since been proved false in empirical studies. Those studies have shown that majority-verdict juries deliberate less robustly and tend to discount the opinions of women and minorities; furthermore, concerns about the prevalence of hung juries are overblown. In short, the pillars upon which the Apodaca holding rested have crumbled since it was decided.

  2. INCORPORATION OF THE BILL OF RIGHTS

    Originally, the Bill of Rights only applied to the federal government, and not the states. (26) However, starting with the Slaughter-House Cases in 1873, the Due Process Clause of the Fourteenth Amendment at least partially extended the Bill of Rights to the states as well. (27) In the first half of the twentieth century, the Supreme Court applied a doctrine known as "selective incorporation" to determine which provisions of the Bill of Rights were necessarily binding upon the states through the Due Process Clause. (28)

    To decide the reach of incorporation in Palko v. Connecticut, the Court used a standard of whether or not a particular right was "implicit in the concept of ordered liberty." (29) In that case the Court determined that the Fifth Amendment's protection against double jeopardy did not qualify as such. (30) Even though this holding was later overturned in Benton v. Maryland twenty-two years later, (31) the Palko standard remains one of the most famous formulations of the incorporation doctrine. (32) According to Gideon v. Wainwright, "a provision which is 'fundamental and essential to a fair trial' is made obligatory upon the States by the Fourteenth Amendment." (33) The past fifty years have widened the scope of those provisions that necessitate incorporation, particularly in regards to personal (as opposed to economic) liberties. (34) In fact, as of 2011, the only rights not fully incorporated--besides the Sixth Amendment right to a unanimous jury verdict--are the Third Amendment's protection against the quartering of soldiers, the Fifth Amendment's requirement of a grand jury indictment, the Seventh Amendment's right to a jury in civil cases, and the Eighth Amendment's prohibition against excessive fines. (35)

    Most recently, the Court reaffirmed its adherence to an incorporation standard of "whether a particular Bill of Rights guarantee is fundamental to our scheme of ordered liberty and system of justice" in McDonald v. City of Chicago. (36) McDonald, which extended the Second Amendment's prohibition on infringing the "right of the people to keep and bear arms" (37) to the states, reiterated that the Court has "abandoned 'the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights,'" and that it is "'incongruous' to apply different standards 'depending on whether the claim was asserted in a state or federal court."' (38) Despite the fact that the incorporation doctrine has widened so that nearly every right guaranteed by the Bill of Rights applies equally to state and federal governments, the constitutional right to a unanimous verdict in a criminal trial applies exclusively to the federal courts.

    1. INCORPORATION OF THE SIXTH AMENDMENT

      The Sixth Amendment has not been fully incorporated; however, most of its provisions have been incorporated piecemeal. (39) The Amendment reads as follows:

      In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shah have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. (40) In addition to the rights mentioned in the text, the Sixth Amendment also guarantees other fundamental aspects of criminal trials, including the reasonable-doubt requirement and a jury of at least six members. (41) Because these rights are "fundamental and essential to a fair trial" they are binding upon the states, even though the Sixth and Seventh Amendments do not explicitly provide for them. (42)

      In Williams v. Florida, the Court held that Florida's six-member jury statute satisfied the Sixth Amendment as carried to the states by Duncan v. Louisiana, which incorporated the Sixth Amendment right to a jury trial. (43) The Court found twelve-member juries were not "an indispensable component" of the goals and purposes of a jury trial. (44) For the purposes here, there are two notable...

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