V. Unanimity in Criminal Proceedings
| Library | The Rights of the Accused under the Sixth Amendment (ABA) (2016 Ed.) |
A criminal defendant in a federal court has both statutory and constitutional rights to a unanimous jury verdict, as noted earlier.84 Forty years ago, the Supreme Court explained that "in an unbroken line of cases reaching back into the late 1880s, the justices have recognized, virtually without dissent, that unanimity is one of the indispensable features of a federal jury trial."85 The Court declined, however, to extend the Sixth Amendment's guarantee of a unanimous jury verdict to criminal defendants in state courts. In Apodaca v. Oregon, three separate Oregon juries had convicted defendants based on nonunanimous verdicts.86 The verdicts were allowed, with the view that nonunanimous jury verdicts were sufficient for defendants' criminal convictions in state, though not federal, courts.
[T]he purpose of trial by jury is to prevent oppression by the government by providing a "safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge." "Given this purpose, the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the common sense judgment of a group of laymen. . . ." A requirement of unanimity, however, does not materially contribute to the exercise of this common sense judgment. [A] jury will come to such a judgment as long as it consists of a group of laymen representative of a cross section of the community who have the duty and the opportunity to deliberate, free from outside attempts at intimidation, on the question of a defendant's guilt. In terms of this function we perceive no difference between juries required to act unanimously and those permitted to convict or acquit by votes of ten to two or eleven to one.87
Despite the ruling that the U.S. Constitution does not mandate unanimous jury verdicts for state convictions, numerous states require unanimous criminal verdicts by statute or state constitution.88
Most federal courts do not allow criminal defendants to waive the unanimity requirement. In 1992, Justice Kennedy, then sitting as a circuit judge, wrote, "the requirement of a unanimous verdict is firmly established in the federal system."89 Federal Rule of Criminal Procedure 31(a) explicitly requires that "[t]he verdict shall be unanimous."90 The Second, Third, Fifth, Sixth, Ninth, and Tenth Circuits have also explicitly refused to allow a defense waiver of the unanimity require-ment.91 Only the Eleventh Circuit has allowed a waiver of the unanimity requirement, though only "in exceptional circumstances." In Sanchez v. United States,92 the Eleventh Circuit provided the standard for such exceptional circumstances:
Before allowing the defendant to waive the right, the following criteria should be met: (1) the waiver should be initiated by the defendant, not the judge or the prosecutor; (2) the jury must have had a reasonable time to deliberate and should have told the court only that it could not reach a decision, but not how it stood numerically, (3) the judge should carefully explain to the defendant the right to a unanimous verdict and the consequences of a waiver of that right; and (4) the judge should question the defendant directly to determine whether the waiver is being made knowingly and voluntarily.93
In some states, a criminal defendant may waive the right to a unanimous verdict. For example, Maryland permits a waiver of its unanimity requirement when the criminal defendant's decision is made intelligently and competently, so long as the court and prosecution consent to the waiver.94 A criminal defendant in Michigan may also waive, but no additional consent is necessary. A valid waiver there requires only "(1) a specific knowledge of the constitutional right and (2) an intentional decision to abandon the protection of the constitutional right."95
If the jury cannot agree on a verdict on one or more counts, the court may declare a mistrial on those counts.96 The government may retry any defendant on any count on which the jury could not agree.97 In declaring a mistrial, "[t]he trial judge's decision to declare a mistrial when he considers the jury deadlocked is . . . accorded great deference by a reviewing court."98
This view was recently reaffirmed in Renico v. Lett. There the jury deliberated for a total of four hours before reporting it was deadlocked. The trial judge then declared a mistrial.99 The justices concluded that even with the limited period of juror deliberations, the trial judge should be given deference in declaring a deadlock and mistrial. "We have expressly declined to require 'mechanical application' of any 'rigid formula' when trial judges decide whether jury deadlock warrants a mistrial."100
If a deadlock is occurring, the trial court may choose to direct the jury to deliberate further.101 The language, timing, and circumstances surrounding the judge's directions to the jury—commonly referred to as an "Allen charge" or "dynamite instruction"—have come under numerous courts' scrutiny. In Allen, decided more than a century ago, the Supreme Court approved a trial judge's direction that the jury continue its deliberations.102 The justices' most recent opinion on the Allen charge was in 1988 in Lowenfield v. Phelps,103 where the Court allowed the...
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