Non-Unanimous (Super-Majority) Verdicts

In case you've been living under a legal rock, let me inform you that most States and the federal courts require a unanimous 12 person jury to convict someone of a criminal offense. Now, the last couple States that allow super-majority verdicts (10-2) are being brought before the US Supreme Court on claims that a less than unanimous verdict is unconstitutional (specifically, it's Ramos v. Louisiana). And if you look around, all the talking heads types are fairly confident that the court will take the power of determining jury use away from the States and mandate unanimous jury votes from here on out.

JURY REFORMS IN OTHER COUNTRIES

No matter how much the American legal system has come to cherish this unanimity (while at the same time doing everything it can to de facto eliminate jury trials), this is not a mandated outcome of the constitution as written. As is often the case, we can look to the development of jurisprudence in England in order to see see an equally valid version which could have developed in the United States. In Section 13 of the Criminal Justice Act 1967, later replaced by Section 17 of the Juries Act 1974, England and Wales codified conviction by super-majority. Under this system, the jury has two hours to reach a unanimous verdict under the statute and apparently ten minutes has been added for time to travel back and forth to the jury room. Crown Court Compendium Part I, 21-4 Majority verdicts.  If they have not reached a unanimous verdict after two hours at any time thereafter (at the judge's discretion) they get an instruction from the judge that contains these elements:

(1) They should still, if at all possible, reach a unanimous verdict.
(2) If however they are unable to reach a unanimous verdict the time has now come when the court could accept a verdict which is not unanimous but one on which a majority of at least 10 of them agree; that is to say a majority of 10/2 or 11/1. 
Crown Court Compendium

Or if you prefer to see a version of this delivered (although fictionalized):

I would of course prefer a unanimous verdict, but I'm prepared to accept one upon which at least ten of you are agreed.
Kavanagh QC, Season 1 Episode 1, 01:32:05 (here on Amazon)

England/Wales weren't the first to reform toward super-majority juries. In Australia the various states adopted this system: South Australia (1927), Tasmania (1936), Western Australia (1960), the Northern Territory (1963), Victoria (1994), and New South Wales (2006). In 2009, New Zealand adopted super-majority verdicts. Jamaica adopted them in 2010. Of course, you could complain that these are all modernish developments and be semi-correct. If you did, I'd pass on arguing whether 1927 or 1936 could be called even modernish and point you to the Scottish system which has allowed simple majority verdicts in criminal trials since the 16th century.

So, you see, the unanimous 12 person jury was not some predestined commandment based on ingrained natural law. Instead, it's the shadow on the cave's wall. The question is how we've become so rapt in our belief of the reality of the shadow.

INITIAL REJECTION OF UNANIMITY

The entirety of the mentions in the constitution having to do with criminal petit juries are:

Art. III, Sec. 2(3): The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Amendment VI:  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 shall have been previously ascertained by law.

You'll notice that no requirement of unanimity under either passage. So where does it come from? We know that a lot of the Bill of Rights was based upon the Virginia Declaration of Rights (incorporated as the first part of Virginia's constitution). However, we can see that portions of the VDR were rejected.

That in all capital or criminal prosecutions a man has a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of twelve men of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he be compelled to give evidence against himself; that no man be deprived of his liberty except by the law of the land or the judgment of his peers.VDR Section 8.

Of particular interest to this discussion is the fact that Virginia's requirement "without whose unanimous consent he cannot be found guilty" was passed over in the federal version. We know that when the 6th Amendment was being put together by Congress language requiring unanimity was proposed:

The trial of all crimes . . . shall be by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction . . .
1 Annals of Congress 435 (1789)

Congress chose not to include the language requiring a unanimous verdict.

EX POST FACTO CLAIMS

What followed was something we see far too often. Those who couldn't get their version into law declared that it was the law anyway. Here's an article from Reason in favor of unanimity that does a good job of summarizing all the ex post facto claims that the 6th Amendment says what it doesn't say - or at least encompasses unanimity by the mere mention of the word "jury." This interpretation sweeps aside Congress' choice not to include the requirement and the States' ratification of that choice by adopting the amendment as written (the States initially rejected two amendments).

BLACKSTONE -  THE COMMON LAW AS CONSTITUTION?

The strongest argument for the word "jury" including in its definition unanimity is that it was that way under the common law. As with all things common law, the go to place to find this is Blackstone:

UPON theƒe accounts the trial by jury even has been, and I truƒt ever will be, looked upon as the glory of the Engliƒh law. And, if it has ƒo great an advantage over others in regulating civil property, how much muƒt that advantage be heightened, when it is applied to criminal caƒes! But this we muƒt reafer to the enƒuing book of theƒe commentaries: only obƒerving for the preƒent, that it is the moƒt tranƒcendent privilege which any ƒubject can enjoy, or with for, that he cannot be affected either in his property, his liberty, or his perƒon, but by the unanimous conƒent of twelve of his neighbours and equals. 2 Blackstone's Commentaries Chapter 23: Of the Trial by Jury, p. 379 (Book Three).

Of course, as with all things Blackstone, this is a cherry-picked section which provides support for a favored position. Remember, this is the same book that says:

WHEN the evidence is gone through on both ƒides, the judge in the preƒence of the parties, the counƒel, and all others, ƒums up the whole to the jury; omitting all ƒuperfluous circumƒtances, obƒerving wherein the main queƒtion and principal iƒƒue lies, ƒtating what evidence has been given to fupport is, with ƒuch remarks as he thinks neceƒƒary for their direction, and giving them his opinion in matters of law ariƒing upon that evidence.

I dare a trial judge out there to sum up the evidence only including what she thinks is relevant and to tell the jury what facts she thinks they should concentrate on. You could probably put a stopwatch on how quickly an appellate court would overturn that conviction.

Anyway, Blackstone provides the best legal argument for those wanting to declare that less than unanimous verdicts were unconstitutional from the beginning.  Of course, it assumes that this part of the common law was constitutional and neither merely a law nor a part that has been ignored as not fitting in the current American legal framework. Clearly, the parts about "affected . . . in his property" and the twelve person requirement have both been found to be laws, not constitutional guarantees and this shouldn't bode well for claiming the rest of the statement is something guaranteed.
 
Other than that those arguing unconstitutionality are on even thinner ice. Those more disposed toward legal arguments rely on Blackstone combined with the ex post facto arguments above made by those who couldn't get Congress to include their proposed condition in the 6th Amendment.

INSTITUTIONAL GUILT

Some are making the argument that the non-unanimous rule should be done away with because of problems specific to Louisiana's adoption of the rule. Although neutral on its face, it was adopted for racist reasons. In 1880 the US Supreme Court ruled that Blacks must be allowed to serve on juries. In that same year, Louisiana changed its laws so that conviction would be allowed at 9-3 (changed in 1974 to 10-2); this was made part of their constitution in 1898. Thus, considering its roots, it should be swept away.

MAJORITARIANISM

Unfortunately, a potentially powerful argument in favor of the unanimity requirement is that of majority rule. Of course, it's not the job of the constitution to impose what a majority of states choose upon the minority of states, but let's be realistic. It's a powerful influence even when it shouldn't be. 

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ARGUMENTS AGAINST CONSTITUTIONALLY REQUIRED UNANIMITY

(1) CONGRESSIONAL CHOICE:  The Congress by choosing not to include it in the 6th Amendment set unanimity of jury verdicts solidly in the "law" part of American jurisprudence rather than the "constitution" part. Thus, it falls within the realm of the Congress and the law making bodies of the various states to determine whether a jury verdict should be unanimous because every single body that determines law can change or outright override the common law.

(2) CONGRESSIONAL KNOWLEDGE:  Furthermore, it was well within the knowledge of a number of the writers of the Constitution and Bill of Rights that there were places in the world where a unanimous jury verdict was not required for conviction. Remember, the man who wrote the Constitution was born in Scotland. In fact, the members of Congress didn't even have to look overseas to find this legal condition. Connecticut, Pennsylvania, North Carolina, and South Carolina during colonial times developed jury systems that did not require unanimous verdicts (see note 45 here). The proposal for a unanimous verdict clause in the Constitution and its rejection did not occur in a vacuum.

(3) NEUTRALITY OF THE STATUTORY SCHEME:  There is nothing inherently racist, sexist, or anti-religious about a super-majority verdict. While this case and the news coverage of it have concentrated on the problematic origins of Louisiana's and Oregon's rules allowing super-majority verdicts, you'll notice that none of them comment on the military's use of majority juries. It doesn't fit the narrative. Neither does the adoption of super-majority verdicts in many (perhaps most) of the countries which have judicial frameworks that find their roots in the same British common law system as ours sprang from. Our system is the one that's anachronistic. And, of course, California isn't exactly known as a hotbed of laws based on racial bigotry and it considered changing to majority verdicts three times from 1980 to 1995.

(4) TRYING TO FIX THE WRONG PROBLEM:  The problem isn't really super-majority verdicts. The argument proceeds as such: the requirement that only ten people have to vote for a finding of guilt allows African-American votes on the jury to be silenced. If this is true, the problem isn't in the allowance of super-majority verdicts; it's in jury selection. 

32.18% of the residents of Louisiana are Black. As such, a twelve person jury should have at least three Black jurors and usually four. That means that a minimum of one or two Black jurors would need to vote for conviction in order to reach the super-majority. If the number of Black jurors on a jury aren't representative then the problem isn't the super-majority requirement - it's the summoning and selection of jurors. Assuming bad intent, the problem is found in the biased creation of the list of potential jurors, or the over-liberal allowance of strikes for cause, or the poor enforcement of Batson. The problem here might be that none of that applies. I can't find anything - including Ramos' brief - that states the composition of the jury had two or less Black jurors. I would expect that to be the lead fact pointed to if it were so. It's also of note that apparently Ramos identifies or at least was identified at trial as "Mexican or Hispanic" (Ramos' brief) which calls into question whether the number of Black and White jurors is even relevant.

His lawyers had to work with what they had. If they couldn't demonstrate actual prejudice they were left with an abstract argument that didn't have any real personal emotional hooks. Obviously, they've done a good job to get it this far, but that doesn't mean they're right.

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WHY WE ARE HERE

Because the controlling precedent in this area, Apodaca v. Oregon, is weak. It's one of those 4/4/1 opinions you only see from the Supreme Court (because nobody else could get away with it). 4 justices wanted to make the states have unanimous juries, 4 justices didn't think the 6th Amendment required unanimity, and Justice Powell struck out on his own deciding that the 6th Amendment required unanimity but that it didn't apply to the states. As the Supreme Court has imposed more and more of the Amendments on the States through the 14th Amendment Justice Powell's decision has become more and more tenuous. Back in the day, the justices chose which parts of the constitution applied to the states; now they just impose everything.

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EXPECTED DISPOSITION

I expect this will be a fairly shallow opinion. That doesn't mean it won't be between 25 to 40 pages, replete with tons of citations, and filled with repetitive circular reasoning (this is the Supreme Court after all). It simply means that I expect the justices to impose all of their 6th Amendment precedent on the states without a serious consideration of whether the precedent of unanimous juries should stand.

Even were they to consider it, I wouldn't expect a decision based on solid constitutional grounds. Oh, sure, there'd be lots of legalistic sophistry, but this one is a rule of five situation where the Supreme Court has already sat and would sit as a super-legislature writing laws. It would be decided on the "feels." Instead of recognizing the Constitution as a framework that allows different possibilities within the limits laid out in the 6th amendment, the Court would again impose the unanimous jury on every state. It would do so because it feels like they ought to. The vast majority of states already do it. Louisiana, the state specifically involved in this case, has changed its law to require unanimous verdicts. Extra-legal, American institutionalized guilt would weigh in. Whatever the  legal excuse given, the feels are the real reason this Court would affirm another denial of the power of states to decide their own laws.


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WHY IT IS IMPORTANT

America is behind in the jury reform movement. While we mouth words about how sacrosanct the jury is, in reality we are making it more and more like a unicorn: a beautiful creature of myth that is never seen. Drop in on your local felony court on any given day and you'll almost never see a jury. Juries are heavily disfavored and discouraged to the point that the defendants who demand them are usually irrational or have nothing to lose. They are inconvenient, time consuming, expensive, and take matters out of the hands of legal professionals (the unforgivable sin). They were as well in the countries who have engaged in reforms.

This is not to say that super-majority verdicts would bring back the number of juries seen in previous eras. It's just a start, but it's a start that has been adopted almost everywhere with a jury system similar to ours. When you're the odd man out, it's not a bad thing to reconsider your position. However, once the Supreme Court has declared that the states no longer have the power to reconsider, this rule will be carved in stone until the end of time unless someone amends the Constitution. Since we now seem to consider the Constitution as Holy Writ (rather than merely foundational, and changeable law) that is highly unlikely.