Hastings Constitutional Law Quarterly


Ethan J. Leib


In Apodaca v. Oregon and Johnson v. Louisiana, the Supreme Court allowed the relaxation of the decision rule most commonly associated with criminal jury felony verdicts and held that unanimity in state criminal cases is not constitutionally required. The Court announced that states were allowed to use 10-2 and 9-3 verdicts in non-capital state cases in contravention of the traditional rule requiring unanimity. The Court argued that the essential function of the jury is to place between the accused and the state a commonsense group of laymen representing a cross-section of the community-and that relaxation of the unanimity requirement would not upset that function. Moreover, the Court argued that since elimination of unanimity was unlikely to affect the reliability of verdicts, the representativeness of the jury pool, or the deliberation in the jury room (because the majority would still need to convince the minority bloc), the Court blessed the state rules. From the perspective of practice, however, Oregon and Louisiana are the only states that allow felony convictions without juror unanimity (though many states now have a corollary to the federal rule, where mutual consent of the government and the defendant can relax the rule). While the Court has enabled experimentation with decision rules, most states remain committed to unanimity as the proper decision rule for the criminal jury; little experimentation is afoot domestically. Why the obsession with unanimity here-and why is that the baseline decision rule when almost no other decision in public political life gets made by unanimous consent? Indeed, unanimity's hold upon us is so great that we require it for acquittals too: not only do we require complete agreement to convict a defendant but we also require all jurors to agree to acquit one. So much for the presumption of innocence or the idea that the unanimity requirement places the burden of proof completely upon the state. I argue here that supermajority decision rules would be more appropriate than unanimity or majority rule for criminal jury convictions and that majority decision rules would be more appropriate than either unanimity or supermajoritarian rules for acquittals. This hybrid decision rule is new to the conversation about acceptable permutations of decision rules in the American criminal jury context and it should command widespread support.