The U.S. Supreme Court on unanimous jury verdicts

Common-law jurisdictions are by no means unanimous on the necessity for unanimous jury verdicts in criminal trials. Majority verdicts, in one form or another, are allowed in Ireland, Northern Ireland, England and Wales, Scotland, New Zealand and most Australian states. The situation in Australia is rather complicated. As a result of the High Court decision in Cheatle v The Queen (1993) 177 C.L.R. 541, unanimous verdicts are required for Commonwealth offences (which are not all that numerous). Some of the individual states, while generally permitting majority verdicts, require a unanimous verdict for murder. It is all very different in North America. Unanimous verdicts are required in Canada and the United States. However, in the United States, until about a week ago, unanimous verdicts were required in federal trials, but the federal Constitution did not prohibit majority verdicts in the states. Now, in Ramos v Louisiana 590 U.S. – (2020), decided on 20 April 2020, the Supreme Court has held that the unanimity requirement applies to the states as well.

The legal background to Ramos is briefly this. The first ten Amendments to the United States Constitution, collectively known as the Bill of Rights and adopted in 1791, originally applied to the federal government only. The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury…” This been interpreted to mean that it takes a unanimous jury verdict to convict a person of a serious federal offence. See, for example, Patton v United States 281 U.S. 276 (1930). The Fourteenth Amendment, adopted in 1868 shortly after the Civil War, provides (s.1):

“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor shall it deny any person within its jurisdiction the equal protection of its law.”

The main objective of the Amendment was to prevent individual states, especially in the South, from denying fundamental rights to racial minorities, including ex-slaves. Through a series of “incorporation” decisions, which began in the 1920s, the Supreme Court has gradually applied virtually all the provisions of the Bill of Rights to the states through the Fourteenth Amendment. For instance, in Gitlow v New York 268 U.S. 652 (1925), the Court applied the First Amendment right to free speech to the states in this way. Until now, the requirement of jury unanimity in criminal trials remained something of an outlier in this respect. It was and remains a requirement in federal trials. But in Apodaca v Oregon 406 U.S. 404 (1972), the Supreme Court decided by a bare majority (of which more later) that the unanimity requirement mandated by the Sixth Amendment did not apply to the states through the Fourteenth Amendment. Apodaca has now been overruled by Ramos, which was a 6-3 decision.

The legal consequences of Ramos are not very significant as far as jury trials are concerned. By the time the petitioner, Evangelisto Ramos, was convicted of murder by a 10-2 verdict in 2016 (and indeed for long before that), 48 states required unanimous jury verdicts. Louisiana and Oregon were the only states to permit majority verdicts. In fact, by the time this case reached the Supreme Court Louisiana had already amended its constitution, but only prospectively, to require unanimous verdicts. This left Oregon on its own. Needless to say, Ramos may have serious practical consequences for both Louisiana and Oregon if they have to deal with a deluge of appeals from persons convicted by majority verdicts (a point that was not lost on Justice Alito in his dissent).

The big question in Ramos was whether Apodaca should be overruled. If so, where did this leave stare decisis? That was what exercised some of the Justices most. Gorsuch J., who delivered the opinion of the Court (on certain parts), was quite clear that a precedent such as Apodaca could be overruled:

“Of course, the precedents of this Court warrant our deep respect as embodying the considered views of those who have come before. But stare decisis has never been treated as “an inexorable command.” And the doctrine is “at its weakest” when we interpret the Constitution “because a mistaken judicial interpretation of that supreme law is often “practically impossible” to correct through other means, To balance these considerations, when it revisits a precedent this court has traditionally considered “the quality of the decision’s reasoning, its consistency with related decisions, legal developments since the decision; and reliance on the decision.”

(P. 20 of slip opinion, citing earlier opinions). Justice Kavanagh, on the other hand, felt compelled to write an 18-page concurring opinion, and a very learned one at that, in which he analyses the role of state decisis beginning (as American judges are prone to do) with Blackstone and coming right up to the present day. This enabled him conclude:

“In sum, Apodaca was egregiously wrong, it has significant negative consequences, and overruling it would not upset reliance interests.”

At this point, is hard to resist quoting Linda Greenhouse, a superb commentator and Supreme Court scholar, who wrote in the New York Times:

Justice Kavanagh’s 18-page opinion, which no other Justice joined, included a list of 30 of “the Court’s most notable and consequential decisions” that overturned earlier rulings – a kind of “30 ways to leave your lover” inventory of decisions that occupied the ideological spectrum from Brown v The Board of Education to Citizens United.”

(“A Precedent Overruled Reveals a Supreme Court in Crisis”, NYT, 23 April 2020). Her successor as Supreme Court correspondent for the Times, Adam Liptak, also has an excellent analysis of the case (NYT, 20 April 2020).

Justice Thomas also concurred in a separate opinion confirming that the Sixth Amendment requires unanimous jury verdicts in criminal trials, but also reiterating his view that such rights are incorporated against the states through the privileges and immunities clause, as opposed to the due process clause, of the Fourteenth Amendment. This has been one of his longstanding preoccupations which he had previously addressed as recently as February 2019 in Timbs v Indiana 586 U.S. – (2019). (Timbs, incidentally, had held that the Eighth Amendment prohibition of excessive fines applies to the states through the Fourteenth Amendment). Justice Thomas concludes his opinion in Ramos, ominously according to some:

The textual difference between protecting “citizens” (in the Privileges and Immunities Clause) and “person[s]” (in the Due Process Clause) will surely be relevant in another case.”

Now come the questions. This was an important case but not one of earthshattering significance. Overruling Apodaca should have been no big deal because it was a very weak precedent to begin with and, as already noted, only one state currently allowed for majority verdicts. Why then did it result in five opinions, including that of the Court, running to 86 pages of the draft official reports? Why did the Court agonise so long and hard about whether it should hear the case at all? Apparently, it was considered at no fewer than eight closed-door conferences over a six-month period before review was granted. Why did Justice Kavanagh write at such length on stare decisis and Judge Thomas, though not quite at the same length, on the proper interpretation of the Fourteenth Amendment?

Some observers are inclined to answer all of these questions with one word: abortion. If a clear majority of the Court can overrule Apodaca (1972), why might they not do the same with Roe v Wade (1973)? Bear in mind that the majority in Roe held that the challenged Texas abortion statute violated the due process clause of the Fourteenth Amendment.

Yet, it is hardly as straightforward as that. Some of the more liberal Justices who joined the majority in Ramos were undoubtedly genuinely committed to unanimous jury verdicts. Justice Sotomayor, for example, who also wrote a concurring opinion, was clearly concerned about the racially-biased origins of the majority verdict laws in Oregon and Louisiana. On the other hand, we find Justice Alito, who is regarded as being on the conservative side of the Court, complaining in his dissenting opinion in Ramos that “[t]he doctrine of stare decisis gets rough treatment in today’s decision.” Moreover, Apodaca, however one looks at it, was a deeply fractured decision. A plurality of four Justices held that the Sixth Amendment did not require unanimous verdicts in either federal or state courts, while four others held that it did. Then, Justice Powell, who was effectively the swing vote, decided that the Sixth Amendment did require unanimous verdicts but that this did not apply to the States through the Fourteenth Amendment. Roe v Wade, on the other hand, was a 7-2 decision and the basis of the majority opinion was quite clear.

Having said all that, it is well to remember that the late Justice William Brennan used to tease his clerks that the most important word in American constitutional law is “five”; it takes only five members of the Court to decide what the law is.

As to the merits of unanimous and majority jury verdicts in criminal trials, the arguments are now well rehearsed. Opponents of majority verdicts ask if a less than unanimous jury can truly be satisfied beyond a reasonable doubt of an accused person’s guilt. After all, in a 10-2 guilty verdict, one-sixth of the jury are clearly not so satisfied. Supporters of majority verdicts usually base their arguments on the possibility that a “rogue” or stubborn juror may insist on holding out, despite compelling evidence of the accused’s guilt. Were this to happen where unanimous verdicts are required, it would lead to a hung jury with the possibility of a long and expensive retrial.

All the indications are that, in these islands and least, majority verdicts are here to stay. One of the ironies about the United States is that although jury verdicts of guilt must be unanimous, jury trials have become something of a rarity. It is estimated that, at present, 97% of all federal convictions and 94% of all state convictions result from guilty pleas. This, however, is largely due to the extraordinary power yielded by prosecutors who can bring multiple charges, some carrying severe minimum penalties, thus almost compelling defendants to enter plea bargains. (A recent issue of the Federal Sentencing Reporter (Vol. 31:4-5 (2019)) was devoted to the so-called trial penalty, referring to the much heavier sentences defendants can expect if convicted following a contested trial). As already noted, in Cheatle v R (1993) 177 C.L.R. 541, the High Court of Australia unanimously held that unanimous verdicts were required in trials for Commonwealth offences. A few months earlier, in this country, the Supreme Court had heard the appeal in O’Callaghan v Attorney General [1993] 2 I.R. 17 which involved a challenge to s. 25 of the Criminal Justice Act 1984 which introduced majority verdicts. The Court peremptorily dismissed the appeal immediately after hearing it (no messing about in those days) and delivered its judgment a few months later.

Yet, at the level of principle and policy, the debate about majority verdicts should not be regarded as closed. Judgments such as those in Cheatle, Apodaca (especially the dissenting opinions) and Ramos, are still worth reading and pondering, not only for their impressive historical surveys, but for their policy analyses as well.

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