Last week, the US Supreme Court granted review in Ramos v. Louisiana. The case presents the question whether states may permit conviction of an accused criminal on less than a unanimous jury voting “guilty.” In 1972, in Apodaca v. Oregon, the Court said that the Sixth Amendment entitles individuals to a unanimous jury when they face trial by the federal government. Resolving the issue thus turns in part on whether it makes sense to understand the Constitution as extending fewer rights to defendants in state courts than it does to defendants in federal court. And it turns as well on the role that unanimity plays in a criminal trial.
Incorporation
When the Bill of Rights, the first ten Amendments to the Constitution, became law, people understood (and the US Supreme Court interpreted) them to regulate federal government actors only. Indeed, the First Amendment expressly says that “Congress shall make no law abridging the freedom of speech.” The men who framed and ratified the Constitution and Bill of Rights were mostly worried about a too-powerful federal government becoming as oppressive as George III. They were not focused on how to restrain the states, which were already subject to rights provisions in state constitutions. The federal government thus appeared to require outside restraints in a way that state governments did not.
After the Civil War, however, state governments seemed less benign. The Reconstruction Congress thus adopted the Thirteenth, Fourteenth, and Fifteenth Amendments to curb state-sourced abuse. Specifically, the Privileges or Immunities Clause of the Fourteenth Amendment seemed to say that rights previously enforceable against only the federal government would now apply to state governments as well. But the Supreme Court rejected that interpretation in 1872. Accordingly, later judicial decisions identified a different part of the same Amendment—its prohibition against deprivations of life, liberty, or property, without the due process of law— as the source for most of the rights that restrict state governments.
The language of the Fourteenth Amendment’s Due Process Clause, however, was not (and is not) self-explanatory. A narrow definition might hold that if a state government wanted to execute or incarcerate somebody, or if it wanted to confiscate someone’s property, it would need only provide a trial or a hearing first. It is hardly obvious that the Fourteenth Amendment would result in the application of the Bill of Rights to the states. And yet, for the most part, that application is exactly what occurred.
It did not happen immediately. The Fourteenth Amendment became law in 1868, and it was not until the 1920s, more than a half-century later, that the Court began using its Due Process Clause to identify both substantive and procedural rights protections against state governmental incursion. And though the Court did “incorporate” most Bill of Rights provisions against the states, through the Fourteenth Amendment, it has continued to leave some unincorporated. Examples include the right to be indicted by a grand jury before a prosecution may commence, the right to a jury in a civil trial, and—at least until now—the right to a unanimous jury in a criminal case. The Court has not articulated an argument for why people have a greater need for these particular rights against the federal government than they have against the states. Indeed, a footnote in a 2010 opinion suggests that the relevant cases came out the way they did simply because the Court decided them long before it began incorporating the Bill of Rights.
Unanimity
In some sense, resolving the question in Ramos ought to turn on how important it is to have the right to a unanimous jury. Is a trial in which the jury must reach a unanimous verdict fairer than one governed by a majority rule or a rule that requires something in between a bare majority and unanimity?
In theory, a unanimous verdict requirement ensures that the people on the jury deliberate about the evidence and what it proves before reaching a final conclusion. If all that is required is a majority, by contrast, then whenever a majority votes “guilty,” the verdict can be submitted without any kind of conversation about whether that is the right outcome. If every member of the group must be on board, then anyone voting the other way or expressing uncertainty will require the others to articulate their own positions and explain how they reached those positions. Everyone will feel motivated to translate unsupported and potentially unsupportable gut feelings into reasoned and persuasive arguments based on the evidence.
I say “in theory,” because as I explored in another column, it is quite difficult to hold onto one’s position in the face of overwhelming opposition. In addition, if the foreperson of the jury is in the majority, he is likely an extrovert who will tend to dominate any “discussion” and yield a predictable outcome. In other words, holdouts tend not to hold out for very long. And if that is the case, then the right to a unanimous jury can easily do little more than delay jury “deliberations” for a few minutes rather than yielding a true exchange of ideas that would otherwise have not happened.
What if each juror is firmly committed to some particular position, guilty or not guilty, and is unwilling to budge? The answer is that if unanimity is required, then a divided jury will lead to a mistrial. Is this a good thing, a bad thing, or neither?
From the perspective of the criminal defendant, if a majority without unanimity leads to a mistrial and perhaps a new trial, then the unanimity right would be a positive thing. Where the defendant might otherwise have been convicted based on a majority vote, he instead has the opportunity to appear before a whole new jury, perhaps once again leading to a mistrial or even an acquittal, and eventually, the state may tire of trying this person over and over again and dismiss the charges.
This perspective tells us why a criminal defendant might like to have the right to a unanimous jury. He will almost certainly want a configuration that reduces the odds of a conviction, and a unanimity requirement does do that, relative to a majority rule. But this hardly makes unanimity an important rule. Not everything that reduces the odds of a conviction is something to which the defendant is entitled. After all, a rule that prohibited the prosecution from cross-examining the defendant as a witness could also be helpful to the defense, but no one is suggesting that the Constitution requires such a regime.
The Court has, however, required a unanimous jury at federal trials, as part of the Sixth Amendment. The jury, as a group of lay people, may be able to access a type of wisdom that a single individual, even one as learned and wise as a judge, cannot approximate. Someone might come up with an argument—or identify an overlooked fact—that would never have surfaced in a bench trial.
What if I am right, however, that people may not deliberate when unanimity is required, that holdouts may instead either cave to the majority (if it is a large enough majority) or dig in their heels?
My answer is this. If they cave, then the fact that unanimity is required will make no difference, one way or the other. If, on the other hand, people double down on their original positions, we have a positive benefit that can come out of that.
Think of the jury as a sampling of the whole population. If everyone on the jury votes “guilty,” then that provides good evidence that presenting the case to the whole population would also yield a guilty verdict, and that prospect is reassuring. If anyone in the group votes “not guilty,” by contrast, then that fact makes it likely that some significant portion of the population would believe that the defendant was entitled to an acquittal. Convicting under those circumstances ought to be discomfiting to all of us, particularly in a nation where, as Blackstone said, “it is better that ten guilty persons escape than that one innocent suffer.”
Consider an analogy. You are checking out an apartment in which you would like to live. It looks very nice, but looks can be deceiving. You worry that there might be cockroaches in the apartment, and you would reject an infested apartment no matter how pretty it was. You decide that you will visit the apartment with the broker after the sun sets and turn on the fluorescent lights in the kitchen. If you see even one cockroach while conducting this kitchen survey, then you will look for a different place to live. If you see none, then you will feel more comfortable signing a lease.
Let me first say that I am not comparing jurors who vote “not guilty” to cockroaches. What I am doing is suggesting that when you look for an apartment, you treat each visit and perhaps even each moment of a visit, as a sampling of the experiences you would have if you lived there. The one visible cockroach bothers you because its presence suggests that there are many more hidden ones. Likewise, if the evidence in a criminal trial led some of the jurors to vote “not guilty,” then that would suggest that the larger population of potential jurors would include “not guilty” votes as well.
Perhaps, then, at some level, the unanimity requirement captures the “beyond a reasonable doubt” standard. Maybe it is more than just a standard of proof that jurors must apply in determining how certain they need to be before returning a guilty verdict against a criminal defendant. It is possible that beyond a reasonable doubt means that when you assemble a group of (presumptively reasonable) people to hear the evidence against the defendant, none of them will doubt the guilt of the accused. If this is what the jury does—serves as a spot check for whether the evidence is sufficiently compelling—then the Court ought to announce that the Sixth Amendment unanimity requirement applies to the states as well as to the federal government.
