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Background on non-unanimous jury verdicts

Federal law requires that juries return a unanimous verdict—one that all members of the jury agree upon—in criminal trials. While most states follow the same requirement for felony convictions, at the time when Apodaca reached the U.S. Supreme Court, both Oregon and Louisiana did not require state court juries to return unanimous verdicts. Oregon had created this rule in 1934 by state constitutional amendment. Specifically, as long as at least 10 jurors on a 12-member jury agreed, the jury could render a verdict of guilty or not guilty. First-degree murder cases in Oregon courts, however, still would require a unanimous jury verdict. Louisiana had passed a similar constitutional amendment in 1880. However, in 2018, Louisiana voters passed a new constitutional amendment that ended their practice of non-unanimous juries. Now Oregon is the only state that allows non-unanimous jury verdicts for felonies (other states allow them for misdemeanor offenses).

Case facts and procedural posture

Robert Apodaca, Henry Morgan Cooper, Jr., and James Arnold Madden, were convicted of assault with a deadly weapon, burglary in a dwelling, and grand larceny, respectively, in separate trials in Oregon state court. All three juries returned non-unanimous verdicts: Apodaca and Madden's juries voted 11-2 to convict, and Cooper's jury voted 10-2. They appealed their convictions to the Court of Appeals of Oregon, arguing that they were entitled to have the jury instructed that jurors must unanimously agree to convict. The Court of Appeals of Oregon, sitting in banc, affirmed their convictions. In doing so, the court relied on a previous Oregon Supreme Court case, State v. Gann, 254 Or. 549 (1969), that had upheld the provision of the Oregon Constitution allowing the 10-2 jury practice as not a violation of the Fourteenth Amendment. The Oregon Supreme Court denied review, and the three sought review in the United States Supreme Court.

U.S. Supreme Court decision

At the U.S. Supreme Court, the petitioners argued that conviction of a crime by a non-unanimous jury violated their right to trial by jury under the Sixth Amendment (made applicable to the states by through the Fourteenth Amendment).

, all of which returned less-than-unanimous verdicts. The vote in the cases of Apodaca and Madden was 11—1, while the vote in the case of Cooper was 10—2, the minimum requisite vote under Oregon law for sustaining a conviction.1 After their convictions had been affirmed by the Oregon Court of Appeals, 1 Or.App. 483, 462 P.2d 691 (1969), and review had been denied by the Supreme Court of Oregon, all three sought review in this Court upon a claim that conviction of crime by a less-than-unanimous jury violates the right to trial by jury in criminal cases specified by the Sixth Amendment and made applicable to the States by the Fourteenth. See Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). We granted certiroari to consider this claim, 400 U.S. 901, 91 S.Ct. 145, 27 L.Ed.2d 138 (1970), which we now find to be without merit.

• The Court held that the Sixth Amendment right to a jury trial--made applicable to the states via the Fourteenth Amendment, see Duncan v. Louisiana--does not require the jury verdict be unanimous. The Court likened jury unanimity to the 12-man requirement for juries. In Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), decided just four years before this case, the Court held that Florida's refusal to impanel more than six members for a jury trial did not violate the defendant's Sixth Amendment rights as applied through the Fourteenth Amendment. Although the Court recognized a long common law tradition of having 12-member juries, it stated "We conclude, in short, as we began: the fact that the jury at common law was composed of precisely 12 is a historical accident." The Court in Apodaca drew parallels between the 12-member requirement and the unanimous requirement: both "arose during the Middle Ages and had become an accepted feature of the common-law jury by the 18th century." And yet neither, the Court held, were constitutional requirements. The Court listed the purposes behind having a jury trial as laid out in Duncan and Williams, and said that these general purposes (having an intermediary between the prosecutor/judge and the defendant; injecting commonsense judgment of a group of laymen) were still served even if the jury returned a decision of 10-2 or 11-1. Instead of having hung juries, a jury with 10 or 11 in agreement could either convict or acquit. It further rejected petitioners' claim that the Sixth Amendment jury trial must require unanimity to give force to the reasonable-doubt standard. Because that standard arose after the Constitution was written, the Court determined that there was no such requirement found in the Sixth Amendment.
• Second, the Court also held that jury unanimity is not mandated by the requirement from the Fourteenth Amendment that racial minorities could not be systemically excluded during voir dire. Petitioners had argued that allowing nonunanimous jury verdicts essentially skirts the requirement to not exclude minorities in that it could simply overrule minority members of the jury by a 10- or 11-person majority. In rejecting this argument, the Court first said that defendants do not have a right to members of their community on their particular jury; minority members simply cannot be systematically excluded from juries. Next, the Court said that even if racial minorities found themselves in a jury minority, their voices would be heard by the rest of the jury and that there is "no proof for the notion that a majority will disregard its instructions and cast its votes for guilt *or innocence based on prejudice rather than the evidence."

Historical controversies

Racist past for both Oregon and Louisiana constitutional amendments allowing for non-unanimous jury verdicts.

Secondary Sources

• Overturning Apodaca v. Oregon Should Be Easy: Nonunanimous Jury Verdicts in Criminal Cases Undermine the Credibility of Our Justice System.
• The Volokh Conspiracy: Non-unanimous criminal jury verdicts (https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/04/24/non-unanimous-criminal-jury-verdicts/?utm_term=.8808470fdbf6)
• https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=5817&context=jclc
• Both cases together: http://law2.umkc.edu/faculty/projects/ftrials/conlaw/Apodaca.html

This Supreme Court case that was decided in 1971 in conjunction with a case out of Louisiana. Oregon and Louisiana are the only two states whose constitutions allowed for non-unanimous juries to convict people of felonies. Apodaca and his co-petitioners challenged their 11-2 and 10-2 convictions, arguing that their rights to trial by jury protected by the Sixth and Fourteenth Amendments were violated.

The Supreme Court said no, their rights were not violated by non-unanimous jury verdicts. The Court looked back through the history of juries in America and decided that their most important function was to provide “commonsense judgement” in evaluating the arguments presented at trial. The Court held that juries could still have commonsense even if they didn’t all agree.

The past that the Supreme Court looked over a bit was how these practices are rooted in our nation’s racist past. The Louisiana amendment was passed during the Jim Crow era, and Oregon’s was put on the ballot after a lone holdout on a jury prevented a Jewish man from being found guilty of murdering a Protestant one. Even though the days of not allowing minorities to sit on juries is far in the past, a 1990 Oregon study found that too few minorities were called for jury duty, fewer served on juries, and preemptory challenges were being used based on race. And other studies show that non-unanimous juries make it more likely that minority members on a jury can be out-voted. The Supreme Court in Apodaca considered this issue, but hypothesized that the majority would still carefully consider the objections of minority jurors before overruling them.

On the other side, people support the non-unanimous jury verdict system by saying that it helps prevent hung juries with holdouts who refuse to convict – or acquit, as the case may be. Because this rule can go either way, they argue, some defendants can be acquitted of a crime instead of having to go through another trial.

Just a few months ago, Louisiana voters passed a new constitutional amendment that ended their practice of non-unanimous juries. Now Oregon is the only state that allows them for felonies, although not for first-degree murder. So maybe it’s laws are not as progressive as they seem.

As part of this project, I’m working to include some of the case’s history and procedural posture into the Wikipedia page—thanks to Nicole for her help on those suggestions—as well as to include some of the background of why the practice has been so controversial.