INSIGHT: When Criminal Juries Disagree, But Someone Goes to Prison Anyway

It sounds like common sense. To send someone to prison, a jury must unanimously agree on the defendant’s guilt. But earlier this term, the U.S. Supreme Court heard oral argument in Ramos v. Louisiana, which raises the question of whether the Sixth Amendment actually requires unanimity in a state jury trial.

Just two states—Louisiana and Oregon—allow criminal convictions by nonunanimous juries, and the Supreme Court has an opportunity to put an end to the practice. Its decision may also go a long way to determining whether anomalies in the incorporation doctrine persist.

First Time, the Supreme Court Blessed Nonunanimous State Juries

Supreme Court precedent for more than 100 years has required jury unanimity for convictions in federal criminal cases, but the same is not so in state criminal cases thanks to a plurality decision by the Supreme Court in 1972 in Apodaca v. Oregon. Nonetheless, until recently, only two states permitted nonunanimous verdicts, and one—Louisiana—said it will require unanimity going forward.

The question thus arises, why is the court considering this case now?

Under Apodaca, a conviction in state court by a nonunanimous jury does not violate the Sixth Amendment right to a trial by jury. At the time of Ramos’s conviction, Louisiana law provided that a jury could render a guilty verdict in non-capital cases as long as 10 out of 12 jurors agreed. Ramos was convicted of murder in a non-capital case in Louisiana by just that margin and sentenced to life in prison.

Louisiana changed its law in 2018 and now requires unanimity for all verdicts related to crimes committed on or after Jan. 1, 2019.

But in Oregon, nonunanimous verdicts are still permitted. Oregon’s law, like that of Louisiana’s, relies on the Supreme Court’s direction in Apodaca. By granting certiorari in Ramos, the Supreme Court seems to be addressing a question that is both settled and of limited applicability.

What if Supreme Court Takes Second Bite at Same Apple—and Spits It Out?

During oral argument, the Supreme Court appeared open to revisiting Apodaca, and seemed to be grappling with fundamental issues, including what is meant by the right to a trial by jury, principles of stare decisis, and the historical view that criminal procedure is an area for state determination.

But the court also appeared concerned that Apodaca created an exception to the incorporation doctrine, and seemed open to determining which of the protections in the Bill of Rights apply to the states through the Fourteenth Amendment. The justices acknowledged that Apodaca was one of few anomalies in its incorporation doctrine jurisprudence.

If the Supreme Court were to find that the Sixth Amendment requires a unanimous jury even for state juries—overruling Apodaca, on which Oregon and Louisiana relied for nearly 50 years—thousands of convictions would be at risk of challenge. Older records often do not indicate whether verdicts were unanimous, and for decades, judges instructed juries that it was acceptable to reach a nonunanimous verdict.

Furthermore, each time a defendant in those states considered whether to accept a plea bargain, they weighed the offer against a higher risk of conviction than if a unanimous jury were required. Post-conviction relief petitions could overwhelm the courts. Still, the Supreme Court might choose to avoid that issue entirely and defer a ruling on retroactivity.

But also, there are a number of other prominent rights currently not applicable to the states under the incorporation doctrine. If the court decides that the right to a unanimous jury is, in fact, one incorporated to the states, then challenges will be ripe for other currently unincorporated rights—such as the Fifth Amendment right to an indictment by a grand jury, the Seventh Amendment right to a jury trial in civil cases, and others.

Indeed, earlier this year, in Timbs v. Indiana, the Supreme Court held unanimously that the Eighth Amendment prohibition against excessive fines was incorporated by the Fourteenth Amendment. The court noted that extending Bill of Rights protections to the states is warranted where the right is fundamental or deeply rooted. Opponents of Apodaca would argue that the right to a unanimous jury would easily clear this standard.

In fact, a footnote in Timbs even put a target on Apodaca by noting it was the sole example of the court’s distinction between the conduct prohibited in federal, but not state, proceedings.

While at first blush the implications for a Ramos decision overruling Apodaca seem to be limited to just one or two states and their nonunanimous jury verdicts, the stakes are in fact much higher.

In Ramos, the court may not only establish that unanimity is required by the Sixth Amendment for federal and state cases alike, but may also signal that it is ready to further whittle away at remaining anomalies in incorporation doctrine jurisprudence.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Caroline K. Eisner is an attorney in the New York office of Buckley LLP where she represents corporate and individual clients in a variety of matters, including complex civil litigation, regulatory examinations, internal investigations, and government enforcement actions.