Does a Jury Verdict Have to be Unanimous?

by Charleston Criminal Defense Lawyer in Appellate Opinions, Jury Dynamics, Know Your Rights, Sixth Amendment. Posted October 8, 2019

Does a jury verdict have to be unanimous?

In federal court, a jury verdict in a criminal trial must be unanimous. Although that is a constitutional requirement, the federal courts have not applied it to the states. Until recently, two states have allowed criminal convictions with less than unanimous jury verdicts – Louisiana and Oregon.

Louisiana recently changed their rule, and now requires a unanimous jury verdict in criminal cases. Oregon is the only remaining state that does not require unanimous verdicts.

Why would the US Constitution’s requirement that jury verdicts be unanimous apply in federal court but not state courts? What about civil cases? Does a jury verdict have to be unanimous in civil cases?

Ramos v. Louisiana – Does a Jury Verdict Have to be Unanimous?

Evangelista Ramos was convicted of murder in New Orleans in 2016 by a split jury – a verdict that, in South Carolina or in federal court, would have resulted in a “hung jury,” or a mistrial. His case is now before the US Supreme Court, where he is arguing that the US Constitution requires a unanimous jury verdict before a person can be convicted of a crime.

Two jurors believed that he was not guilty and refused to change their votes, yet he was still convicted and sentenced to life in prison. After his conviction, Louisiana amended their state constitution to require unanimous jury verdicts, but that doesn’t help Ramos:

Monday’s case, Ramos v. Louisiana, No. 18-5924, concerned Evangelisto Ramos, a Louisiana man who was convicted in 2016 of killing a woman in New Orleans. The jury’s vote was 10 to 2, which was enough under the state’s law at the time. Louisiana has since amended its state Constitution to bar non-unanimous verdicts, but the move came too late to help Mr. Ramos, as it applies only to crimes committed after 2018.

Oregon is the last state that allows non-unanimous verdicts in criminal cases.

Why did these two states still allow non-unanimous jury verdicts? When most federal constitutional rights have been applied to the states through the 14^th Amendment, why hasn’t the right to a unanimous jury verdict also been enforced in state courts?

Apodaca v. Oregon

In 1972, in Apodaca v. Oregon, the US Supreme Court rejected a challenge to Oregon’s non-unanimous jury verdict rule. The Court held that the Sixth Amendment’s right to trial by jury does not require a unanimous jury verdict in the state courts (although it does in the federal court).

I would say, “inexplicably held,” except the reasoning is right there in the Court’s opinion. Non-unanimous jury verdicts were intended to prevent minorities from having a vote on juries.

The US Supreme Court considered this in their opinion, recognized the rationale for non-unanimous jury verdicts, and then gave it their stamp of approval:

We also cannot accept petitioners’ second assumption — that minority groups, even when they are represented on a jury, will not adequately represent the viewpoint of those groups simply because they may be outvoted in the final result. They will be present during all deliberations, and their views will be heard. We cannot assume that the majority of the jury will refuse to weigh the evidence and reach a decision upon rational grounds, just as it must now do in order to obtain unanimous verdicts, or that a majority will deprive a man of his liberty on the basis of prejudice when a minority is presenting a reasonable argument in favor of acquittal. We simply find 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.

Assuming the worst-case scenario – a black man in 1972 is facing trial in a courthouse run by racist white officials, with a white judge, white prosecutor, white police officers, a white defense lawyer, and a mostly white jury. Two black jurors somehow managed to get on the jury in an age where blacks were systematically excluded from jury duty.

The Court in Apodaca held that the Constitution guarantees the right to a cross-section of the community on the man’s jury, including his peers – black jurors. Those black jurors are entitled to speak, and the Court assumes that their fellow white jurors will listen to them, but they are not entitled to a vote.

In a case that is racially charged with a jury packed with racists, the Court is saying the black jurors do not get a vote. However, the Court says that the defendant’s right to a jury of his peers is protected because, of course, the white jurors will listen to the arguments of the black jurors and give them due consideration…

Apodaca, like Plessy v. Ferguson and Dred Scott v. Sanford, is a relic of America’s past where racists judges issued racist legal opinions designed to oppress minorities and perpetuate white supremacy in America. It is long past time to overturn this decision and move on.

Non-Unanimous Verdicts were Intended to Exclude Minorities

If you are thinking to yourself, “That’s ridiculous. Everything is not about race,” then you haven’t read the judicial opinions I mentioned above. Go read them now.

The attorneys and justices at Ramos’ oral argument also acknowledged that the issue of non-unanimous juries is really about excluding minority voices from jury verdicts:

Jeffrey L. Fisher, a lawyer for Mr. Ramos, urged the court to protect dissenting voices on juries. “If you have one or two members of a minority on a jury, it could be a racial minority, it could be a political minority, it could be a religious minority,” he said. “Are we really prepared to say that those one or two votes can be utterly canceled out?”

Justice Kavanaugh also pointed out to the attorneys that Louisiana’s non-unanimous verdict rule was “rooted in racism:”

Justice Kavanaugh also asked about what he said was the ugly history of Louisiana’s unanimity requirement, saying “the rule in question here is rooted in racism, you know, rooted in a desire, apparently, to diminish the voices of black jurors in the late 1890s.”

How do we know that? Because the chairman of the Louisiana judiciary committee said it at the constitutional convention where the rule was adopted:

In 1898, Louisiana held a constitutional convention whose purpose, as the chairman of its judiciary committee put it, was “to establish the supremacy of the white race in this state to the extent to which it could be legally and constitutionally done.”

Will the Court overturn the non-unanimous jury requirement? The Louisiana Solicitor General, after arguing that there should not be a unanimity requirement in either federal or state court, then acknowledged that she does not have any compelling argument for why juries should be unanimous in federal court but not state court:

Justice Brett M. Kavanaugh asked Ms. Murrill for her best arguments for treating state juries differently from federal ones should the court reject her Sixth Amendment argument.

“Justice Kavanaugh,” she responded, “they are concededly not very good.”