Time for another Tuesday Talk, where the rules are trashed and you get to scream at the top of your lungs from atop my soapbox. Today’s subject is this editorial from the Oregon Mail Tribune on less-than-unanimous verdicts in criminal trials.
Today, in 2017, Oregon is one of only two states that allow criminal defendants to be convicted with a less-than-unanimous jury verdict. The other is Louisiana.
Why does it matter whether all 12 jurors in a felony case vote to convict, or only 10 of 12?
For starters, a unanimous jury verdict has been presumed to be the standard for criminal conviction since before the U.S. Constitution was written. The Sixth Amendment guarantees the right to a trial by jury, although it does not mention a unanimous verdict. But the Supreme Court has held that a unanimous verdict is included in that guarantee — in federal trials. State trials, the court has held, are a different matter, and the court has declined to impose that constitutional requirement on the states based on the equal protection clause of the 14th Amendment, although it has done so for other rights guaranteed in the U.S. Constitution, including the Second Amendment right to keep and bear arms.
A terrible idea, even if left to states to decide for themselves whether they wish to adopt the federal unanimity requirement? That’s one issue, but the editorial doesn’t stop there, In fact, this is merely the preface to its real point.
Secondly, both Oregon’s and Louisiana’s non-unanimous verdict rules originated in attempts to limit the ability of minority viewpoints to sway jury verdicts.
The non-unanimous verdict clearly facilitates conviction, which would make it a terrible thing for defendants. But is this “meteor strikes earth, women and minorities most affected”? What if Oregon changes its jury rules so that only unanimous verdicts were required in the trial of minority defendants, putting aside that this would be facially unconstitutional? Is it beneficial to reform to cast every issue as a discrimination problem?