Supreme Court says criminal convictions require unanimous juries
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> In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Left me wondering where the right to unanimous juries comes from, since it doesn't seem to be mentioned in the actual amendment, and the article doesn't really tell me. Even SCOTUS blog, unless I missed it, doesn't say.
Thankfully, there's Wikipedia[1]:
> Originally, the Supreme Court held that the Sixth Amendment right to a jury trial indicated a right to "a trial by jury as understood and applied at common law, and includes all the essential elements as they were recognized in this country and England when the Constitution was adopted." Therefore, it was held that juries had to be composed of twelve persons and that verdicts had to be unanimous, as was customary in England.
The next paragraph was a bit odd in light of my question:
> When, under the Fourteenth Amendment, the Supreme Court extended the right to a trial by jury to defendants in state courts, it re-examined some of the standards. It has been held that twelve came to be the number of jurors by "historical accident," and that a jury of six would be sufficient, but anything less would deprive the defendant of a right to trial by jury.
Sure, but what prevents us from calling unanimity a historical accident as well? (Still, personally, I think having to have 12 — or maybe just 6 — people come to agreement on a conviction is for the better. I'd rather let a few guilty people go free than convict an innocent one.)
[1]: https://en.wikipedia.org/wiki/Sixth_Amendment_to_the_United_...
There is a quote in the court's opinion that using historical precedent "promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process".
I agree with you, beyond a reasonable doubt should mean all jurors agree.
Otherwise, US States have a lot of flexibility in how they handle non-criminal cases.
Estimates of wrongful conviction are between .13%-5% (wikipedia, miscarriage of justice), however the main thing that trial by jury affords is transparency and perception of fairness, since you are convicted by your peers and not some politician with questionable incentives.
Further, the prosecutor has real power that far outweighs the power of the accused. Juries imperfectly provide an offset to that power imbalance.
On the fourth page of Gorsuch's opinion he summarizes the basic argument: "Wherever we might look to determine what the term 'trial by an impartial jury trial' meant at the time of the Sixth Amendment's adoption--whether it’s the common law, state practices in the founding era, or opinions and treatises written soon afterward--the answer is unmistakable. A jury must reach a unanimous verdict in order to convict."
I think your observation is correct--the logic of Williams v. Florida contradicts the logic of this new opinion. Before Williams v. Florida, and as that opinion honestly summarizes, 12 members was always required, solely based on historical practice. So Williams opposed the fundamental reasoning of historical precedent and overturned actual Supreme Court precedent; it looked to the fundamental purpose of the jury trial and whether the size was consistent with that purpose. For Ramos (or at least Gorsuch), consistent historical practice is the most important and even dispositive evidence of how a jury verdict must be composed, regardless of whether it was accidental rather than deliberate, and regardless of whether a non-unanimous verdict achieves the purpose; it seems to return to the pre-Williams reasoning. To the extent purpose mattered, it was the purpose of the deviations from unanimity, and that purpose was preserving white supremacy.
A second way to look at it would be to consider that the accused has presumptiom of innocence,therefore the juror's purpose is to remove that presumption. If there is no unanimity then you're saying it is better to punish the guilty even if some innocents get punished in the process. If jurors represent society then one juror's opinion in a 10 person jury represents 10% of the population.
The English common law, which we inherited our own traditions from and much of which is still applicable today, is less a “law” in the sense of a set of decrees from a King or statutes passed by a parliamentary body and more a long line of traditions and community standards that change slightly over time according to a few principles, with the facts and circumstances of the time used to inform the judgement and sentencing.
Without a legislative body, you could go on evolving the traditions over time to cover any number of new and unique circumstances simply by using the existing body of law as a guideline.
So why 12 Jurors and why must they be unanimous? Because it is tradition, and the principle of stare decisis has kept it that way for a very long time. Can traditions change? Yes, but stare decisis makes it unlikely that any sort of arbitrary changes will be made and upheld. Think of it as the legal equivalent of inertia. The law stays the same given the same facts and circumstances unless changed by an outside force, usually a statute in modern democracies with common law legal systems.
The upshot of all of this is to make the practice of law and process of legal proceedings more predictable and arbitration less arbitrary if you’ve done your homework and can tie your case to a previous case, and it doesn’t even necessarily have to be a case from the same jurisdiction if it’s from the same legal tradition and not incompatible with the existing body of law in the jurisdiction the case is within. In contrast, whenever the legislature passes a new Bill and it’s signed into law, you have to study how this will affect new cases going forward rather than simply being able to rely on past precedent. This allows more instantaneous changes to new circumstances but also allows more arbitrary laws to be passed whose effects on people and commerce are not well understood until they are used in litigation.
That's not how the constitution works - supermajorities (55%, 2/3, 75%) exist in many areas around the world, so while majority and unanimity may be reasonable options, it's arguable that other points may also be reasonable.
I don't see why it's the only reasonable option. Consider if we discover that 90% agreement has the exact same false conviction rate, but a much better true conviction rate. That would justify a 90% majority over unanimity.
Maybe unanimity is maybe the only reasonable option when you don't have any other informatoin, but that bar can move once you have a better understanding of the phenomenon.
You can't guarantee a 0% false conviction rate even when requiring unanimity. That's why I said if the false conviction rate was the same, but the true conviction rate was better, clearly that's a better scenario.
So while I understand your point, as you stated, we have no other information and as such the numbers we would need to validate it simply don't and won't exist.
>> consistently proven
Your argument does not jive.
My argument does not jive only if you are looking for flaw and determined to find it even if it is only semantics.
Best of luck to you in these trying times.
Small data set does not necessarily entail it's not statistically significant.
> So while I understand your point, as you stated, we have no other information and as such the numbers we would need to validate it simply don't and won't exist.
"Won't exist" is a pretty strong claim. I posited but one example where the original claim was false, but I can probably come up with dozens of other scenarios where simple majority or unanimity are clearly inferior as the only two options.
The unanimous requirement was changed by the Criminal Justice Act 1967[1] (the relevant section since repealed) for criminal proceedings and the Jury Act 1974[2] for civil proceedings (incorporating criminal proceedings as well).
It's unclear why the number was originally set at 12 – historical research suggests the Danes set this number when they conquered parts of northern England and subsequent Anglo-Saxon monarchs simply continued it. Perhaps 12 was simply an appealing number, or maybe there were political considerations, etc. — it's impossible to know.
As for why Parliament allowed juries to come to a non-unaninmous verdict in specific circumstances, it appears to have been influenced by the Morris Committee Report of 1965 according to Hansard[3].
Additionally (as mentioned in Hansard above), the Scottish legal system have had majority verdicts for juries for a long time prior to the change to England and Wales in 1967 so that may have had some influence on the Government of the day implementing a change to the jury system.
Part of their concern was also down to "jury nobbling" - they felt that if one or two people were "nobbled", it would be fair to allow the remaining 10 to come to a verdict effectively disregarding the nobbled pair (this is also raised in the Hansard report above).
-- [1] http://www.legislation.gov.uk/ukpga/1967/80/section/13/enact...
[2] http://www.legislation.gov.uk/ukpga/1974/23/section/17
[3] https://api.parliament.uk/historic-hansard/commons/1967/apr/...
Was this consideration discussed by the supreme court in the USA?
(edits - no results ctrl-f for "conspiracy", "intimidation", "mafia", "organized" in https://www.supremecourt.gov/opinions/19pdf/18-5924_n6io.pdf )
Juries will generally be majority white meaning the opinion of the black jurors would be discounted often.
Neither solution is ideal, and this topic interests me greatly, it seems very similar to the questions of fairness and bias in statistics / ML.
People should be judged by a fair impartial jury. I have no idea how to ensure this. Race is one known factor. All white or all black juries are somewhat likely to be partial in the same way and thus not give a true result (as if that is possible) so you want a mix that reflects the community, and also has enough that the one other person isn't intimidated. Easy to say, hard to do.
In addition, we are supposed to be judged by a jury of our peers. Considering minorities make up ~40% of the population I don't think its a stretch to say at least 20+% of the jurors should be a minority.
The bar to convict should be high and this helps to ensure that. Rather 10 guilty men go free than one innocent man go to jail.
"Why should black people be judged by black people only?" Is a racist strawman argument. I am saying black people should not be judged by white people exclusively, as can happy if every jury is majority white.
How often do jurry opinions actually split purely along racial lines?
https://www.wwno.org/post/history-louisianas-non-unanimous-j...
Juries are often sequestered meaning that by the time you figure out what to try you can't get at them.
Of course none of the above is perfect. You can get around them if you put in enough effort. Which is why it is a tradeoff as others have said.
We do, however, have the ability to dispense with a jury entirely and have a single judge decide on the case. I suppose that's not much better: a single professional jury of one versus one of twelve.
It seems like difficulty in intimidating jurors would scale linearly, O(n)
Yes, it means that guilty people will go free. But relaxing the constraints of what "convicted" means that by definition there will be innocent people convicted by 7-11/12 juries.
If courts are unable to punish well connected criminals then it's difficult to keep a healthy democracy.
I'm not sure what the solution is, but it seems like there should be some redundancy in the system.
"It is better that ten guilty persons escape than that one innocent suffer."
In the language of statistics, it is a trade-off between precision vs recall. In general, we cannot create a system that makes sure no innocent is behind the bars (other than not convicting anyone).
I believe this is by far the best way to handle it as well, but I did recently read a book that brought up an interesting point.
The line above is almost always the justification given. But, what if those ten were murderers, and by letting those ten escape, each one ended up killing another innocent? Now in your efforts to stop one innocent from going to prison, ten innocents have died, versus the one that would have been falsely imprisoned otherwise.
...
Utilitarian arguments (to which I adhere to, in general) are hard. There are so many consequences, including ones that are not immediate.
With putting people under arrest we often go for recall. Yes, it is a nasty experience for an innocent, but at the same time, it may avoid the case you mentioned.
Which long-term consequences? First, just because someone is a murderer, does not mean he/she is going to go on a rampage. Second, if precision is high, people can trust the system in the long term, and give some feeling of safety. Compare it with a lynch mob scenario, where it is easy to mishandle justice (and, long term, a lot of innocent are at risk).
This depends to a large degree on the nature of the crime, as well as the implied reduction of risk of committing them. Abolishing criminal sentencing altogether would clearly reduce the number of innocent people convicted, but few would argue it would result in a net reduction in social harm.
Genuinely interested whether anyone's done some sort of study on whether dissenting jurors tend to be more 12 Angry Men style heroes who focus much more carefully than their peers on the standards of evidence rather than prevailing prejudices against the alleged perpetrator, or more stubborn contrarians whose prejudices against evidence presented by certain types of people or in favour of certain types of defendant haven't been uncovered by the jury selection process.
I'd thought said BS was largely gone from the books. Well, regardless how how much BS still remains or doesn't, I'll happily take one more bit of it being removed.
It basically was by the time this case was argued. But there was sufficient interest in how to rule on it (see Thomas' concurrence with the judgement only, and Kagan's dissent). The 6-3 split was pretty fractured as evidence for why they wanted to hear it. It is no surprise Gorsuch wrote the court's opinion; he has a particular disdain for things that impede civil liberties.
The split in the court is because some justices are worried about undoing something that has been used for more than a hundred years and upsetting a ton of cases.
> The decision was widely expected and will have limited impact nationwide, as the only two states that have allowed split jury convictions in recent years are Louisiana and Oregon. Those two states could now face more than a thousand requests for retrials, according to documents they submitted to the justices.
https://www.scotusblog.com/2020/04/opinion-analysis-with-deb...
Slight more contentious is that it seems not unreasonable to expect unanimity from the Supreme Court itself.
Not really refuting your point, and definitely thinking about it in specific contexts. For example a consistent bad faith actor on a team at work can expect to eventually be removed from the team, and avoiding hiring these people (or bringing them into decision making processes) is one of the goals of a good hiring process. It’s usually framed as “culture fit”, to drop another euphemism.
Neither side is likely be in love with the jury they get, but adversarial process introduces the fairest outcome we could expect.
> Learning to negotiate in a non-adversarial way is an undervalued skill.
Absolutely. But another important systematically undertaught skill is how to operate when facing bad actors, narcissistic and such. These people destroy teams and institutions, precisely because most people dont know how to deal with them and most advice about good communication pretends they dont exist.
Aye. Do you(or anyone) have any resources/reading suggestions on how to be effective with this category of interaction? Particularly when it is coming from someone in a position of relative power? Another variant that seems distinct from straight narcissism—although it may be related or just a different manifestation—are people who, for lack of a more graceful way of saying it, only hear what they want to hear.
But i guess part of this also relies on the make up of the jury. If people in general is more likely to convict easier, it might make more sense to adjust that by requiring them to unanimous, in the reverse situation you might not want to require that because it becomes almost impossible to convict anyone.
The "new" system is a variation of what has long been used for non-jury cases, with some variation: A panel of judges where a minority are professional, legally trained judges and the majority are "lay judges" drawn from effectively the same pool as the juries. The total number of judges on the panel depends on the type of case and potential length of a sentence. They all deliberate together.
https://www.supremecourt.gov/opinions/19pdf/18-5924_n6io.pdf
Once the police like you for a crime they’ll likely find a way to make it stick. Even if it’s just circumstantial. Most people plea.
Lawyers are highly educated performance artists. Prosecutors are pretty persuasive.
Look at DA Larry Krasner in PA. He’s fighting corruption.
Also, does anyone know where hung juries fit into this? You would think that you're not-guilty until you're proven guilty, so what is this weird 3rd-state of "not guilty and also not not-guilty" based on in the 6th amendment?
They may be referring to felonies, but yeah the wording seems strange to me as well.
"Additionally, La. C.Cr.P. art. 782(A) provides in part that “[c]ases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict.”
If the Court said nothing of other ways of classifying crimes, then that is all that means. It doesn't mean that it's constitutional, it's just that the court doesn't rule on cases and controversies that are not before it.
There is a lot case law looking at which crimes are considered serious. In some cases, crimes explicitly considered non-serious in one jurisdiction may be considered serious in other jurisdictions.
As far as hung juries goes, the unaninmity cuts both ways: the entire jury has to agree on acquital for that to be the trial outcome as well. In the case of a hung jury, the whole process failed to come to a conclusion, so everything is the same as if the trial had never occurred: the defendant is still charged and unconvicted, and still has the right to a speedy trial. Because the first trial was voided entirely, double-jeopardy doesn’t apply.
"... nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; .."
On the face of it it seems like complete nonsense to say that you're not placed in jeopardy of life or limb until after the verdict is delivered. Then why were you sitting in that seat being tried for a serious crime? Were you just chopped liver until the jury delivered their verdict? And suddenly when they acquit you then it turns out your life were(/are) was in jeopardy after all? I feel like I must be missing something...
As for the opinion, I guess I can understand that if that's the case, but I'd be a little bit surprised if they got a case about non-serious crimes and went "just kidding, the same reasoning applies here too".
You are correct that one could argue that a hung jury is equivalent to acquittal but that isn't current caselaw.
It does make me curious how often the state re-tries someone after a hung jury. My guess is there is a large fall-off there. I'm also curious how many times the state can retry the case attempting to reach a verdict. I'm not sure if there is any caselaw covering that.
> I’d be a little bit surprised if they got a case about non-serious crimes and went “just kidding, the same reasoning applies here too”.
I wouldn’t be surprised at all, except at such a case making it all the way to the top. A lot of research effort goes into drafting these judgements, because they are usually quite long-lived. Any material relating specifically to the treatment of lesser crimes was likely ignored during the initial phases because it was out-of-scope.
It’s not just the outcome, but also the reasoning that sets precedent. Any appellate judge is free to draw parallels between the facts here and the facts of the case they are adjudicating, especially if this case is cited by one of the parties (presumably the defence). It’s then the job of the prosecution to describe why this ruling shouldn’t apply, which feels like an extremely hard task given the reasoning presented.
> Gorsuch was joined in part by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Brett Kavanaugh.
I'm sure someone with more experience would see how it makes sense, but as someone who isn't well-versed in the workings of the Supreme Court, I'm surprised that set agreed on something.
Kagan on the dissent side is the only interesting thing for me; I would have liked to hear her thoughts, but she just joined Alito.
This is why the "conservative" vs. "liberal" wing of the court is a bit of a red herring in a lot of cases. Gorsuch and Kavanaugh are both very "liberal" when it comes to individual liberties of people being infringed on by the government.
I feel like my education in government had a strong bias in philosophy versus economics. That is, principles versus effects. In the practice of government, the bias flips.
I am curious (a serious question) what better system you have in mind to replace juries.
This feels to me like it gets most of the benefit of both a jury and of professional judges. It avoids a lot of the issue of whether or not the lay judges understand the jury instructions and the legal aspects they're asked to judge on, but also ensures the prosecutor does need to convince both the lay judges and the professional judges for a conviction.
It's not really that they are "free to acquit" either as much as that there is no mechanism for preventing it.
The issue is controversial enough that the several circuits have made it clear courts can present jury instructions designed to minimize it and/or prevent the jury from being made aware of the ability.
And this ability has also been extensively abused, e.g. for racist purposes. While it has also been used to attack unjust laws, I'm not convinced it is worth the risks.
In the US, if you do not want a jury trial, you are free (and encouraged) to do so and settle for a bench trial, where everything is decided by a judge. I think that gives you the best of both worlds as a defendant.
I'm not saying you're wrong, but here in the US we can be pretty certain that 12 random people are not corrupt. You just have to trust that judges aren't corrupt.
I have dabbled in some areas of law that are 'bubbles' with specialized lawyers and no juries (family law, bankruptcy, landlord-tenant). It doesn't take much to disrupt them with conventional good lawyering because most people in those practices areas, judges included, are in a rut.
Criminal law has some similar problems mostly at the low level. But it is usually the prosecutors and the defense attorneys colluding to quickly pass cases through the system. The last thing most judges, prosecutors, and defense attorneys want is a jury trial because then they would have to do their job.
From the outside I had the impression successful defense attorneys would try to convince the jury by confusing them, which seems quite easy because the jury usually isn't educated in law.
Also, even though good research about jury deliberation is limited because they are conducted in secret, I recall (from memory) that research shows juries are pretty good at detecting when someone is trying to deceive them.
Further, in trials, the opposing party gets a say in the matter too. If one side says something deceptive or deliberately confusing, competent lawyers for the other side will point this out and attempt to correct the record, possibly turning the jury and the judge against the deceptive lawyer.
I am lawyer and I think trial by jury is one of the most important features of democracy and freedom ever invented.
Also, judges presiding over jury trials can set aside jury conclusions for a variety of reasons. And higher appellate courts can do so as well.
Among other things, appellate courts look at the application of those facts to the law. Appellate courts also can review if the facts determined by the jury (or a judge in non-jury cases) are unreasonable, whether fair procedures were followed -- including jury make-up or jury process.
When i served jury duty, our discussion of guilt meandered into the philosophy of fundamentally unknowable universe (much to my dismay). how could anyone really know what happened unless we observe it with our own eyes?
I brought up the victim's seven stab wounds. Apparently evidence like that is subjective to some...
IMO: unanimous is too high a bar.
With a criminal conviction we're talking about exercising the state's monopoly on violence and coercing an individual to give up their liberty and freedom.
There shouldn't be a differing opinion on guilt. If there is, the state hasn't proven the subject's guilt beyond a reasonable doubt. If there is reasonable doubt, the person should be found not guilty.
It was a young man being charged with a list of crimes, the most serious being negligent homicide. I went into it thinking "oh boy, this kid must be guilty" and by the end, I wished we had the ability to convict the prosecutor of negligence. The kid did nothing wrong.
But the initial vote was 11 to 1 not guilty. The one guilty was a retired guy, and to this day I believe he was just relishing having something to do because he kept us there for an extra day trying to convince him that the kid wasn't guilty. He didn't even have a good reason for the guilty vote either, which was the worst part. Eventually he relented and the kid went free.
The moral of my story is, having a different opinion isn't necessarily a good or useful thing on a jury.
I would bet that the principle the parent embraces is not "states have a right to exercise autonomy" but rather "states have a right to exercise autonomy on those things I agree with".
You know, like when people advocate for states' rights, except when a state decides to do something like narrow the right to handguns, or environmental regulations, or something like that.
I thought that we agreed as a country that things guaranteed in the Constitution applied regardless of what state.
Now, it is likely the case that defacto states do not have that ability. Since America broadly follows rule of law, I think it is highly likely that this decision will be enforced.
According to the supreme court, it was never legally the case that the states had that right, and the states will have to decide how to respond with respect to the incorrectly convicted people. But many people were put in prison on the basis of majority verdicts and this decision doesn't give them their time served back - it only changes the future. So the op is right to consider that something has changed and states are likely to be unable to do something that they used to do.
It is surely not a hill I would want to die on, and I surely do not think a state should have a right to preserve white supremacy.[] It seems we all knew what the right to jury trial meant, and conservatives have been arguing for the court to consider the originalist meaning.
[] I don't think a majority verdict necessarily needs to have any relationship with white supremacy, and I'm aware that other countries have found other paths. I also don't think procedurally valid court cases need to have unanimity. But if you sign up for a constitution that guarantees convicts a jury trial and you demand conservative interpretations what outcome do you really expect?