Overturning Apodaca v. Oregon Should Be Easy: Nonunanimous Jury Verdicts in Criminal Cases Undermine the Credibility of Our Justice System

Abstract

This Article argues that criminal convictions in state courts should be subject to the same unanimity requirements that the Sixth Amendment imposes on federal criminal convictions. Part I of this Article provides an overview of the U.S. Supreme Court’s jurisprudence on jury size and nonunanimity. Part I includes a discussion of Apodaca v. Oregon and Johnson v. Louisiana, the Court’s 1972 decisions holding that the Sixth and Fourteenth Amendments did not require jury unanimity in state court criminal jury trials even though federal law requires that federal juries must reach criminal verdicts unanimously. This is followed by a summary of many of the recently denied certiorari petitions that have pressed the Court to reconsider the jury unanimity issue in light of changing Sixth Amendment jurisprudence and social science evidence. Part II explains how the Court’s recent jurisprudence contradicts its 1972 Apodaca and Johnson rulings under the doctrine of incorporation. Specifically, applying the Court’s 2010 McDonald v. City of Chicago incorporation approach to Oregon’s and Louisiana’s nonunanimous jury law signifies that overturning Apodaca should be easy, and in fact indicates that the Court should incorporate the few unincorporated provisions of the Bill of Rights. In addition to the incorporation doctrine, Part III argues that nonunanimous verdicts undermine the reasonable doubt requirement of the right to a jury trial and that the Court’s own case law prior to and since Apodaca and Johnson confirms this right to unanimity, which ensures that the burden of proof beyond a reasonable doubt as a component has been met. Part IV sets forth the current research that shows that unanimity is essential to the purposes of the fair cross section and complete deliberation requirements of the Sixth Amendment. Part V addresses how nonunanimous verdicts contribute to convicting innocent defendants, and Part VI discusses how nonunanimous verdicts disproportionally affect both minority jurors and minority defendants in Oregon. Finally, this Article concludes by recommending that the Supreme Court overturn Apodaca v. Oregon, as the law and current research supports that unanimous juries should be required in all criminal cases. Moreover, even if the Supreme Court does not act, Oregon’s citizenry and Legislature should support amending the state constitution to abolish majority verdicts in all criminal cases. Such an amendment would serve to protect innocent defendants and end a rule that was founded to silence minority viewpoints.