JURY UNANIMITY (Update)

The issue of jury unanimity is tied to, among other things, jury size. The Supreme Court has allowed states to deviate from the historical norm of twelve-person juries, and has upheld criminal convictions by juries composed of as few as six persons. In criminal cases, where juries were intended to protect defendants against oppression and governmental overreaching, allowing a jury composed of less than twelve persons to convict by less than unanimous agreement may present a dangerous slippery slope. But there may be stopping points along this slope. Unlike the number six, majority rule and supermajority rule have unique and stable mathematical properties. Surely, everyone would agree that there is a difference between majority and minority rules, and no one would permit conviction of a defendant by less than a majority. Majority and supermajority rules also govern political institutions other than juries, such as legislatures and appellate judicial panels, to which juries were analogized by the Framers. If jury service is similar in essence to voting and other forms of majoritarian political participation, then the historical tradition of unanimity may not be sacrosanct. Moreover, unanimity traditions at the time of the framing of the Constitution were easier to justify given the homogeneity of jurors at that time. It bears recalling that initially only white men could serve as jurors. As juries have become more racially and sexually diverse, a rule that gives each individual an absolute veto seems less necessary, and perhaps unwise. The challenge for those who advocate a departure from unanimity, of course, is to find a way to ensure that majorities on juries listen to and in good faith consider the views of minorities whose votes can be overridden. Minority vetoes may be problematic; however, minority voices need to be heard.

Vikram D. Amar
(2000)