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Monday, May 14, 2007
Unanimous Juries as "Soft on Crime"
Thanks very much for having me here.
A few months ago, my colleague (and former military judge) Rob Holland gave a talk about his very interesting article, Improving Criminal Jury Verdicts: Learning From the Court-Martial, 97 J. Crim. L. & Criminology 101 (2006). Among other things, Rob explained how in the military (as in felony cases in Louisiana and Oregon), juries need not be unanimous to convict a criminal defendant. I'm not sure this is a good idea, though I leave it to Rob's article and other smart people to address that issue. What I'm more interested in is a simple preliminary question. Given that the Supreme Court authorized non-unanimous juries over three decades ago, why haven't more states adopted this framework? If legislatures are so eager to be tough on crime, and if prosecutors (who hate to lose a conviction by one or two votes) have a remotely effective lobby, why is it that states have not moved to abolish the unanimity requirement? Could it be that our society is so enamored with the idea of a unanimous jury that the unanimity requirement is immune from legislators' desire to be tough on crime? I'm not sure I buy that explanation, but I'm having trouble offering a better one. Any thoughts?
Posted by Adam Gershowitz on May 14, 2007 at 12:06 PM in Criminal Law | Permalink
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Comments
For the reasons everyone has offered, I understand why politicians would be reluctant to adopt the UCMJ approach which eliminates hung juries and makes life tougher for prosecutors in certain cases. What I have more trouble understanding is why legislatures don't simply adopt the Oregon and Louisiana models which make convictions easier while still preserving hung jury and re-trial options for prosecutors. Is it just that legislatures have a sense of fairness against making this change? Perhaps I'm too cynical, but I just have trouble accepting that explanation.
Posted by: Adam Gershowitz | May 15, 2007 2:53:04 PM
One would expect at least two different pro-defendant effects of the unanimity requirement for conviction. (Rob Holland may well talk about both in his article.)
First, it increases the likelihood of a hung jury in "marginal" cases where the evidence is closely balanced.
Second, it makes jury nullification of unpopular laws more feasible. "It only takes one."
Though I'm skeptical whether encouraging nullification is why state governments retain the requirement.
Posted by: Mike O'Shea | May 15, 2007 1:47:40 PM
Responding to my colleague Adam Gershowitz' very reasonable question: "If legislatures are so eager to be tough on crime, and if prosecutors (who hate to lose a conviction by one or two votes) have a remotely effective lobby, why is it that states have not moved to abolish the unanimity requirement? Could it be that our society is so enamored with the idea of a unanimous jury that the unanimity requirement is immune from legislators' desire to be tough on crime?"
Ethan & Dave in their prior comments are completely accurate in observing that the court-martial jury not only CONVICTS on a super-majority (2/3d) vote, but also ACQUITS automatically when any number of jurors greater than one-third of the panel members refuse to vote for guilt; additionally, pls note that every military juror votes by casting a secret written ballot. So military prosecutors never get a hung jury or the consequent second chance. In my experience as a military trial judge (ten years), the military jury does not hesitate to acquit if unconvinced of guilt, and I think that many civilian practitioners who have defended felony charges at courts-martial will tell you that the military requirement for every juror to vote in secret, in writing, on each separate count is a tremendous safeguard for the defense.
One quick additional comment: I presented my Northwestern paper to a group of Texas trial practitioners at a state bar section gathering recently, and many of them commented to me that prosecutors love the opportunity for a hung jury & retrial in the tough cases, precisely because the prosecution has been able, in the first trial, to scope out the defense case strategy; these folks surmised that many prosecutors go into politics, and would be loathe to give up the present "unanimity or hung jury" approach.
The Oregon & Louisiana schemes do NOT have the default acquittal. If 10 of 12 jurors must agree to convict, and the vote deadlocks at 9-3 for guilt, the OR/LA result is a hung jury, not acquittal, because both states require the same minimum number of votes to reach ANY verdict. Only the UCMJ has the default result of Not Guilty.
Rob Holland, South Texas CL, Houston
Posted by: Rob Holland | May 15, 2007 1:45:46 PM
I haven't had a chance to read Rob Holland's article yet, but a key point some readers might not be aware of is that a military trial panel (they're NOT juries) that fails to convict results in an acquittal. For non-capital cases, a court-martial requires only a 2/3 vote to convict, but there are no hung-juries. If the defendant gets 1/3 + 1 vote that he's not guilty, the game is over and he is acquitted. So is anyone surprised that law and order folks don't want to adopt the military system? A few hold outs for acquittal can potentially be worn down over time in a conventional jury system.
Posted by: Dave Glazier | May 14, 2007 10:53:48 PM
Not that I think this does much to help explain the phenomenon -- but there is a corrolary to making it easier to convict through a 10-2 decision rule: it is also easier to acquit, since virtually all proposals to change the decision rule maintain symmetry. The law & order types might see it as a wash (even though it is almost a certainty that changing the decision rule to 10-2 would result in more convictions rather than more acquittals).
Posted by: Ethan Leib | May 14, 2007 2:21:11 PM
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