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Monday, March 18, 2019

The Triumph of Jot-for-Jot

Today the Supreme Court granted certiorari in Ramos v. Louisiana. The petition asks the Court to extend the Sixth Amendment's unanimous jury requirement to the states and to overrule Apodaca v. Oregon, which rejected that aspect of incorporation. The Court will almost certainly overrule Apodaca (perhaps unanimously).

Ramos will mark the end of a long debate within the Court. Decades ago when incorporation began, some Justices took the position that the Court should not impose the provisions of the Bill of Rights to the States jot-for-jot (in other words, identically). That view has declined over time, and Apodaca is its final vestige. In both McDonald and Timbs,the Court described Apodaca as an anomaly. Next Term the anomaly will disappear.   

Posted by Gerard Magliocca on March 18, 2019 at 08:14 PM | Permalink


Just for more details and more comprehensive analysis of Ramos v. Louisiana,can be found here:


Posted by: El roam | Mar 19, 2019 4:48:56 PM

I have left here a comment , with a link to the case of Apodaca , but the comment has disappeared , so again :


Posted by: El roam | Mar 19, 2019 3:33:04 PM

By the way,he who wants,can reach the case of Apodaca,here:


Posted by: El roam | Mar 19, 2019 3:31:01 PM

Donald Caster,

the issue here, has nothing to do with jury per se, whether grand, whether petit one,and even not incorporation.But only one:

Whether jury must reach conviction by a less- than - unanimous jury or not. The constitution, is silent in this regard. The issue of the fifth amendment, has to do with burden of proof and guilt beyond reasonable doubt. If the jury must reach unanimous decision,the argument(as in the case of Apodaca)is that it does contradict the doctrine of beyond reasonable doubt(what had been rejected at the time, by the Supreme court).

Posted by: El roam | Mar 19, 2019 3:25:28 PM

Not to quibble, but the Fifth Amendment's right to grand jury indictment is also unincorporated.

Posted by: Donald Caster | Mar 19, 2019 2:31:29 PM

Just clarification to my comment:

The Supreme court held ( against " beyond reasonable doubt " ) in the case of " Apodaca " that, I quote:

" the rule requiring proof of crime beyond a reasonable doubt did not crystallize in this country until after the Constitution was adopted "

Yet, this is not really the issue. The issue is the more fundamental one, and it is : the burden of proof. Concerning the latter, it is not only deeply rooted ( for otherwise, with less than minimum effort, every innocent person, would be found guilty whatsoever, and that has clearly to do, with due process)but,the fifth amendment, states clearly( among others )here:

" nor shall be compelled in any criminal case to be a witness against himself, "

That is to say, that the burden of proof, as dictates the Constitution, is upon the prosecution. Must be concluded so.For the defendant can simply " sleep" all along the trial, and the prosecutor would have to move hectically here and prove guilt.This is representing per se, the whole issue of burden of proof, as stated in the bill or rights.


Posted by: El roam | Mar 19, 2019 10:00:31 AM

Very interesting issue. But first, the fourteenth amendment, must incorporate that issue ( dictated by the sixth ).That is because of the relevance of the issue. For as stated in the fourteenth, the central fundamental principle is " due process ", and the sixth dictates clearly that : "

" In all criminal prosecutions......by an impartial jury "

Yet, impartial and jury, doesn't imply necessarily conviction by a less- than - unanimous jury or not. This is because of another strategic legal standard in criminal cases :

Conviction based on : " beyond reasonable doubt ". For the latter, means that a doubt can be formed finally, and yet, conviction is warranted. So, if this is the standard, that is to say, that, it does imply that the jury may disagree ( having certain doubt ). If jury must conclude unanimously, that does imply, that we don't have any room for doubt. It must be totally conclusive.

So,in sum:

Jury, due process, burden of proof, that has certainly to do with due process ( otherwise, the defendant for example, would bear the burden of proof at first place, this goes against due process as such) while the level of agreement / disagreement of jury, surly has to do with:

Burden of proof, and due process, and anyway : beyond reasonable doubt in criminal cases.

And the ruling in " Apodaca " that " commonsense judgment " is the issue, is wrong. But, too complicated right now.


Posted by: El roam | Mar 19, 2019 8:23:51 AM

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