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ABA asks Supreme Court to extend jury unanimity nationwide

The American Bar Association filed an amicus brief June 18 with the U.S. Supreme Court, seeking declaration that the U.S. Constitution requires a unanimous jury verdict in felony criminal cases in all 50 states.

Until this year, only two states — Louisiana and Oregon — allowed split-jury verdicts. Last November, Louisiana voters approved a state constitutional amendment that requires the unanimous agreement of jurors to convict individuals charged with felonies, rather than the previous requirement of at least 10 of 12 jurors. The new rule took effect Jan.1, and does not apply retroactively.

In its brief, the ABA supported a petition of a Louisiana man who was convicted of second-degree murder in 2016 by a 10-2 verdict. He contends the Constitution’s 14th Amendment incorporates the Sixth Amendment guarantee of a unanimous verdict.

In its brief, the ABA noted that it has “long recognized that a requirement of jury unanimity in criminal cases is fundamental ... and is essential to maintaining public confidence in the criminal justice system.” It also argued that unanimity “protects dissenting voices in the jury room because it requires that every point of view be considered.”

In 1968, the Supreme Court found that the Sixth Amendment right to a jury trial applies to the states through the 14th Amendment, except in cases of very minor crimes. Four years later in Apodaca v. Oregon, the justices found that the Sixth Amendment required unanimous juries to convict persons in federal criminal trials, but that the 14th Amendment did not extend that requirement to state criminal trials.

But earlier this year, the justices ruled unanimously that the Eighth Amendment’s excessive fines clause applies to the states under the 14th Amendment’s due process clause. In its brief, the ABA used this ruling to argue the Supreme Court should overrule the Apodaca decision. The ABA brief noted that while five justices then concluded the Sixth Amendment did not require unanimous jury verdicts in state courts, there was not a clear-cut majority opinion.

“The court, quite rightly, does not often overrule its precedents, but the status of Apodaca as a precedent, other than the bare outcome, is doubtful,” the ABA brief said.

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