Jury unanimity in the UK and US – what is the verdict?

“Accused of a serious crime, Evangeisto Ramos insisted on his innocence and invoked his right to a jury trial. Eventually, 10 jurors found the evidence against him persuasive. But a pair of jurors believed that the State of Louisiana had failed to prove Mr Ramos’s guilt beyond reasonable doubt; they voted to acquit.”

So began the US Supreme Court judgment in the case of Ramos v Louisiana[1] in the last week of April 2020. The court considered whether the Sixth Amendment of the US Constitution – which guarantees the right of a citizen accused of a serious crime to be tried only by an impartial jury – implies a requirement that the jury’s verdict be unanimous. In the same week, politicians, judges and lawyers in the UK were musing whether, at a time when jury trials had ground to a halt due to COVID-19, juries were required at all. The US Supreme Court confirmed (ironically by a 6-3 majority) that in order to convict an individual of a serious crime, the Sixth Amendment requires unanimity.

In reaching this decision, the Justices disagreed with one another in spectacular fashion, exposing fractures not only between the majority and the dissentient minority, but also amongst the majority. Giving the lead opinion of the majority, Justice Gorsuch criticised his dissenting colleagues for refusing to overturn the 1972 Supreme Court decision in Apodaca v Oregon, which had said that states were not obliged to follow the requirement in federal law mandating that a federal jury trial required a unanimous vote to convict a suspect on a criminal charge.[2] The court was split as to whether Apodaca was a valid precedent and, even if it was, whether it could be overturned under the doctrine of stare decisis (the doctrine of precedent). Three of the majority of six found that it was not a valid precedent; the remaining three in the majority found that it was a valid precedent, but one that could nonetheless be overturned. Whilst the dissentient minority agreed with the majority that the Sixth Amendment protects the right to a unanimous jury verdict, they still upheld Mr Ramos’s conviction by a non-unanimous jury because they regarded Apodaca as binding under their interpretation of stare decisis.

Justice Gorsuch was scathing about the dissenters’ refusal to overturn what they accepted was an ‘admittedly wrong’ precedent:

“Every judge must learn to live with the fact he or she will make some mistakes; it comes with the territory. But it is something else entirely to perpetuate something we all know to be wrong only because we fear the consequences of being right.”

Justice Alito was no less scathing in his dissenting reply:

“The doctrine of stare decisis gets rough treatment in today’s decision. Lowering the bar for overruling our precedents, a badly fractured majority casts aside an important and long-established decision with little regard for the enormous reliance the decision has engendered. If the majority’s approach is not just a way to dispose of this one case, the decision marks an important turn.”

The immediate beneficiaries of this legal war of words concerning stare decisis are those defendants convicted by non-unanimous verdicts in Louisiana and Oregon (the only two states to accept non-unanimous verdicts after Apodaca) who have yet to exhaust their appeal rights. They will now receive a retrial.

Putting aside the technical debate about stare decisis, criminal lawyers in England will be interested to learn how the US Supreme Court justified its finding that the Sixth Amendment requires unanimity. Justice Gorsuch looked across the Atlantic at the historical use of the jury system in England to support his argument that juries should be unanimous in their verdicts, observing that juror unanimity as a cornerstone of the criminal law emerged in 14^th Century England and had been accepted as a vital safeguard protected by the common law. Indeed, even earlier than that, Article 39 of the Article of Barons, a schedule of terms agreed on 10 June 1215 by King John and a group of barons, stated that:

“Those who have been outside the forest are not to come before the forest justices on the grounds of common summonses, unless they are involved in pleadings or [are] pledges. And the evil customs of forests and foresters, of warrens, and sheriffs, and rivers, are to be put right by twelve knights of each county, who should be chosen by the good men of that county”.

By the time the Sixth Amendment was ratified in the US in 1791, the requirement for unanimity in English juries had been well established for over 500 years. Why, then, did Louisiana and Oregon, and subsequently England, depart from the principle of jury unanimity?

The conception of non-unanimous verdicts in Louisiana can be traced back to a constitutional convention in 1898, the purpose of which, according to one committee chairman, was to “establish the supremacy of the white race”. Only a week before the convention, the US Senate had called for an investigation into whether Louisiana was systemically excluding African-Americans from juries. The convention defiantly reacted by creating a rule that permitted non-unanimous jury verdicts, the effect of which was to ensure that African-American jury service was neutered; that African-American juror service would be meaningless because their views could be discounted. The emergence of non-unanimous verdicts in Oregon was no less racist in its origins; it can be traced back to the rise of the Ku Klux Klan in the 1930s and subsequent efforts to dilute the influence of racial minorities on juries.

Unsurprisingly, in argument before the Supreme Court, neither Louisiana nor Oregon disputed that race was one motivating factor behind their historic creation of the non-unanimity rule. Instead, they sought to persuade the court that their contemporary practice of permitting majority verdicts is no longer motivated by race and is not, in any event, unconstitutional.

This argument failed, with the effect that the 50 states of the United States are now undivided again in their requirement that juries can only convict in serious cases if unanimous. In England, by contrast, the position remains that non-unanimous majority verdicts are permitted if the jury is deadlocked 11-1 or 10-2. At first blush this may seem surprising. William Blackstone (after whom the criminal law bible Blackstone’s is named) stated in 1769 that “the truth of every accusation…should….be confirmed by the unanimous suffrage of twelve of his equals and neighbours, indifferently chosen, and superior to all suspicion”. Given these venerable words – and the US Supreme Court’s reliance on the emergence of jury unanimity in 14^th Century England – when did our criminal justice system begin to accept majority verdicts, and what were its reasons for doing so?

Majority verdicts were first introduced by Section 13 Criminal Justice Act 1967. Until then, unanimous verdicts had been required in all criminal cases, even if there were fewer than 12 jurors sitting due to death or discharge.

One problem that arose out of the requirement for unanimity was that if, after extended deliberation, a jury could not agree on whether to find the defendant guilty or not guilty, this would result in a hung jury and the case invariably being tried again. The effects this had on the criminal justice system were palpable: wasted time and increased costs. By allowing a majority vote, the legislators found a way for divided opinions to still result in a decision, and thereby improve the efficiency of the courts.

Hansard from 26 April 1967 reveals another reason for the introduction of majority verdicts. Mr Daniel Awdry (Conservative MP for Chippenham at the time) highlighted “the modern problem of jurors [being] bullied and threatened”.^[3] There was evidence for his supposition; only the previous year, Scotland Yard had launched a number of investigations into attempts to bribe jurors.  In May 1966 it was reported that the “nobbling” of juries had become a serious matter. A bill was therefore presented to Parliament in an attempt to nullify “the corrupt and intimidated juror”.^[4]

Whilst that justification for abolishing jury unanimity may have been sound in the 1960s, it does not hold so much water in today’s criminal justice system. The risk of jury nobbling is still a pertinent concern, but where there is evidence of a “real and present danger” of tampering, even with reasonable preventative steps being taken, Section 44 Criminal Justice Act 2003 permits a trial to proceed without a jury. The main justification for permitting majority verdicts remains the avoidance of wasted time and increased costs incurred in a retrial.

But are these factors still proper justifications for maintaining a system whereby a criminal conviction – that requires jurors to be satisfied of guilt so that they are sure – can be secured by a 11-1 or 10-2 verdict?

Juries are rarely unable to reach a verdict. Research from the Ministry of Justice in 2010 demonstrated that fewer than 1% of all trials resulted in a hung jury[5]. A superficial look at this statistic might suggest that it is extremely rare for a jury to be unable to reach a verdict in a case where they have the option of returning a non-unanimous verdict. However, on closer analysis, the statistic does not support this contention. This is because jurors do not have the option of returning a majority verdict until the trial judge grants it and the judge does not do so until the jury has deliberated for at least two hours and 10 minutes. A more telling statistic would be the frequency of majority verdicts after a jury has been permitted to return one. On this point, there is little meaningful research. Furthermore, it is difficult to assess when and how often majority verdicts happen because they are only recorded where guilty verdicts are returned; another reason why the 1% claim is misleading. Juries return majority verdicts in 19% of all guilty verdicts. [6]

Even if majority verdicts allow for some costs savings and therefore increased efficiency, it is arguable that, as a matter of principle, hung juries are no bad thing for the criminal justice system. As opined by Justice Gorsuch, “are they not examples of a jury deliberating carefully and safeguarding against overzealous prosecutors” by refusing to return a verdict to convict? In other words, there is less risk of a unanimous jury convicting an innocent person, because the requirement of unanimity leads to improved jury deliberations. This concern underpinned the reasoning of the US Supreme Court in Ramos.

Notwithstanding the decision of the US Supreme Court, there is unlikely to be appetite on this side of the Atlantic for a change in the jury system, the effect of which could result in further delays within the criminal justice system, particularly at a time when COVID-19 is already creating mass backlogs in our courts. One recent suggestion to clear the backlogs was to remove jury trials altogether. However, that idea was swiftly ruled out by the Lord Chancellor, Robert Buckland QC, who called the move a ”disproportionate step”, even describing the removal of jury trials as a step ”we would all regret”.

The time has come to ask whether the decision to introduce majority jury verdicts into English law in 1967 should be regarded as a disproportionate step that should be regretted. Part of the original rationale for majority jury verdicts (jury nobbling) is no longer such a concern and, as explained by the US Supreme Court, there are principled reasons for thinking that jury unanimity leads to greater fairness to both prosecution and defence. It is telling that the US Supreme Court in Ramos reached into the English legal past – and not the English legal present – to fortify its own tradition of unanimous verdicts being the only verdicts that can be returned by a jury leading to acquittal or conviction.

[1] 590 U.S (2020)

[2] Apodaca v Oregon, 406 U.S. 404 (1972)

[3] https://api.parliament.uk/historic-hansard/commons/1967/apr/26/clause-10-majority-verdicts-of-juries-in

[4] Ibid.

[5] https://www.justice.gov.uk/downloads/publications/research-and-analysis/moj-research/are-juries-fair-research.pdf

[6] Ibid