Unanimity of the Jury

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In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Under current doctrine, jury verdicts must be unanimous to convict a defendant of a non-petty offense in both federal and state criminal trials.1 For federal criminal trials, the Supreme Court’s recognition of this unanimity requirement is long-standing, dating back at least as far as the late 1800s.2 But for state criminal trials, it was not until 2020 that the Court held for the first time, in Ramos v. Louisiana, that the Sixth Amendment unanimity requirement applies by incorporation via the Fourteenth Amendment.3

Before Ramos, the unanimity requirement did not apply to state criminal trials under the splintered decision in the 1972 case Apodaca v. Oregon.4 This outcome was significant for the two states—Oregon and Louisiana—that authorized non unanimous verdicts in criminal trials (the other 48 states required unanimity).5 In Apodaca, the Supreme Court upheld a provision of the Oregon constitution that permitted jury verdicts by votes of 10-2 in all but first-degree murder cases.6 A plurality of four justices concluded that the Sixth Amendment did not require unanimity. Much like the Williams majority that upheld the six-person Florida jury, these justices preferred functional over historical considerations when interpreting the Sixth Amendment.7 They reasoned that a jury allowed to convict on a 10-2 vote adequately safeguarded a criminal defendant’s Sixth Amendment interest in “having the judgment of his peers interposed between himself and the officers of the State who prosecute and judge him . . . .” 8 Justice Lewis Powell’s narrower concurrence, however, set the doctrine on unanimity that would endure until 2020. He agreed with four dissenters on the point that “in accord both with history and precedent . . . the Sixth Amendment requires a unanimous jury verdict to convict in a federal criminal trial.” 9 He voted to uphold the Oregon constitutional provision, however, on the ground that the Fourteenth Amendment Due Process Clause did not incorporate the unanimity component of the Sixth Amendment jury trial right, even though it incorporated the right to a jury itself.10 As a result, under Apodaca, federal but not state criminal juries were constitutionally required to render unanimous verdicts.11

Until the Supreme Court overruled Apodaca in 2020, state laws that authorized small juries (as opposed to the twelve-member jury at issue in Apodaca) to render non-unanimous verdicts triggered special Sixth Amendment concerns. In Burch v. Louisiana, the Supreme Court held that six-person juries must convict unanimously.12 The Court struck down, as a violation of the jury trial right, a Louisiana law permitting conviction for nonpetty offenses upon the agreement of five members of a six-person jury.13 Just as the Apodaca plurality opinion followed the reasoning in Williams in departing from historical understandings of jury structure to afford the states more flexibility in crafting criminal procedure, the Burch decision followed the reasoning in Ballew in putting a limit on the flexibility.14 The Burch Court conceded its inability to “discern a priori a bright line below which the number of jurors participating in the trial or the verdict” 15 would violate the Sixth Amendment and emphasized that “line-drawing . . . ‘cannot be wholly satisfactory.’” 16 The Court concluded, however, that “lines must be drawn somewhere if the substance of the jury trial right is to be preserved” and that “conviction for a nonpetty offense by only five members of a six-person jury presents a . . . threat [to that preservation] and justifies . . . requiring verdicts rendered by six-person juries to be unanimous.” 17 The Court “intimated no view” as to the constitutionality of nonunanimous juries with more than six but fewer than twelve members.18

In the 2020 Ramos decision, the Supreme Court overruled Apodaca, reaffirmed that the Sixth Amendment requires unanimity, and held that the Fourteenth Amendment incorporates the Sixth Amendment unanimity requirement against the states.19 The Court reasoned that “Apodaca was gravely mistaken” and that “Justice Powell refused to follow this Court’s incorporation precedents” when he determined that an alternative version of the jury trial right—one without a unanimity requirement—applied in state criminal trials.20 In 2021, the Court held that Ramos did not apply retroactively to invalidate, on federal collateral review, convictions from non-unanimous verdicts that were already final at the time Ramos was decided.21

1: Ramos v. Louisiana, No. 18-5924, slip op. at 7 (U.S. Apr. 20, 2020).
2: Id. at 6 ( “As early as 1898, the Court said that a defendant enjoys a ‘constitutional right to demand that his liberty should not be taken from him except by the joint action of the court and the unanimous verdict of a jury of twelve persons.’” ) (quoting Thompson v. Utah, 170 U.S. 343, 351 (1898)); Andres v. United States, 333 U.S. 740, 748 (1948) ( “Unanimity in jury verdicts is required where the Sixth and Seventh Amendments apply. In criminal cases this requirement of unanimity extends to all issues—character or degree of the crime, guilt and punishment—which are left to the jury.” ); Maxwell v. Dow, 176 U.S. 581, 586 (1900) (stating that the right to jury trial “implies that there shall be an unanimous verdict of twelve jurors in all Federal courts where a jury trial is held” ); see also Johnson v. Louisiana, 406 U.S. 366, 369–70 (1972) (Powell, J., concurring) (citing “an unbroken line of cases reaching back into the late 1800’s [in which] the Justices of this Court have recognized, virtually without dissent, that unanimity is one of the indispensable features of federal jury trial” ).
3: Ramos, slip op. at 7.
4: 406 U.S. 404 (1972).
5: Ramos, slip op. at 1.
6: 406 U.S. at 406.
7: Id. at 410 ( “[A]s in Williams, our inability to divine ‘the intent of the Framers’ . . . requires that in determining what is meant by a jury we must turn to other than purely historical considerations.” ).
8: Id. at 411.
9: Johnson, 406 U.S. at 371 (Powell, J., concurring in judgment). Justice Powell’s concurring opinion in Apodaca is reported together with his concurring opinion in a companion case, Johnson v. Louisiana, 406 U.S. 356 (1972), at 406 U.S. at 366.
10: Johnson, 406 U.S. at 373 (Powell, J., concurring in judgment) (reasoning that incorporation of the unanimity requirement “would give unwarranted and unwise scope to the incorporation doctrine as it applies to the due process right of state criminal defendants to trial by jury.” ); see Ramos, slip op. at 8 ( “Justice Powell doubled down on his belief in ‘dual-track’ incorporation—the idea that a single right can mean two different things depending on whether it is being invoked against the federal or a state government.” ).
11: Timbs v. Indiana, No. 17-109, slip op. at 3 n.1 (U.S. Feb. 20, 2019) (citing Apodaca for the proposition that “the Sixth Amendment requires jury unanimity in federal, but not state, criminal proceedings” ).
12: 441 U.S. 130, 138 (1979).
13: Id. at 134 ( “[C]onviction by a nonunanimous six-member jury in a state criminal trial for a nonpetty offense deprives an accused of his constitutional right to trial by jury.” ).
14: Id. at 138 (resting decision on “much the same reasons that led us in Ballew to decide that use of a five-member jury threatened the fairness of the proceeding and the proper role of the jury” ).
15: Id. at 137.
16: Id. at 138 (quoting Duncan v. Louisiana, 391 U.S. 145, 161 (1968)).
17: Id.; see also Brown v. Louisiana, 447 U.S. 323, 326–27 (1980) (holding that the rule of Burch applies to convictions still pending on direct review on the date Burch was decided, even where the jury was empaneled before that date).
18: Burch, 441 U.S. at 138 n.11.
19: Ramos v. Louisiana, No. 18-5924, slip op. at 7 (U.S. Apr. 20, 2020) ( “There can be no question either that the Sixth Amendment’s unanimity requirement applies to state and federal criminal trials equally.” ).
20: Id. at 21. The Court also explained that the Louisiana and Oregon laws had “racist origins” : both states originally had provided for non-unanimous verdicts to “dilute” the participation of African Americans and other minorities on juries. Id. at 2–3.
21: Edwards v. Vannoy, No. 19-5807, slip op. at 2 (U.S. May 17, 2021).