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The text of the Sixth Amendment, > In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the St

The text of the Sixth Amendment, > 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. Left me wondering where the right to unanimous juries comes from, since it doesn't seem to be mentioned in the actual amendment, and the article doesn't really tell me. Even SCOTUS blog, unless I missed it, doesn't say. Thankfully, there's Wikipedia[1]: > Originally, the Supreme Court held that the Sixth Amendment right to a jury trial indicated a right to "a trial by jury as understood and applied at common law, and includes all the essential elements as they were recognized in this country and England when the Constitution was adopted." Therefore, it was held that juries had to be composed of twelve persons and that verdicts had to be unanimous, as was customary in England. The next paragraph was a bit odd in light of my question: > When, under the Fourteenth Amendment, the Supreme Court extended the right to a trial by jury to defendants in state courts, it re-examined some of the standards. It has been held that twelve came to be the number of jurors by "historical accident," and that a jury of six would be sufficient, but anything less would deprive the defendant of a right to trial by jury. Sure, but what prevents us from calling unanimity a historical accident as well? (Still, personally, I think having to have 12 — or maybe just 6 — people come to agreement on a conviction is for the better. I'd rather let a few guilty people go free than convict an innocent one.) [1]: https://en.wikipedia.org/wiki/Sixth_Amendment_to_the_United_States_Constitution#Impartial_jury https://en.wikipedia.org/wiki/Sixth_Amendment_to_the_United_...

asperous 7y ago
Historical precedent rather then accident I would say. There is a quote in the court's opinion that using historical precedent "promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process". I agree with you, beyond a reasonable doubt should mean all jurors agree.
- drapred7 7y ago
  At the risk of being a bit technical, (as law tends to be) I think reasonable doubt is called the "standard of evidence". Its the phrase "jury trial" that the court found to require unanimous verdicts.
  - pnw_hazor 7y ago
    Criminal jury trials have the unanimity requirement. Also, criminal convictions are held the "beyond a reasonable doubt" standard, though there may be collateral actions, or procedural determinations in a criminal trial that have a different standard of evidence. Otherwise, US States have a lot of flexibility in how they handle non-criminal cases.
- cyphar 7y ago
  "Beyond reasonable doubt" is a standard of evidence, it doesn't have anything to do with whether the jury needs to be unanimous. They need to be unanimous regardless of the standard of evidence, even for "preponderance of the evidence" (which means that the jury finds it more likely than not -- that the evidence "tips the scale"). If the jury is not unanimous they need to deliberate more until they are unanimous (if they deadlock then a new jury is called and the whole case starts again).
  - jessaustin 7y ago
    The two concepts seem related, at least if we assume that jurors are reasonable. A single reasonable juror having a doubt indicates that the verdict is not beyond reasonable doubt. I agree that unanimity is not as obvious when the standard is "preponderance".
    - cyphar 7y ago
      I guess I should've said that it's a separate condition, rather than being unrelated. The standard each juror needs to consider when making their own determination is "beyond reasonable doubt" (or "preponderance" or "clear and convincing"), and in order for the verdict to be held by the jury it needs to be unanimous.
deleted 7y ago
[deleted]
wahern 7y ago
> Sure, but what prevents us from calling unanimity a historical accident as well? On the fourth page of Gorsuch's opinion he summarizes the basic argument: "Wherever we might look to determine what the term 'trial by an impartial jury trial' meant at the time of the Sixth Amendment's adoption--whether it’s the common law, state practices in the founding era, or opinions and treatises written soon afterward--the answer is unmistakable. A jury must reach a unanimous verdict in order to convict." I think your observation is correct--the logic of Williams v. Florida contradicts the logic of this new opinion. Before Williams v. Florida, and as that opinion honestly summarizes, 12 members was always required, solely based on historical practice. So Williams opposed the fundamental reasoning of historical precedent and overturned actual Supreme Court precedent; it looked to the fundamental purpose of the jury trial and whether the size was consistent with that purpose. For Ramos (or at least Gorsuch), consistent historical practice is the most important and even dispositive evidence of how a jury verdict must be composed, regardless of whether it was accidental rather than deliberate, and regardless of whether a non-unanimous verdict achieves the purpose; it seems to return to the pre-Williams reasoning. To the extent purpose mattered, it was the purpose of the deviations from unanimity, and that purpose was preserving white supremacy.
- tunesmith 7y ago
  I'm not sure what you meant by your last sentence. Do you mean the purpose of the unanimous jury was to preserve white supremacy? Or do you mean that the purpose of Williams' argument against the unanimous jury was to preserve white supremacy?
  - icelancer 7y ago
    Gorsuch is saying that the point of a non-unanimous jury was to advance racist policies, and that this was widely accepted to be true.
    - simonh 7y ago
      In fact it was plainly stated by proponents of non-unanimous juries when they were introduced, as pointed out in the article.
deleted 7y ago
[deleted]
badrabbit 7y ago
Another way to look at it might be to ask why a jury is even needed. Why not just two jurors? If a simple majority is all it takes then why does it matter how many jurors there are so long as it is more than one. And if it isn't a simple majority then unanimity is the only resonable option. Whereas judges deliberate,issue opinions and sentences, jurors have no such mandate. A second way to look at it would be to consider that the accused has presumptiom of innocence,therefore the juror's purpose is to remove that presumption. If there is no unanimity then you're saying it is better to punish the guilty even if some innocents get punished in the process. If jurors represent society then one juror's opinion in a 10 person jury represents 10% of the population.
- SllX 7y ago
  When discussing common law, the answer invariably comes down to “tradition”. The English common law, which we inherited our own traditions from and much of which is still applicable today, is less a “law” in the sense of a set of decrees from a King or statutes passed by a parliamentary body and more a long line of traditions and community standards that change slightly over time according to a few principles, with the facts and circumstances of the time used to inform the judgement and sentencing. Without a legislative body, you could go on evolving the traditions over time to cover any number of new and unique circumstances simply by using the existing body of law as a guideline. So why 12 Jurors and why must they be unanimous? Because it is tradition, and the principle of stare decisis has kept it that way for a very long time. Can traditions change? Yes, but stare decisis makes it unlikely that any sort of arbitrary changes will be made and upheld. Think of it as the legal equivalent of inertia. The law stays the same given the same facts and circumstances unless changed by an outside force, usually a statute in modern democracies with common law legal systems. The upshot of all of this is to make the practice of law and process of legal proceedings more predictable and arbitration less arbitrary if you’ve done your homework and can tie your case to a previous case, and it doesn’t even necessarily have to be a case from the same jurisdiction if it’s from the same legal tradition and not incompatible with the existing body of law in the jurisdiction the case is within. In contrast, whenever the legislature passes a new Bill and it’s signed into law, you have to study how this will affect new cases going forward rather than simply being able to rely on past precedent. This allows more instantaneous changes to new circumstances but also allows more arbitrary laws to be passed whose effects on people and commerce are not well understood until they are used in litigation.
freepor 7y ago
The Supreme Court decided a long time ago that the Constitution said whatever the justices thought it should say. The rest of the government went along with this concept. Overall, I think it's been a positive thing as the House of Representatives, then Senate, and then Presidency sequentially fell into complete discredit.
- SllX 7y ago
  Living constitutionalism is not a universally agreed upon judicial philosophy.
  - krapp 7y ago
    Neither is strict constitutionalism.
    - SllX 7y ago
      Well there’s also textualism.
  - freepor 7y ago
    No, but empirically it's what the justices have been using for over 50 years. Decisions like Wickard v. Filburn and Obergefell don't just come from "living constitutionalism" -- they are just completely made up out of whole cloth.
    - SllX 7y ago
      There are justices that subscribe to living constitutionalism, yes. And fewer of them than there was 4 years ago.
twic 7y ago
For what it's worth, in England today, you can convict with the agreement of 10 out of 12 jurors. In Scotland, you need 8 out of 15!
- webmobdev 7y ago
  And in India (which has a British created judiciary), we have totally done away with the jury system as "the Law Commission of India termed the jury system a “failure” and recommended its abolition" (https://www.thehindu.com/features/magazine/Judged-by-twelve/article14581947.ece https://www.thehindu.com/features/magazine/Judged-by-twelve/...).
brobdingnagians 7y ago
Is it still the norm is England to require unanimous consent for criminal convictions? If not, then what was the reasoning for changing it and how is it different from the original historical reasoning for unanimous conviction?
- matthewheath 7y ago
  Yes, the default position requires a unanimous verdict from the jury — all 12 of them, but the court may accept a majority verdict no less than 2 hours and 10 minutes after the jury retires. The unanimous requirement was changed by the Criminal Justice Act 1967[1] (the relevant section since repealed) for criminal proceedings and the Jury Act 1974[2] for civil proceedings (incorporating criminal proceedings as well). It's unclear why the number was originally set at 12 – historical research suggests the Danes set this number when they conquered parts of northern England and subsequent Anglo-Saxon monarchs simply continued it. Perhaps 12 was simply an appealing number, or maybe there were political considerations, etc. — it's impossible to know. As for why Parliament allowed juries to come to a non-unaninmous verdict in specific circumstances, it appears to have been influenced by the Morris Committee Report of 1965 according to Hansard[3]. Additionally (as mentioned in Hansard above), the Scottish legal system have had majority verdicts for juries for a long time prior to the change to England and Wales in 1967 so that may have had some influence on the Government of the day implementing a change to the jury system. Part of their concern was also down to "jury nobbling" - they felt that if one or two people were "nobbled", it would be fair to allow the remaining 10 to come to a verdict effectively disregarding the nobbled pair (this is also raised in the Hansard report above). -- [1] http://www.legislation.gov.uk/ukpga/1967/80/section/13/enacted http://www.legislation.gov.uk/ukpga/1967/80/section/13/enact... [2] http://www.legislation.gov.uk/ukpga/1974/23/section/17 http://www.legislation.gov.uk/ukpga/1974/23/section/17 [3] https://api.parliament.uk/historic-hansard/commons/1967/apr/27/clause-10-majority-verdicts-of-juries-in https://api.parliament.uk/historic-hansard/commons/1967/apr/...
  - brobdingnagians 7y ago
    Thank you for the detailed answer!

asperous 7y ago

Historical precedent rather then accident I would say. There is a quote in the court's opinion that using historical precedent "promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process". I agree with you, beyond a reasonable doubt should mean all jurors agree.

drapred7 7y ago
At the risk of being a bit technical, (as law tends to be) I think reasonable doubt is called the "standard of evidence". Its the phrase "jury trial" that the court found to require unanimous verdicts.
- pnw_hazor 7y ago
  Criminal jury trials have the unanimity requirement. Also, criminal convictions are held the "beyond a reasonable doubt" standard, though there may be collateral actions, or procedural determinations in a criminal trial that have a different standard of evidence. Otherwise, US States have a lot of flexibility in how they handle non-criminal cases.
cyphar 7y ago
"Beyond reasonable doubt" is a standard of evidence, it doesn't have anything to do with whether the jury needs to be unanimous. They need to be unanimous regardless of the standard of evidence, even for "preponderance of the evidence" (which means that the jury finds it more likely than not -- that the evidence "tips the scale"). If the jury is not unanimous they need to deliberate more until they are unanimous (if they deadlock then a new jury is called and the whole case starts again).
- jessaustin 7y ago
  The two concepts seem related, at least if we assume that jurors are reasonable. A single reasonable juror having a doubt indicates that the verdict is not beyond reasonable doubt. I agree that unanimity is not as obvious when the standard is "preponderance".
  - cyphar 7y ago
    I guess I should've said that it's a separate condition, rather than being unrelated. The standard each juror needs to consider when making their own determination is "beyond reasonable doubt" (or "preponderance" or "clear and convincing"), and in order for the verdict to be held by the jury it needs to be unanimous.

deleted 7y ago

[deleted]

wahern 7y ago

> Sure, but what prevents us from calling unanimity a historical accident as well? On the fourth page of Gorsuch's opinion he summarizes the basic argument: "Wherever we might look to determine what the term 'trial by an impartial jury trial' meant at the time of the Sixth Amendment's adoption--whether it’s the common law, state practices in the founding era, or opinions and treatises written soon afterward--the answer is unmistakable. A jury must reach a unanimous verdict in order to convict." I think your observation is correct--the logic of Williams v. Florida contradicts the logic of this new opinion. Before Williams v. Florida, and as that opinion honestly summarizes, 12 members was always required, solely based on historical practice. So Williams opposed the fundamental reasoning of historical precedent and overturned actual Supreme Court precedent; it looked to the fundamental purpose of the jury trial and whether the size was consistent with that purpose. For Ramos (or at least Gorsuch), consistent historical practice is the most important and even dispositive evidence of how a jury verdict must be composed, regardless of whether it was accidental rather than deliberate, and regardless of whether a non-unanimous verdict achieves the purpose; it seems to return to the pre-Williams reasoning. To the extent purpose mattered, it was the purpose of the deviations from unanimity, and that purpose was preserving white supremacy.

tunesmith 7y ago
I'm not sure what you meant by your last sentence. Do you mean the purpose of the unanimous jury was to preserve white supremacy? Or do you mean that the purpose of Williams' argument against the unanimous jury was to preserve white supremacy?
- icelancer 7y ago
  Gorsuch is saying that the point of a non-unanimous jury was to advance racist policies, and that this was widely accepted to be true.
  - simonh 7y ago
    In fact it was plainly stated by proponents of non-unanimous juries when they were introduced, as pointed out in the article.

deleted 7y ago

[deleted]

badrabbit 7y ago

Another way to look at it might be to ask why a jury is even needed. Why not just two jurors? If a simple majority is all it takes then why does it matter how many jurors there are so long as it is more than one. And if it isn't a simple majority then unanimity is the only resonable option. Whereas judges deliberate,issue opinions and sentences, jurors have no such mandate. A second way to look at it would be to consider that the accused has presumptiom of innocence,therefore the juror's purpose is to remove that presumption. If there is no unanimity then you're saying it is better to punish the guilty even if some innocents get punished in the process. If jurors represent society then one juror's opinion in a 10 person jury represents 10% of the population.

SllX 7y ago
When discussing common law, the answer invariably comes down to “tradition”. The English common law, which we inherited our own traditions from and much of which is still applicable today, is less a “law” in the sense of a set of decrees from a King or statutes passed by a parliamentary body and more a long line of traditions and community standards that change slightly over time according to a few principles, with the facts and circumstances of the time used to inform the judgement and sentencing. Without a legislative body, you could go on evolving the traditions over time to cover any number of new and unique circumstances simply by using the existing body of law as a guideline. So why 12 Jurors and why must they be unanimous? Because it is tradition, and the principle of stare decisis has kept it that way for a very long time. Can traditions change? Yes, but stare decisis makes it unlikely that any sort of arbitrary changes will be made and upheld. Think of it as the legal equivalent of inertia. The law stays the same given the same facts and circumstances unless changed by an outside force, usually a statute in modern democracies with common law legal systems. The upshot of all of this is to make the practice of law and process of legal proceedings more predictable and arbitration less arbitrary if you’ve done your homework and can tie your case to a previous case, and it doesn’t even necessarily have to be a case from the same jurisdiction if it’s from the same legal tradition and not incompatible with the existing body of law in the jurisdiction the case is within. In contrast, whenever the legislature passes a new Bill and it’s signed into law, you have to study how this will affect new cases going forward rather than simply being able to rely on past precedent. This allows more instantaneous changes to new circumstances but also allows more arbitrary laws to be passed whose effects on people and commerce are not well understood until they are used in litigation.

freepor 7y ago

The Supreme Court decided a long time ago that the Constitution said whatever the justices thought it should say. The rest of the government went along with this concept. Overall, I think it's been a positive thing as the House of Representatives, then Senate, and then Presidency sequentially fell into complete discredit.

SllX 7y ago
Living constitutionalism is not a universally agreed upon judicial philosophy.
- krapp 7y ago
  Neither is strict constitutionalism.
  - SllX 7y ago
    Well there’s also textualism.
- freepor 7y ago
  No, but empirically it's what the justices have been using for over 50 years. Decisions like Wickard v. Filburn and Obergefell don't just come from "living constitutionalism" -- they are just completely made up out of whole cloth.
  - SllX 7y ago
    There are justices that subscribe to living constitutionalism, yes. And fewer of them than there was 4 years ago.

twic 7y ago

For what it's worth, in England today, you can convict with the agreement of 10 out of 12 jurors. In Scotland, you need 8 out of 15!

webmobdev 7y ago
And in India (which has a British created judiciary), we have totally done away with the jury system as "the Law Commission of India termed the jury system a “failure” and recommended its abolition" (https://www.thehindu.com/features/magazine/Judged-by-twelve/article14581947.ece https://www.thehindu.com/features/magazine/Judged-by-twelve/...).

brobdingnagians 7y ago

Is it still the norm is England to require unanimous consent for criminal convictions? If not, then what was the reasoning for changing it and how is it different from the original historical reasoning for unanimous conviction?

matthewheath 7y ago
Yes, the default position requires a unanimous verdict from the jury — all 12 of them, but the court may accept a majority verdict no less than 2 hours and 10 minutes after the jury retires. The unanimous requirement was changed by the Criminal Justice Act 1967[1] (the relevant section since repealed) for criminal proceedings and the Jury Act 1974[2] for civil proceedings (incorporating criminal proceedings as well). It's unclear why the number was originally set at 12 – historical research suggests the Danes set this number when they conquered parts of northern England and subsequent Anglo-Saxon monarchs simply continued it. Perhaps 12 was simply an appealing number, or maybe there were political considerations, etc. — it's impossible to know. As for why Parliament allowed juries to come to a non-unaninmous verdict in specific circumstances, it appears to have been influenced by the Morris Committee Report of 1965 according to Hansard[3]. Additionally (as mentioned in Hansard above), the Scottish legal system have had majority verdicts for juries for a long time prior to the change to England and Wales in 1967 so that may have had some influence on the Government of the day implementing a change to the jury system. Part of their concern was also down to "jury nobbling" - they felt that if one or two people were "nobbled", it would be fair to allow the remaining 10 to come to a verdict effectively disregarding the nobbled pair (this is also raised in the Hansard report above). -- [1] http://www.legislation.gov.uk/ukpga/1967/80/section/13/enacted http://www.legislation.gov.uk/ukpga/1967/80/section/13/enact... [2] http://www.legislation.gov.uk/ukpga/1974/23/section/17 http://www.legislation.gov.uk/ukpga/1974/23/section/17 [3] https://api.parliament.uk/historic-hansard/commons/1967/apr/27/clause-10-majority-verdicts-of-juries-in https://api.parliament.uk/historic-hansard/commons/1967/apr/...
- brobdingnagians 7y ago
  Thank you for the detailed answer!