Does the U.S. Constitution require a unanimous jury verdict to convict a state criminal defendant?
This case asks the U.S. Supreme Court to reconsider its holding in Apodaca v. Oregon, where the Court held that states could permit non-unanimous jury verdicts to convict criminal defendants. In July 2016, Evangelisto Ramos was found guilty of second-degree murder by a ten to two jury verdict. Ramos contends that a non-unanimous jury conviction violates the Sixth Amendment right to a fair jury trial, and therefore, the Court should overrule Apodaca. Louisiana counters that, under Apodaca, states are not constitutionally required to mandate unanimous jury verdicts because the Sixth Amendment imposes that requirement only on the federal government. The outcome of this case has important implications for criminal procedure and the participation of minority citizens in jury deliberation.
Questions as Framed for the Court by the Parties
Whether the 14th Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict.
On November 26, 2014, while inspecting blighted areas in New Orleans, a code enforcement officer discovered the dead body of a woman, later identified as Trinece Fedison, inside a trash can in an alley. New Orleans homicide detectives investigated and learned that Trinece’s nephew, Jerome Fedison, had information on a possible suspect. The day before the police found the body, Jerome had seen Trinece enter a house with a “Spanish” man— Evangelisto Ramos—with whom she had been speaking on a street corner. Jerome waited for her outside the house for a half hour, but she did not emerge. The next day, after learning that his aunt’s body was found, Jerome saw Ramos leaving the same house. Because Ramos was the last person Jerome had seen with his aunt, Jerome approached Ramos and threatened him.
Ramos feared for his life and contacted the police. Ramos offered a DNA sample and told a detective that he had consensual sex with Trinece the night before she was killed. The detective matched the sample with DNA found on the victim and on the handles of the trash can in which the police had found Trinece’s body. Upon receiving the DNA results, a detective arrested Ramos. Ramos subsequently explained that he had put garbage in the trash can after having sex with Trinece. He told the police that Trinece was a prostitute and that after she had left his house, he saw her get into a black SUV with two men.
On May 21, 2015, a grand jury indicted Ramos on one count of second-degree murder. At trial, the prosecution produced the DNA evidence but no eyewitnesses or physical evidence linking Ramos directly to the murder. On June 22, 2016, the jury found Ramos guilty of second-degree murder by a ten to two vote.
On July 6, 2016, Ramos moved for a new trial on the ground that Louisiana’s non-unanimous verdict provision violated the Sixth and Fourteenth Amendments of the U.S. Constitution. Although Louisiana passed a law in 2018 that prohibits non-unanimous verdicts in felony trials, the law does not apply to cases that were not tried or were still pending direct review before January 1, 2019. On November 2, 2017, the Louisiana Court of Appeal, Fourth Circuit overruled Ramos’s motion and entered a guilty verdict, sentencing him to life in prison without parole. The Louisiana Supreme Court denied review.
Ramos filed a petition for a writ of certiorari with the U.S. Supreme Court on September 7, 2018. In his petition, he asked the Court to overrule Apodaca v. Oregon, where the Court ruled that the Sixth Amendment requires a unanimous jury verdict in federal, but not state, criminal cases. The Court granted certiorari on March 18, 2019.
Evangelisto Ramos argues that the Sixth Amendment’s Jury Trial Clause requires a unanimous jury verdict for a criminal conviction. Ramos asserts that the historical origins of the Jury Trial Clause mandate unanimity. Indeed, Ramos notes that English common-law required unanimous jury verdicts since at least the Fifteenth Century. He explains that this legal tradition retained its prominence in early America as colonists formulated their own legal systems. Ramos contends that the Framers intended to constitutionalize pre-existing rights when they drafted the Bill of Rights. Accordingly, Ramos posits that the Sixth Amendment was intended to codify common-law unanimity into the jury-trial protection. He argues that, although the Sixth Amendment does not explicitly mention unanimity, the Court assumes that when the Constitution contains common-law rights it also intended to incorporate any historical aspects and limitations attached to those rights. Therefore, Ramos contends that the right to a jury trial conveys more than its literal reading—it implies how the jury must issue its verdict, which throughout history has been unanimously. Ramos contends that this understanding is bolstered by the fact that the federal government and almost every state have required unanimity since the Founding, and that this near-uniform national judgment should guide the Court’s interpretation of the Jury Trial Clause.
Further, Ramos asserts that over a century of court cases reflect the historical understanding that the Sixth Amendment preserved the common-law unanimity requirement. This understanding, Ramos maintains, is supported by numerous jurists and scholars who over the past two centuries have described the Jury Trial Clause as requiring unanimity. For example, Ramos quotes Justice Story, who stated that the jury-trial right required that the jury “unanimously concur in the guilt of the accused before a legal conviction may be had.” In fact, Ramos points out, a majority of the justices in Apodaca, despite disagreeing on other grounds, espoused this view when they agreed that the Sixth Amendment requires unanimity.
Respondent Louisiana counters that the Sixth Amendment right to a jury trial does not incorporate every feature of the common-law jury. Louisiana argues that in Williams v. Florida, the Court rejected the assumption that “if a given feature existed in a jury at common law in 1789, then it was necessarily preserved in the Constitution.” Indeed, Louisiana notes, other aspects of the common-law jury have since been discarded, such as limiting the jury panel to male landowners and requiring that the trial be held near the location where the crime occurred. Accordingly, Louisiana cautions that the Court should not imply a unanimity requirement from the Jury Trial Clause. Instead, Louisiana contends that the Court should begin its analysis by reading the Constitution’s plain language. Louisiana explains that the Sixth Amendment’s text does not explicitly mention unanimity, nor does any other clause in the Constitution. Further, Louisiana highlights other constitutional clauses that explicitly incorporate common-law rules as evidence that the Framers consciously omitted the unanimity requirement from the Sixth Amendment. Finally, Louisiana points out that although the original draft of the Sixth Amendment included the unanimity requirement, the Framers decided to remove it from the final version, which underscores that they did not intend to include every common-law feature of the right to trial by jury.
Additionally, Louisiana rebuts Ramos’ claim that the Sixth Amendment has been historically understood to include a unanimity requirement. Pointing to variations in state constitutions—where some states codified the unanimity requirement at the Founding while others did not—Louisiana suggests that the Founders would have inserted unanimity into the Jury Trial Clause if they believed it was needed, suggesting that a lack of historical consensus about unanimity existed. Further, Louisiana argues that Ramos misconstrues historical understandings of unanimity—including by attributing to Justice Story a quote that was posthumously added to his writing. Ultimately, Louisiana asserts, there is insufficient historical support to justify reading a unanimity requirement into the Sixth Amendment.
THE FOURTEENTH AMENDMENT AND INCORPORATION
Ramos argues that the Fourteenth Amendment incorporates the Sixth Amendment’s unanimity requirement against the states. According to Ramos, since 1968 in Duncan v. Louisiana, the Court has consistently applied the Sixth Amendment’s Jury Trial Clause to the states. Further, Ramos notes that when a Bill of Rights protection is incorporated against the states, that protection must be enforced against the states in the same manner in which it is against the federal government—a rule that the Court reaffirmed just last term in Timbs v. Indiana. Because the Jury Trial Clause—which requires unanimity—is incorporated against the states, Ramos contends that incorporating the Jury Trial Clause against Louisiana necessarily incorporates unanimity as a jury-trial right.
Alternatively, Ramos argues that the Fourteenth Amendment guarantees the right to unanimity as a fundamental, “freestanding” due process right for state-criminal defendants. Ramos explains that the Fourteenth Amendment requires states to adhere to “time-honored” procedural rules, such as the “beyond-a-reasonable-doubt” rule, because such rules reflect longstanding societal mores. Ramos maintains that, given its tradition, the unanimity requirement is one such fundamental procedural right. Moreover, Ramos contends that unanimity is also protected by the Privileges and Immunities Clause, which guarantees the fundamental rights of individual citizens.
In rejecting incorporation, Louisiana reiterates its primary argument: the Sixth Amendment does not include the right to a unanimous jury verdict. Therefore, Louisiana continues, there is no existing fundamental unanimity right to incorporate against the states under the Fourteenth Amendment.
Responding to Ramos’s alternative argument, Louisiana urges that the Fourteenth Amendment’s Due Process Clause is not a “repository for an implied right to unanimity.” Louisiana maintains that the Court has never held that jury unanimity is a fundamental due process right, whether under the Fifth or Fourteenth Amendment. Indeed, Louisiana notes that the States are capable of independently deciding whether to impose a unanimity requirement, and that nearly every state has now elected to do so. Louisiana cautions that to incorporate a unanimity right “would short-circuit what looks to be a prompt and considered legislative response” to a procedural question.Further, regarding Ramos’ Privileges and Immunities Clause argument, Louisiana contends that the Clause only encompasses recognized constitutional rights. Therefore, Louisiana posits that because the right to a unanimous jury verdict is not enumerated in the Constitution, it is not protected by the Privileges and Immunities Clause.
Ramos argues that the Court should overrule Apodaca, where Justice Powell’s single vote decided that state jury verdicts need not be unanimous. Ramos emphasizes the fractured nature of the Apodaca decision by pointing out that most of the Justices disagreed with Justice Powell’s rationale in that case and penned their own opinions. He also asserts that Justice Powell’s rationale—that the Sixth Amendment binds the states to a lesser extent than it binds the federal government—clashes with the Court’s decisions that fully incorporate other constitutional amendments. Accordingly, Ramos contends that stare decisis—the adherence to the Court’s prior decisions—should not prevent the Court from overruling Apodaca in this case. Ramos acknowledges that states may have relied on Apodaca and similar cases when fashioning their jury systems but argues that stare decisis should not work as a barrier to implementing the Bill of Rights’ full protection for all citizens.
Louisiana responds that the Court explicitly rejected a unanimity requirement for the states in Apodaca. Louisiana argues that, in past cases, the Court only mentioned unanimity in dicta—the non-binding and unessential portion of a court’s ruling—before Apodaca ruled on the issue. According to Louisiana, therefore, stare decisis dictates that Apodaca should guide the Court’s decision in this case. Louisiana argues that rejecting settled law “demands special justification,” even in cases that address constitutional rights. Ultimately, Louisiana asserts, there is no special justification for overruling Apodaca in this case. Louisiana also notes that, along with Oregon, it has relied on the rule from Apodaca to fashion its own jury system—a reliance interest protected by the principle of stare decisis. Further, Louisiana points that overturning Apodaca would undermine subsequent cases that have built on the Apodaca framework, such as Williams, which allows verdicts by fewer than twelve jurors.
THE AMERICAN JURY AS A DEMOCRATIC INSTITUTION
The NAACP Legal Defense & Educational Fund (“NAACP”), in support of Ramos, contends that Louisiana’s non-unanimous jury system originally had the purpose—and continues to have the effect—of diluting the votes of black jurors. The NAACP notes that black jurors are more than twice as likely to disagree with the majority when deliberating, meaning that when a jury convicts with a non-unanimous verdict, it may effectively exclude black jurors from their civic role. Ultimately, the NAACP argues, unanimity better ensures black citizens’ equality, both by ensuring that their voices count in jury deliberations and by increasing the chance that a defendant will not be convicted—at least in part—because of his or her race.
Utah, twelve other states, and the Commonwealth of Puerto Rico (“Utah”), in support of Louisiana, counter that non-unanimous verdicts preserve the jury as a democratic institution. Indeed, Utah argues that the non-unanimous jury system reduces the problem of jury nullification, which occurs when a jury, despite believing beyond a reasonable doubt that a defendant is guilty of the violation charged, returns a verdict of “not-guilty” because they believe the law is immoral or wrongly applied. Utah contends that when nullifying jurors refuse to apply the laws that a democratically elected legislature enacted, those jurors undermine that legislature’s authority and the judgment of the majority of their peer jurors.
THE EFFECT OF UNANIMITY ON JURY DELIBERATION
A group of Law Professors and Social Scientists (the “Professors”), in support of Ramos, argue jury unanimity strengthens jury deliberations and decreases the likelihood of factual errors. The Professors maintain that, when jury unanimity is required, each juror is required to consider each other juror’s perspective during deliberations, which fosters understanding and decreases the likelihood that a minority viewpoint will be overlooked. Therefore, the Professors continue, each juror will be more likely to change their views and more immune to racial and gender bias. According to the American Bar Association (“ABA”), in support of Petitioner, this increases the accuracy of jury decisions and reduces wrongful convictions and racial disparities in convictions. Ultimately, the ABA posits, unanimity would improve the public’s confidence in the criminal justice system.
Utah, in support of Louisiana, contends that imposing a unanimity requirement would weaken jury deliberation and increase the likelihood of hung juries. If unanimity were required, Utah argues, the jurors sharing the majority viewpoint would dominate deliberations and intimidate dissenting jurors into agreeing with them. Moreover, Utah asserts, if unanimity is required but jury deliberations are deadlocked—resulting in a hung jury—the state must pay for expensive retrials and find a new jury, which delays the justice due to victims and their families and exposes them to prolonged suffering. Therefore, Utah cautions that a unanimity requirement would actually decrease the public’s confidence in the criminal justice system and increase the number of mistrials.
WOULD A UNANIMITY RIGHT CAUSE MASS RETRIALS?
New York, seven other states, and the District of Columbia (“New York”), in support of Ramos, argue that a unanimity requirement would not cause mass retrials of past convictions obtained with non-unanimous verdicts. New York points out that the Court could rule that the unanimity requirement applies only to future cases and cases like Ramos’s, where the defendant’s conviction is not yet final. To be sure, New York maintains that the Court has instituted numerous safeguards that prevent the retroactive application of new procedural rules, which protects Louisiana’s reliance interests in the finality of its criminal judgments.
Oregon, writing in support of Louisiana, counters that a new unanimity requirement, if applied retroactively, could cause innumerable retrials in cases where defendants were convicted by a non-unanimous verdict. Oregon cautions that a flood of motions for new trials, in cases going back as far as 40 years, could easily inundate a state’s judicial system. In fact, Oregon reports, hundreds of convicted defendants have already filed petitions for retrials since the Court granted certiorari in this case. Lastly, Oregon notes that retrials would require victims and their families to relive the first trial’s trauma—except this time, the evidence to convict may be unavailable.
- Adam Liptak, A Relentless Jailhouse Lawyer Propels a Case to the Supreme Court, New York Times (Aug. 5, 2019).
- Matt Sledge & Gordon Russell, U.S. Supreme Court to Reconsider Split Jury Verdicts, Prompted by New Orleans Case, The New Orleans Advocate (Mar. 18, 2019).
- Robert Barnes, Supreme Court to Examine whether Unanimous Juries are Required for Criminal Convictions, Washington Post (Mar. 18, 2019).