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Juries: Is Almost Unanimous Good Enough?

In Oregon and Louisiana, a 102 vote can convict or acquit

By Adam Liptak

Twelve Angry Men, a play that's performed in hundreds of high schools across the country, might have been much shorter had it been set in Oregon. Instead of letting Juror No. 8, played by Henry Fonda in the movie version, convince them that there was reason to doubt the defendant's guilt, Oregon jurors might have just voted and been done with it.

That's because Oregon is one of only two states that doesn't require juries to reach unanimous verdicts in criminal cases. Like Louisiana, it allows conviction or acquittal by a vote of 10 to 2.

(Oregon requires a unanimous vote in first-degree murder cases, and Louisiana requires it in cases involving the death penalty.)

In a pair of 1972 decisions from Louisiana and Oregon, the Supreme Court ruled that the Constitution doesn't require jury unanimity. But this year, Scott D. Bowen, an Oregon man sentenced to 17 years in prison for sexual assault—after a jury voted 10 to 2 to convict him—challenged the constitutionality of the verdict and his lawyers appealed the case all the way to the Supreme Court.

The Sixth Amendment guarantees "the right to a speedy and public trial, by an impartial jury." The men who drafted it understood convictions to require, as the English judge William Blackstone put it in 1769, "the unanimous suffrage of 12" of the defendant's "equals and neighbors."

In a brief urging the Supreme Court not to hear Bowen's case, Oregon acknowledged that "the common law at the time of the founding required a jury verdict to be unanimous. . . . But it does not follow from that historical fact that a unanimous jury became a constitutional guarantee."

Fewer Hung Juries?

Joshua Marquis, an Oregon district attorney, says requiring agreement among just 10 jurors is efficient. "Pretty much the only difference is that we have fewer hung juries," he says.

Marquis adds that 10 votes are required for conviction or acquittal, and so the requirement favors neither the prosecution nor the defense. He also says that the 102 rule helps weed out "rogue jurors."

But Shari Seidman Diamond, a jury expert at Northwestern University's law school, says, "The argument that people who are in the minority are somehow deviant, not worth respecting, or making crazy arguments just doesn't hold up."

Defense lawyers say Oregon's rule makes obtaining convictions easier. And Justice Potter Stewart, dissenting in one of the 1972 cases, said non-unanimous verdicts allow jurors in the majority to ignore the views of those of a different race or class.

For now, however, Oregon and Louisiana's 102 verdicts will remain in place: In October, the Supreme Court decided not to revisit the issue when it declined to hear Bowen's case.

What the jury system aims to do, explains Juror No. 8 in Twelve Angry Men, is find someone innocent or guilty beyond a reasonable doubt.

"We're just gambling on probabilities," he says. "We may be wrong. We may be trying to return a guilty man to the community. No one can really know."

(The New York Times Upfront, Vol. 142, November 23, 2009)