Sherry F. Colb

Ten Angry Men?: Why The Supreme Court Should Take a Jury Unanimity Case

By SHERRY F. COLB
Wednesday, May 27, 2009

In 2005, an Oregon jury convicted Scott David Bowen of eight counts of raping, sodomizing, and sexually abusing his teenage daughter. The verdict was not, however, unanimous but consisted of a majority vote of 10-2 – a breakdown that, in Oregon, suffices for conviction of crimes other than first-degree murder.

In his petition for Supreme Court review, Bowen contends that the Sixth Amendment jury trial right requires a unanimous jury for conviction of any serious criminal offense. Bowen thereby asks the Supreme Court to reconsider and overrule its 1972 decision in Apodaca v. Oregon, which upheld the split-verdict approach challenged here.

In this column, I will examine some practical implications of requiring unanimity for conviction (as all but two states currently do) rather than requiring something short of that, as Oregon and Louisiana do.

What Happens When Jurors Disagree?

In the classic 1957 film "12 Angry Men," a jury that has just heard evidence in a murder case receives instructions from the judge and then retires to deliberate. The film depicts the jurors' deliberative process, during which a lone dissenter – Juror 8, played by Henry Fonda – persuades the other members of the jury, one by one, that they are mistaken in their certainty that the defendant committed the crime in question. The dissenter successfully identifies and explains a crucial weakness in the prosecution's case, and the jury (spoiler alert) reaches a verdict of "not guilty." The message of the film is that in our jury system, a lone voice can be the difference between justice and a wrongful conviction.

One assumption behind the film's message is that verdicts must be unanimous. Had the trial instead occurred today in Oregon or Louisiana, and had the charge been a lesser felony than murder, the rest of the jury could have ignored the protestations of Juror 8 and reached a guilty verdict immediately after taking a preliminary ballot. It was only the need to persuade Juror 8, or have him persuade them, of the rightness of their respective positions, that precipitated a dialogue about the evidence through which the truth ultimately emerged.

Notwithstanding the stirring drama of "12 Angry Men," studies of intra-group conformity suggest that the lone holdout is a rarity. If you are the only person in a group to take the position that you take, the odds are excellent that social pressure will lead you (and not your disputants) to re-examine your view. The very fact that no one agrees with you, in other words, will color your perception of the evidence. In real life, then, Juror 8 would likely have changed his mind long before he was able to persuade anyone of his theory of the case. When the initial vote is 11-1, the unanimity requirement may therefore yield an ultimate verdict of 12-0, not the profound deliberative process and resulting enlightenment of "12 Angry Men."

As social creatures, we generally need some external validation of our own perceptions. Accordingly, the existence of a fellow traveler reduces the tendency to conformity. Once we have even one compatriot, we more confidently hold onto our positions and advocate in favor of others joining in. Just think about how comforting it is, when you are defending an unpopular view (at a family dinner, for example), to have someone in your circle say "I think she's right" and share the burden of repelling your adversaries' nay-saying.

For juries that initially vote 10-2 in favor of conviction, a unanimity requirement can compel the ten to listen to the two, if only as a means of figuring out how to persuade the two to join the majority. And once the exchange begins, the dialogue can have the salutary effects evident in the "12 Angry Men" deliberations. When a vote of 10-2 is sufficient for a conviction, by contrast, deliberations may be effectively over before they have even begun.

My Own Experience with Grand Jury Deliberations and Majority Rule

When I served on a New York State grand jury, the rule was that a prosecutor had to persuade a bare majority (12 of 23 grand jurors) to indict. Because the prosecution is the only party presenting its case before the grand jury, the accepted wisdom is that "a grand jury would indict a ham sandwich if the prosecutor asked it to" (though as an ethical vegan, I would sooner indict the producers and consumers of the ham sandwich).

Prosecutors do ordinarily succeed in getting indictments, but my own assessment of grand jury deliberations is that the readiness to indict had at least as much to do with the rule that only a majority vote was required as it did with the one-sided nature of the presentation. Once it became clear (after a bit of discussion) that there were enough votes to bring back an indictment, the majority had little interest in hearing from those of us who believed that there was insufficient evidence to go forward.

Bowen's Challenge to Non-Unanimous Jury Verdicts Like His Own

In the Bowen case, the jury that convicted Scott David Bowen split 10-to-2 on the verdict. Had the trial taken place in another state (besides Louisiana), a split verdict like this would have resulted in a mistrial and accordingly, a right to a new trial. That is precisely what Bowen wants here: a new trial, at which a verdict of guilty must be unanimous for conviction.

Bowen's hope in challenging the verdict in his case is that the next jury will acquit him or, at the very least, find itself again unable to reach a unanimous verdict of guilty. It may be, of course, that when forced to articulate their reasoning, the majority jurors will be able to persuade the minority that a conviction is well-supported. Whatever the individual outcome in Bowen, however, the process of persuasion – and the thinking and mobilizing of arguments that such a process requires – could, over the run of cases, improve the quality and accuracy of results.

If we worry about an inordinate number of hung juries and the inefficiency of constant retrials, it is worth remembering that forty-eight states have been able to manage without resorting to a split-verdict approach. At the same time, we should keep in mind the possibility that Oregon and Louisiana represent the two Juror-8-like holdouts advocating for a better system, at least in their individual states. In the spirit of promoting the sort of deliberation that would ordinarily counsel in favor of a unanimity rule, it is thus worth asking these states why they choose not to follow the pack. For this reason too (and regardless of the outcome), the Supreme Court would do well to grant review in this case and engage in a serious conversation about the right to trial by jury and the nature of deliberation that the Sixth Amendment requires.



Sherry F. Colb, a FindLaw columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is available on Amazon.