Warren E. Burger: We'll hear arguments next in number 53-38, Apodaca and others against Oregon. Mr. Sobol, you may proceed when you're ready.
Robert B. Sobol: Thank you. Mr. Chief Justice and may it please the Court. These cases are here on certiorari to the Court of Appeals of Oregon. The issue is similar to that involved in the preceding case, but different in a very fundamental respect. The -- each of these three criminal convictions were tried after the date of this Court's decision in Duncan versus Louisiana, and under the holding of DeStefano against Woods, therefore, the cases that I am now about to argue are governed by the Duncan rule by which this Court held that Sixth Amendment right to trial by jury by virtue of the Due Process Clause of the Fourteenth Amendment is applicable to the state criminal proceedings. As a result of that holding, the primary question before the Court in these cases is whether the Sixth Amendment of the United States Constitution secures unanimity in jury trials. The petitioners in each of the -- each of the three petitioners in these cases were convicted of a serious crime by less than a unanimous jury in the State of Oregon in accordance with the procedures set forth in Article I, Section 11 of the Oregon Constitution which permits a jury to render a verdict of guilty other than murder in the first degree by 10 out of 12 votes with 2 jurors in disagreement before the sentence. In the Madden case, the charge was grand larceny. The record shows the jury was out less than 30 minutes and rendered a verdict of guilty by 11-1 and Madden was sentenced to 3 years in prison. In the Apodaca case, the charge was assault with a deadly weapon. The jury was out for 41 minutes. They rendered a verdict of guilty by a vote of 11-1, and Apodaca was sentenced to 5 years in prison. In the Cooper case, the charge was burglary in a dwelling. The jury was out for 51 minutes and rendered a verdict by a vote of 10-2, and Cooper was sentenced to three-and-half years in prison. Each of the cases was appealed to the Court of Appeals of Oregon which followed the recent decision of the Supreme Court of Oregon which, by a 4-3 vote in state began, held that interpreting Duncan that the rule of unanimity, Historic Rule of Unanimity, was not incorporated by the Sixth Amendment and was not applicable to the states. The Supreme Court of Oregon denied review in these cases and this Court granted certiorari. In Williams against Florida, decided last term, this Court held that only those common law requisites of trial by jury that are fundamental in their purpose that are essential to the functioning of a jury as an institution secured by the Sixth Amendment, and the mere fact that a procedure was part of the jury requisites, a common law does not itself satisfy the standard for inclusion in the Sixth Amendment unless there is a showing that that procedure is fundamental. Our argument here is plainly within the holding of Williams. We think that there was, as the Court said in Williams, there was no showing that the number 12 could be shown to have served any special or significant function. We think there are several reasons, why the requirement of unanimity serves important functions for the jury, and it's on this basis, we ask the Court, applying to Williams holding to hold that the right of unanimity was incorporated by the Sixth Amendment and is therefore, applicable to the trial of these petitioners.
Warren E. Burger: Now, when you say “was incorporated from framers,” from the colonies that had less than unanimous verdicts or from the English common law?
Robert B. Sobol: I'm not making the argument, Mr. Chief Justice, that we automatically have a rule of unanimity because of common law history. I'm accepting the test articulated by the Court in Williams, and that is that it is not bound by history on this point, that both the common law history and the constitutional history leave the question open. That's what this Court said and that the issue, therefore, for the Court to decide in each instance is the fundamental nature of the requisite in issue --
Warren E. Burger: On the standard --
Robert B. Sobol: On the standard of the --
Warren E. Burger: The Constitution or something other --
Robert B. Sobol: No, the constitution. Mr. Justice White said for the Court in Williams that, in each case in which there is a question of whether a jury requisite is incorporated in the Sixth Amendment, as part of the Sixth Amendment guarantee, it will look to the historic purposes of the jury, the functioning of the jury, and determine and interpreting the word “jury” in the Sixth Amendment which is what -- the text we looked to, what that word “jury” means. It certainly means something, and we think that there are some of the common law requisites that are incorporated by the use of the word “jury” in the Sixth Amendment and as the Court held in Williams, some are not. And, the test in interpreting the word “jury” in the Sixth Amendment which is the source, that the test is the fundamental nature of the essential purposes of the requisite in issue in terms of jury trial.
Warren E. Burger: How does Mr. Madison's unsuccessful effort to have the unanimous verdict enter into the scales, if it enters in?
Robert B. Sobol: In answer to that question, Mr. Chief Justice, I would just take the holding of the Court in Williams that the history of an effort to make the Sixth Amendment more specific by including the word “unanimity” in the Sixth Amendment can be read either way. It can be read to be interpreted, as Mr. Justice Holland said in his concurring opinion in Williams, that it was so much assumed that the requirement of unanimity and 12 men in that case was incorporated by the use of the word “jury,” there was no necessity for particularization. It could also be argued that that was not assumed, that an effort was made, and that the effort failed and that has significance. This Court's interpretation in Williams of that history said the question is open, that we cannot -- there is not enough guidance either way from the history. Examining that very process of Mr. Madison's proposed amendment, it's consideration, it's passage on one side, it's defeat on the other, and it's ultimate defeat, this Court considering that history said the question is open. Now, we look to fundamentalness. I approach this case exactly within the test which was framed by the Court in Williams, and I would like to argue to the Court that in at least three respects, three very important respects, the requirement of unanimity serves that fundamental function that the Court was talking about in Williams when it said we are going to only incorporate those that serve a fundamental function. And the functions that we think it does serve that are fundamental is its effect on the process of deliberation, its effect on the government's burden of proof, and its effect on the constitutional requirements, that a cross-section of the community participate in jury decisions. I'd like to briefly take those up -- each one up without repeating unnecessarily on the argument in the case that preceded. The Court -- this Court in Allen against United States, in 1896, said the very object of the jury system is to secure unanimity by a comparison of views and by arguments among the jurors themselves. The process of group deliberation by jury tests the juror's understanding of the evidence, requires dissenting and majority views in order to reach a verdict come out of the jury room, requires them to put their impressions of the evidence to a test, and has historically been recognized as a very important safeguard in weeding out erroneous or misunderstandings of the evidence. The requirement of unanimity, wherever there is any dissenter in the jury room, requires that the jury discuss the case and come out with some kind of consensus upon full discussion and consideration of the issues. Now, the majority verdict rule undercuts deliberation in two respects. When the first vote of the jury shows that there is the requisite majority for a verdict, regardless of whether there any dissenters, there is no deliberation at all and the jury comes back to the Court room and renders its verdict. In a case of that kind, even though one or two jurors in the Oregon procedure or one, two, or three jurors in the Louisiana procedure have objections to the finding of guilt feel that there is doubt about the evidence, there is no opportunity whatsoever for them to so much as express their views and have the possibility of them convincing the majority of the correctness of their views, there's no deliberation whatsoever.
Harry A. Blackmun: Are you positive of that? Do we know that a jury doesn't deliberate before it votes?
Robert B. Sobol: Well, we don't know about any particular jury whether it does or it does not, Mr. Justice Blackmun. But, the time that the juries in these cases were out for example, which in all cases was less than an hour and in one case was less than half an hour, is very strong indication of that. More important indication of that is the fact that, again going back to Kalven & Zeisel, which seems to be the text in terms of jury functioning that in the State of Oregon and the State of Louisiana, 25% of jury verdicts are split verdicts, whereas, across the country, only 5% of the juries hang. So, if those facts, if that survey is accurate, it would indicate that in many, many cases, five times as often as a jury would hang, the deliberative process is short-circuited by the fact that the -- a certain number of jurors are entitled to render a verdict under the constitutional procedure at issue.
Thurgood Marshall: Getting back to the assurance of deliberation, you actually don't have any. Suppose the jury on the first vote is 11-1?
Robert B. Sobol: Yes, sir.
Thurgood Marshall: And the other one, the one, pulled his chair in the corner and says “that's it buddy.”
Robert B. Sobol: Possibly, it can happen.
Thurgood Marshall: What do you mean “possibly”?
Robert B. Sobol: I mean possibly because that won't often happen, because he's --
Thurgood Marshall: But, it does.
Robert B. Sobol: Because they're instructed by the Court to engage in the process of deliberation.
Thurgood Marshall: The whole point of the jury is to recognize a time for deliberation in one word. The requirement of the unanimous verdict is in none of these. I, for one, am not convinced that there's time to settle when.
Robert B. Sobol: Well, Mr. Justice Marshall, I cannot guarantee in any particular case that the fact that there are 10 jurors for conviction and 2 for acquittal in a jurisdiction where unanimity is required, meaning there will be discussion, but in 95% of the criminal cases tried in this country, there is a judgment. There is a verdict. Only 5% are hung. That, plus the Court's instructions to the jury is very strong indication, I would think, that except for the aberrational situation, when the jurors take their first ballot and find themselves in disagreement they will discuss the case. I can't guarantee that that would happen.
Thurgood Marshall: Will you accept a six-man jury?
Robert B. Sobol: Excuse me, I didn't hear.
Thurgood Marshall: Will you accept a six-man jury?
Robert B. Sobol: I have no choice at this point. I do accept a six-man jury. I --
Thurgood Marshall: The only point is the unanimity?
Robert B. Sobol: The issue in this case is unanimity.
Thurgood Marshall: That's the only point you have here?
Robert B. Sobol: In this case, yes, sir. And in Oregon, as it happens, the jury size is 12 with 10 members concurring it.
Byron R. White: Are there any figures extent on a jury that starts out, it's deliberation split 11-1?
Robert B. Sobol: Well --
Byron R. White: And or 10-2 or 9-3, take 9-3.
Robert B. Sobol: In terms of what ultimately happens?
Byron R. White: Yes.
Robert B. Sobol: The only figures I have seen are the figures in Kalven & Zeisel in which -- and those authors say that it is rare in those cases for the jury to be 100% turned around, and if the vote is 9-3, a 10-2 conviction come out for acquittal.
Byron R. White: And the hung -- so, the hung jury cases are more likely to have been a more even split than that?
Robert B. Sobol: The initial split in the hung jury cases, the evidence seems to be, is closer than 10-2 or 11-1. It's more like 8-4 or 7-5 with --
Byron R. White: Right.
Robert B. Sobol: -- with some of the dissenting jurors changing their mind --
Byron R. White: Right.--
Robert B. Sobol: And some, holding their own.
Byron R. White: Right.
Robert B. Sobol: Yes, sir.
Byron R. White: Right, and -- so that when you get a 9-3 or 10-2 or 11-1, the odds are pretty high against the --
Robert B. Sobol: It depends on the stage you get it.
Byron R. White: Depending -- but, that's --
Robert B. Sobol: If you get it after two --
Byron R. White: That's only after some deliberation?
Robert B. Sobol: Yes, sir. If you get it after two days of deliberation, the chances are very strong that the jury is going to be locked.
Byron R. White: Sure, but that's when it starts out that --
Robert B. Sobol: When it starts out, yes, sir.
Byron R. White: An 8-7 or something.
Robert B. Sobol: 8-7.[Attempt to Laughter]
Byron R. White: Well, if it starts out 8-7 and ends up -- and, after two days it's 9-3, it's probably going to stay there.
Robert B. Sobol: It's probably going to stay there, but the procedures that are at issue in this case --
Byron R. White: But, if it starts out 9-3, that's a different story.
Robert B. Sobol: Probably, that's all that the Court can say based on the evidence. On the deliberation point, I think it's important to note that, quantitatively, the most important function of this majority verdict rule is not to avoid hung juries, but to short-circuit the process of deliberation because as I've indicated, 25% of the criminal trials in these jurisdictions result in split verdicts in situations where the nationwide evidence is very strong that a consensus would be reached, an unanimous jury verdict would be reached. So a very important function, a very important product, not functions in the sense it's intended, but a very important product of the rules of allowing majority verdicts is that the historic deliberative process of the jury is short-circuited. In going back to Williams, I would suggest the process of the jury deliberating together, exchanging views, considering the views of everybody in the jury room is one of the fundamental requisites of the jury system which we -- I would argue, under Williams, is incorporated. Now, Oregon makes a peculiar kind of answer to this assertion. It points to the English statute which was adopted in 1967 which establishes a minimum period of deliberation before the jury verdict by a 10-1 or 11-1 vote can be received and says, “well, there are other ways of doing it” and, my answer to that is perhaps there are other ways of doing it. Perhaps, unanimity is not the only way of assuring deliberation. I happen to think it's the best, but the important point for this is the Court hasn't got that before it. When some state, some American state, adopts a procedure of majority verdicts and a minimum period of deliberation, the Court can then consider the question whether that comports with the constitutional requirements, whether that's sufficient safeguard.
Warren E. Burger: Haven't we had some of those?
Robert B. Sobol: Excuse me?
Warren E. Burger: Don't we have some of those?
Robert B. Sobol: No, sir, not in criminal cases. No, sir, we don't.
Warren E. Burger: I was talking about cases generally, in civil cases?
Robert B. Sobol: In civil cases which is a different amendment, yes, sir. But, the Court has not had the question and certainly doesn't have the question on the criminal side of what the constitutional implications would be of the English statute.
William J. Brennan, Jr.: Well, I suppose, in the civil side anyway, their standard is preponderance to the evidence.
Robert B. Sobol: Yes, sir.
William J. Brennan, Jr.: And so, that does make a difference, doesn't it, in the criminal side?
Robert B. Sobol: Certainly.
William J. Brennan, Jr.: At least we'll now constitutionally require it.
Robert B. Sobol: Yes, sir, and that's the point I'm about to get to as the second essential fundamental purpose of trial by a unanimous jury. We think the requirement of the unanimity is closely related to the requirement of burden -- to the burden of proof imposed on the government in a criminal case. In Winship, this Court articulated it as a constitutional matter that that burden of proof was guilt beyond a reasonable doubt, but beyond the particular articulation, it has always been clear that there is a very high burden of proof on the government in criminal cases and that burden of proof in practice means, and has always meant, one thing, and that is convincing everybody in the jury room of guilt beyond a reasonable doubt. It's perfectly clear, as the preceding argument seem to acknowledge, that where less jurors than 12 can convict or less jurors than all can convict, it is easier to convict, less evidence is needed. Now, I don't think the question -- to give my response to your question, Mr. Chief Justice, I don't think the question in a due process in a criminal procedure case before this Court is simply whether convictions are harder or easier, obviously not. I think the question is much more complicated than that, but in this case there are two points that distinguish that. One is that you have an historic system for the functioning of the reasonable doubt standard. Reasonable doubt means you convince everybody in the jury room of something. When you tinker with that standard, when you say two-thirds will do or three-quarters will do or five or six will do, you are lowering the government's burden of proof. You are altering whatever “guilt beyond a reasonable doubt” has always meant. It's being altered in these cases and less proof will do. Now, the second thing which I think, which I think is a very important aspect of this, is that this is not a case where we're saying a particular procedural rule will alter the rate of convictions in the sense of their exclusion of confessions or exclusion of illegally seized evidence where the countervailing factor is not the correctness of the fact-finding but police conduct or administrative conduct where other factors are being weighed against the probable outcome of a criminal trial. Here, the alteration before the Court affects the integrity of the fact-finding process. As the opinions of a Court in Winship recognized, whenever there is an ex post facto determination of facts, whenever some later body is determining what happened, there's always a chance of error. The tradition of this country is that chance of error is reduced to what is considered an acceptable point by requiring every juror to concur in the determination of the jury. When less jurors have to concur, obviously, there is an increase risk of error, and that's what's before the Court, a procedure which allows a lessening of the historic protection against an erroneous conviction, the conviction of an innocent man. Now --
Speaker: The reason why I believe that is out of the fact that everybody who's tried the case knows, in some instances, the jury -- some juror become the person's arbitrary on listening and what not and, still, our law tolerates that kind of power in individual jurors.
Robert B. Sobol: Yes, that's true, and I'm certain that happens, but the --
Speaker: So you can't argue that with such a broad sweep, can you, of reasonable doubt premise?
Robert B. Sobol: Well, I think I can for this reason. The Kalven and Zeisel study, again, shows -- had found that it is a very unusual case where a jury which has split 11-1 or 10-2 at the outset will eventually hang. The notion of a stubborn juror is one that the examination of criminal trials does not seem to support, rather, their finding is that when a jury will ultimately hang by an 11-1 or 10-2 vote, that jury is one which was much more closely divided at the outset and was divided in response to very substantial difficulties in the government's case. And while the give and take of the process of deliberation had its inevitable effect on some of the dissenters, that where one or two are left, they are the representatives of the remnants of a much larger body of initial dissenters, which would indicate that it's not just an aberration of one or two jurors at the outset flouting the opinion of a much larger group, but that it's a process which evolves from a very substantial minority at the outset.
Potter Stewart: Of course, Mr. Sobol, Oregon system, at least as I understand it, is a two-way street and I wonder, as my brother Harlan did, about the breadth of your argument on behalf -- to the point that this permits the -- perhaps the arbitrary of conviction of an innocent man. It often prevents or it often permits the acquittal of an innocent man against the one or two perverse characters on the jury who, whatever that man may have said on voir dire or convinced that anybody who is charged in a courtroom is automatically guilty, because if 10 out of 12 of the jurors vote to acquit, those two perverse characters can't hang up the jury and prevent the man's acquittal. Isn't that correct?
Robert B. Sobol: That is true, but if it's a two-way street, it's a very steep hill because the figures indicate that where juries are deadlocked 11-1 and 10-2, in over 80% of those cases, they're voting for conviction. That it's something in the neighborhood of 18% of juries that are split by those votes at favor acquittal.
Potter Stewart: At the ultimate deadlock?
Robert B. Sobol: At the ultimate deadlock, so what I'm --
Potter Stewart: And you already told us that the ultimate deadlock doesn't come after an initial division of 10-2. The ultimate deadlock comes after a much more even division initially, don't you?
Robert B. Sobol: Yes, sir, that's true. But, when that point is reached in Oregon is when the verdict is allowed. If there was a greater division in the first place, they were not, by virtue of a constitutional provision, requiring 10 votes -- allowed to come in. The difference between the Oregon procedure and the procedure in the other states is that, at that point, a verdict can be -- the jury is not hung when it's 10-2 or 11-1, but a verdict can be rendered. What I'm trying to indicate is that, in those situations, over 80% of those cases are convictions.
Potter Stewart: This again is Kalven & Zeisel.
Robert B. Sobol: This is, again, sir, is Kalven & Zeisel. Secondly, I would --
Thurgood Marshall: Do I understand you that it's your position that there is a constitutional right to run the chance of having a hung jury by one juror?
Robert B. Sobol: Yes, sir. There's a constitutional right to unanimity, which means the constitutional right to having a hung jury.
Thurgood Marshall: I'm talking about the facts.
Robert B. Sobol: Yes, sir.
Thurgood Marshall: And to be retried.
Robert B. Sobol: Yes, sir. I don't know that you have a right to be retried, but yes, if the prosecutor wants to retry --
Thurgood Marshall: You don't have to worry about that right.
Robert B. Sobol: Correct. Right.[Attempt to Laughter]
Thurgood Marshall: So, you don't have to worry about that.
Robert B. Sobol: Yes, sir.
Thurgood Marshall: And, that -- the only think you have to go on is beyond a reasonable doubt?
Robert B. Sobol: No, sir. I have to go on the process of deliberation. I have to go on what's the function --
Thurgood Marshall: And where do you get that from? I'm talking about the Constitution. What's the Constitution say about deliberation?
Robert B. Sobol: Well, it's a process, Mr. Justice Marshall. The Sixth Amendment says right to trial by jury. This Court in Williams said that means those fundamental requisites -- those requisites that can be shown fundamental are in that word, in that word “jury.”
Thurgood Marshall: But did not include unanimous verdict?
Robert B. Sobol: I think it does include it.
Thurgood Marshall: That's in Williams?
Robert B. Sobol: Excuse me?
Thurgood Marshall: That's what William said.
Robert B. Sobol: Williams leaves the question.
Thurgood Marshall: We reserved that.
Robert B. Sobol: Reserved the question in Williams.
Warren E. Burger: Well, it reserved it because it wasn't there.
Robert B. Sobol: Yes, sir. I'm not arguing anything else. It was reserved. It was not decided by Williams, but the test articulated by the Court in Williams, I think resolves this case in my favor because I think that we can show, and have shown, that there is a fundamental purpose. It's not mystical or arbitrary quality of trial by jury the way 12 was found to be, but has a fundamental purpose. If I may go back to Mr. Justice Stewart's question, I think there's one other answer to the two-way street, and that is the Bill of Rights are designed to protect against erroneous convictions. I don't think this Court has ever articulated the rule that less protection against conviction can somehow be balanced off by a greater chance of acquittal. I dare say if the state adopted a procedure that prohibited the right to counsel and also said no out-of-Court statements of the defendant could be admitted, something good for them, something bad for them, I don't think it would last five minutes in this Court. There has never been a --
Potter Stewart: Well certainly the Bill of Rights is designed to protect a fair trial, the fairness of a trial, aren't they?
Robert B. Sobol: Yes, sir, and, particularly, against erroneous convictions. And, I'm saying that while there is that 18% out of 82% of the mix, Kalven seem to go in favor for acquittal, I doubt that that is a justification even if it was even, even if it was 50-50. I don't think that's a justification for reducing historic standards.
Byron R. White: Are you suggesting that the real issue here is the accuracy of the result or just the fact that there might be more or less -- more or fewer convictions?
Robert B. Sobol: I think it is the accuracy of the result. I think unanimity bears some --
Byron R. White: Do you think there's real -- there's some connection between the accuracy and how many convictions there are? I mean, do you say that because there may be more convictions with a majority verdict that the verdicts may be less accurate?
Robert B. Sobol: Less accurate and given the context of the historic preference for protecting against the conviction of an innocent man.
Byron R. White: The proof of less accuracy just doesn't follow from the fact that there may be more convictions.
Robert B. Sobol: No, less certainty, not less accuracy, no. I think you can't be sure about the less accuracy. That's true, Mr. Justice White, but I think that there is less certainty about the finding of guilt which this Court in Winship and in numerous cases, it has indicated as a prime function of the requisites of the procedure in criminal trials. I'd like to briefly touch on our last points. We think, although I don't have time to explore the point at length, that the requirement of unanimity has an important relationship with the jury cases in this Court having to do with a cross-section of the community participating in the jury decisions. I think that there is something ironic about almost 100 years of case after case in this Court concerning the panel from which the jury must be drawn, leading to the possibility that the newly included persons, the cross-section people first included on juries, minorities particularly now can be ousted from participation in the verdict by a rule which allows a 9-3 or 10-2 vote and could conceivably be a 9-3 vote against the vote, the voice of the very people that 100 years of decisions of this Court have secured the right to participate. I think the right to participate, at the very least, means the right to participate in the process of deliberation of the jury and the rendition of a verdict, not simply to sit in a jury box and go in and watch your vote which is -- could possibly go against them.
Warren E. Burger: On that same argument, that same rationale would apply to the Congress and House of the Senate, would it not? We have guarantees that make sure that any person meeting the constitutional qualifications may run for the House of the Senate, but that doesn't guarantee that they're going to have their way.
Robert B. Sobol: No, but the rationale of this Court's opinions on cross-section juries have always been articulated in terms of the importance to the defendant of not having his guilt determined by a group from which his peers have been excluded. That has not been the rationale of the election cases and I'm saying that when that process is completed and for example in Louisiana, Black people, after much litigation, are included on juries, to have the 9-3 rule which potentially puts them out of the participatory process, runs against those cases and that a necessary implementation of the cross-section cases is a rule that when you get people on the jury, they have a right to participate in the process which the majority verdict rule can substantially undercut. The --
Warren E. Burger: Don't they participate in the process?
Robert B. Sobol: Not if they go into --
Warren E. Burger: If they don't get their way?
Robert B. Sobol: Not if they go into a jury room and have a first vote which is 9-3 and come back into Court, which is the record in some of these cases.
Warren E. Burger: What difference does it make if it's the first ballot or the tenth ballot?
Robert B. Sobol: I don't think it's participating when they don't get to express their view of the evidence where they don't get to engage in what the jury has historically been which is a process of deliberation between the two opposing points of view in that Court room.
Warren E. Burger: You have to speculate a lot there to make that suggestion, don't you? You have to speculate that they were not permitted. For all you know, the foreman said “no, we'll stay here for six hours. If you want to be heard” and the three say “no, we've had our chance. We want to go home.”
Robert B. Sobol: It's possible.
Warren E. Burger: My speculation is what is valid is yours, isn't it?
Robert B. Sobol: At least, but I think --
Warren E. Burger: So, you can't really rest much on those speculated things, can you?
Robert B. Sobol: Well, I think when we're talking about altering a time-honored constitutional procedure which goes back in the decisions of this Court to almost 100 years in terms of unanimity in jury process which is integrally related to the burden of proof, when a change in that is proposed, a radical change in that is proposed in terms of the functioning of the jury trial, the chances of that change in procedure, weakening protections is a very important consideration because the Court can never be sure of a thing like that. All it can look at is what the prospects are that this alteration of procedure will have that impact, will have the impact on offsetting a guaranteed right. In this moment, I'm referring to the cross-section right, but I think that also goes to the reasonable doubt. I can't argue to this Court that there is not reasonable doubt in one of these cases. All I'm saying is that the standard of its determination has been lessened. Lastly, I would like to just touch for a moment on the practicalities here that unlike the case in Williams where many states had juries fewer than 12, here there were only two states that have non-majority -- that have non-unanimous rules except for a very small handful of cases punishable by less than one year. There are only two states that are substantially involved in this decision, Oregon and Louisiana. Secondly, a transfer from the system that prevails in this state to the historic constitutional rule is a very simple matter. It doesn't require calling more jurors. It doesn't require much at all. It simply requires the judge to instruct the jury as judges in 48 states in the federal system instruct the jury that they have to bring in the determination by a unanimous vote. And, while there will be substantially more deliberation as a result of the unanimity rule, an important point we think in our favor, the increase in hung juries as a result of this was only 2 or 3%, but we think that's a very important 2 or 3% because those are cases in which there was substantial and prolonged doubt, and that doubt should lead to either a retrial or at least not a finding of guilt in those circumstances.
Warren E. Burger: Very well, Mr. Sobol. Mr. Tanzer, Mr. Sobol has used up his entire time. We'll try to finish today.
Jacob B. Tanzer: Thank you, Your Honor. Mr. Chief Justice and may it please the Court. I will not repeat Mrs. Korns' history. I found it accurate and detailed in the brief, and Mr. Sobol has stated this case fairly. I would like to say at the outset that I am defending the non-unanimous jury verdict system not only because we have three cases, three convictions, at Bar and several others stacked up as certiorari -- petitions for certiorari pending, but because it is a good system and it works and it is to be defended. As Mr. Justice Stewart indicated in his questioning, it is a two-way street. It is not simply another darling of the prosecutor's nursery. People are acquitted in the same manner that people are convicted by 10-2 verdicts in situations which, in another state, would result in a hung verdict -- a hung jury and a retrial. And, to take just a moment with Mr. Kalven & Zeisel, before moving on, I do want to dispute one thing and these also were asked about. In regard to the ultimate deadlock statistics that they set out, out of the cases they have studied, they show 42 cases deadlocked at 10-2. 34 of them, that's 1%, were deadlocked with convicting majorities. 19% were convicted -- were deadlocked with acquitting majorities and in -- where I come from, in Multnomah County, the conviction rate is 85%. That figure where those cases allowed to go to 10-2 verdicts would have been favorable to the defendant, not to the state, by an insignificant percentage. And, in cases of initial voting, they sampled 156 cases and of those, none, which began at 11-1, were hung. Those which went with initial votes of 2 or 3 to convict were hung. There were 7% of those hung, and the reverse situation there were none hung. So, again, those are juries likely to convict -- pardon me, likely to acquit where 7% were hung. So, even on that statistic, this system -- it would seem, according to those figures, are favorable to the defendant and not to the state. I'm here to defend it because Oregon believes it to be a good system and the American Law Institute agreed with that in 1931 when it recommended it and substantially the form which Oregon adopted, as well as an Oregon Commission which had many distinguished members including the Senator to be, Wayne Morse. The English adopted the same system, somewhat modified, requiring a minimum deliberation time in 1967. The American Bar Association project on minimum standards of criminal justice have approved -- that's the wrong word, endorsed the system for us in the American states and a very extinguished panel both on the groups which drafted the report and the general project committee headed by Judge Lombard which approved it in 1968, and I'm speaking, therefore, of the approved draft and not the tentative draft. In Oregon, as sort of a lab model in the federal system, has shown that it works and the experience in Oregon has been that it seems to sort the innocent from the guilty and it does it in a way which is fair and which is accurate and which is expeditious and that's what the criminal justice system is suppose to do. There is no cry of injustice which I am aware. There are theoretical objections raised, such as Mr. Sobol's, but no one has claimed injustice, most certainly no more so than in states which require unanimity. Kalven and Zeisel, in an article -- in a subsequent article which they wrote as sort of an advisory article to the British who were considering the Criminal Justice Act of 1967, recommended against adoption of that Act, but they also acknowledged that the Oregon system works. It achieves justice fairly. There's no breakdown of justice in Oregon, and there is no breakdown and no cry of injustice in these cases either. Two of the defendants in the cases before the Court took the stand and admitted guilt. One admitted complicity, the other one admitted guilt and asked for sympathy and, in the third case, he was convicted on the basis of a voluntary confession and he did not present a case or, in any way, deny it. They were out, granted, for periods of under an hour, but no jury faced with those facts could or should have acquitted. Those would've been miscarriages of justice. I do want to briefly mention history which has already been discussed. The senate did delete the unanimity requirement of the Sixth Amendment. The House failed to restore it. The reason is clear. It is not as Mr. Sobol suggests that it was not necessary to detail the procedure because that was understood as a part of the amendment. Rather, we get the history from Madison's letter at the time, which is referred to in Williams versus Florida and which I refer to in the brief. We get the similar history of Article III, Section 2 from the Federalist No. 83. The reason it was not included was because the practice of the states at the time was diverse, and therefore, there was not the inclination to lock all the states into one uniform system and, as the Chief Justice has pointed out, 4 -- at least 4 of, which I'm aware, of the colonies, North Carolina may have changed by then, did practice non-unanimous systems and that's 4 out of 13. New York had a strange system which the Federalist refers to, where there was an appeal as a matter of right from one jury to another until somebody had 2 out of 3 verdicts, which is essentially a 24 out of 36 vote, two-thirds vote. So, the practice was not uniform and that is the reason it was not locked in. Counsel suggests, I think incorrectly, that this Court write into the Sixth Amendment what the Senate or the framers took out. The federal unanimity, incidentally, is statutory, at least in my view. I point out in my brief at page 19 that the effort at the convention to insert in Article III, Section 2 the language “and a trial by jury shall be preserved as usual in criminal cases” was defeated and the constitutional conventions of Eliot's debates shows it and, again, the argument was there's no such thing as “as usual” at this point of history in the American colonies.
William J. Brennan, Jr.: How old is the federal statute, do you know?
Jacob B. Tanzer: I can't tell you, Your Honor. I didn't research it because it wasn't an issue, but I think we can say that it does not come from the Constitution and since they all do it, I would expect --
William J. Brennan, Jr.: I wonder why the --
Jacob B. Tanzer: Pardon me?
William J. Brennan, Jr.: It might be a nice question why did Congress think we had to have this statute?
Jacob B. Tanzer: I don't know. I think that's precisely my point though, Your Honor. It is a legislative determination and not a constitutional one. I do not --
Byron R. White: You don't think the -- this Court has previously said that unanimity is a constitutional requirement?
Jacob B. Tanzer: It most certainly has, Your Honor, in several cases. However, in none of those cases was unanimity truly an issue. There are a few such as the Hawaiian case, Mankichi, where unanimity was an issue but the Court sidestepped the constitutionality of it.
Byron R. White: Territorial question.
Jacob B. Tanzer: That's correct. Same with Utah, but it was never actually the issue of any case. It was never actually the issue which had been resolved.
Byron R. White: At least we indicated in Williams the question was open?
Jacob B. Tanzer: You indicated in Williams that the question was open and there was some statement in Williams also that the Court reserves the right to change its mind about the Sixth Amendment and, that, of course is our fear. In Duncan, the Court spoke -- actually the historical argument would seem to me -- the history of the Sixth Amendment would seem to me to be the end of the issue in terms of unanimity. However, I wish to follow counsel's argument into other constitutional areas. It's clear under Duncan, given what the English had done and what is the practice in this country that it is not -- unanimity is not an essential part of the Anglo-American regime of ordered liberty, which was referred to in the case. Counsel's -- the most troublesome problem I think that counsel raises is the -- and the one that's mentioned in footnote 46 of Williams is the idea, which I think to be a false idea, that the requirement or that the allowance of non-unanimous verdicts somehow reduces the standard of proof beyond reasonable doubt, and I'd like to talk to that point at some length because the other points are not nearly as complex.
Potter Stewart: I hope -- let me just interrupt you at the outset that you don't spend all the balance of your time on that point because frankly for me, I think the most troublesome or the most affected part of counsel's argument is this. That after 100 years, after I don't know how many dozens or hundreds of cases -- decided cases in this Court hold to the effect that the Constitution requires a representative jury and, particularly, requires that representatives of minority groups be on juries. And, under the Oregon system, let's assume a jury of 10 White people and 2 Negroes, the jury can go into the jury room. The 10 White people or the foreman could say “you two Negroes go over there and sit in the corner and we 10 White people are going to decide this case.” That, to me, is the most -- at least a very effective part of his argument. I hope you'll deal with it if you can.
Jacob B. Tanzer: I will right now, Your Honor. Such a thing obviously can't happen. There's nothing to compel any jury to act with integrity. It cannot, but the Equal Protection Clause --
Potter Stewart: That would be in conformity with the Oregon system, wouldn't it?
Jacob B. Tanzer: It could happen.
Potter Stewart: Nothing corrupt or dishonest about that. That would be in conformity with the Oregon system.
Jacob B. Tanzer: No, I don't think -- no, I'm sorry, Your Honor. The Oregon system also instructs jurors to listen to the arguments of their other fellow jurors and to deliberate. It would be the corrupt jury which just says “I do not need to listen to you. Go wait in the corner,” but --
Warren E. Burger: If that unique situation arose or even prompt the word “unique,” if that arose, the foreman certainly would be freed with system going back in and having the judge re-instruct the jury on its function, would he not?
Jacob B. Tanzer: Yes, I'm not sure that that would be an effective remedy, in all candor though, Your Honor.
Warren E. Burger: Well --
Jacob B. Tanzer: If somebody is --
Warren E. Burger: It's one way, having the -- having some clarification, if not purification, of the jury function.
Jacob B. Tanzer: Certainly, but I think the equal protection argument has to be answered in terms of the remedy which the law has fashioned for it, and that is the bar against systematic exclusion of minorities. That's the evil which the Fourteenth Amendment has attacked, the Equal Protection Clause has attacked. That's the one which this Court has dealt with and when we talk about participation in the deliberative process, we are saying that no group should be excluded from it, but we are not saying -- I don't think that each group has to have a veto power or can, simply by its own will, frustrate totally the decision making process. And, the thought also smacks a little bit of the idea, which I don't like, that somehow a minority group member on a jury trying a minority group defendant are somehow the delegates or the representatives of that man on the jury, and I don't believe that that's true on what closed jurors --
Potter Stewart: Whatever its rationale, and there are certain maybe several different rationales that had been proposed as a justification for this, the Court has held that no minority group may be excluded from juries, as members of minority groups and so, the decisions of this Court have rather taken the hypothesis that they are representatives, if you will.
Jacob B. Tanzer: Right.
Potter Stewart: And yet the Oregon system allows the majority of the jury itself, the five -- the 10-men majority of the jury to exclude two of its members from the jury effectively.
Jacob B. Tanzer: It does not allow the jury to exclude them. It allows 9 -- 10 members of the jury to outvote 2 members. It requires the jury to listen to the views of each other but as I say, it goes to nobody, the veto power. It goes to three, the power to frustrate.
Thurgood Marshall: On the other hand, the prosecutor could challenge both of them to take them off the jury.
Jacob B. Tanzer: Exactly.
Thurgood Marshall: And this Court hasn't been able to find anything wrong with that.
Jacob B. Tanzer: Exactly right, they could, Your Honor. I don't think there is any complete and total safeguard against such a situation which incidentally does not appear to be the case in any of the cases --
Thurgood Marshall: As of now.
Jacob B. Tanzer: I say in these cases before the Court, yes. But, certainly, there are a few rules that cannot be frustrated by men who wish to frustrate them and you balance that interest, I would think, against other interests to be served by the jury system. In regard to the “beyond reasonable doubt,” the standard of proof question, I want to say that the non-unanimous system does not in any way diminish the requisite standard of proof, contrary to counsel's argument. Beyond reasonable doubt is but one available standard of proof, it's the one applicable in criminal cases. There's also preponderance of evidence. There's also clear and convincing evidence, and these standards of proof in the appropriate cases are to be applied by the person or persons who are authorized by law to make the decision to find the facts. In some cases, that's a judge, that may be jurors, and may be a proportion of the jurors, and in equity cases it can be a proportion of appellate judges, majority of appellate judges or such other person as the law authorizes to apply the standard of proof to the evidence before them. We do not say, for example, that it takes -- well, it is not a function of a number who must concur the standard of proof is not. We do not say, for example, as counsel might have suggested, it takes 7 out of 12 to find a preponderance and 9 out of 12 to find clear and convincing and 12 out of 12 to find beyond reasonable doubt. That is a confusion of what the standard of proof is, and if we accepted the fact that disagreement between 10 members of the jury and 2 members of the jury was in fact due to the existence of reasonable doubt, then we would have to take such a verdict not as a deadlock but as an acquittal and retrial would be barred. Although, this Court has said that in such situation retrial is not double jeopardy. Williams versus Florida established beyond doubt that the number of the jurors who deliberated is not an essential to the quality of beyond reasonable doubt. Counsel in that case argued no doubt that you had -- that if you had to persuade 12 to achieve reasonable doubt, 6 would be a lesser standard of proof. Williams versus Florida said that, beyond reasonable doubt, the achievement of that standard does not depend on the number of jurors who must find it, who must apply the standard and I say, similarly, it doesn't control the proportion of the number who must concur. There is nothing magic about unanimity. If we had a system wherein 999 out of the thousand jurors had to concur in order to achieve a verdict, that would be a higher standard of persuasion than would be the persuasion of 6 jurors unanimously. There is nothing magic in unanimity itself that helps us achieve the proper standard. The requisite number and the requisite proportion of the jurors needed for decision seems to me to depend upon the function to be served by the fact finder. The -- for example, the Constitution allows the trial of the President for high crimes and misdemeanors by, at that time, 18 out of 26 senators. That is sufficient for that purpose. Williams versus Florida states that the purpose of the function in jury is -- pardon me, the purpose and function of the jury is several fold but primarily it is to act as a shield against governmental oppression by the substitution of community judgment for official judgment. Of course, that particular function can be accomplished by majority -- by simple majority which I do not propound. It speaks of the inner position between the accused and his accuser of the common sense judgment of a group of laymen and it was -- the reason was clear. The colonists did not trust judges. They had experience with the colonial judges and they didn't like it, and they took that decision away from them. And then, you also find in the literature, particularly from story, that it is also to act as a shield against popular oppression, and I think there is where the requisite number attaches and I think this reflects to the equal protection argument which Your Honors were considering, and the question must be what proportion is a sufficiently substantial shield to protect against that oppression. I don't know how you can draw a scientific measurement to say which line is enough, which proportion is enough, but I think we can say fairly that 10 out of 12 is sufficient to accomplish that purpose. After there has been a fair selection process of a representative array, a representative venire and after there has been voir dire in the process of challenge, it is a high burden for the District Attorney to overcome to persuade 10 out of 12 beyond reasonable doubt to convict, and they are not going to do it without substantial or clear evidence in front of them. I think, for example, I hark back to the only such period during my lifetime, the days when McCarthy was popular or was prevalent and I think back to that time and I cannot imagine, although most of the abuses at that time were legislative rather than judicial, that a jury of 12 people so chosen would, without sufficient facts before them, be carried by the tide of public temper to come to an unjust verdict. 10 out of 12 would protect in that sort of situation. Militants, today, against public temper runs are acquitted when appropriate in the Courts of Oregon and convicted when appropriate. There are several other factors which influence the size and the requisite majority that are listed out in Williams and Florida and speaks of group deliberation. There is no way, as the Court pointed out, to compel deliberation, you cannot. You can encourage it. The English system of requiring those two hours seems to me a commendable sort of device. It doesn't happen to be in the Oregon procedure. It is not necessary however, it seems to me, to write something into constitutional granite to freeze the majority system for all time, particularly when the contrary is being advocated by really the American Bar Association project.
Warren E. Burger: You haven't -- you want me to glancing reference to the power of the Senate in a trial of an impeachment to convict by a two-thirds vote. Do you read into that expression any negation of the -- or any reinforcement of the idea that that's related to Mr. Madison's unsuccessful effort?
Jacob B. Tanzer: No. I draw no connection, Your Honor. I think it is simply an illustration of my proposition that the number and the proportion among that number which is necessary to make a decision depends upon the nature of the decision to be made, the gravity of the consequences, and the accuracy which is required.
Warren E. Burger: Well, hardly any crime could be more serious than the impeachment of a President of the United States or Judge Chase's impeachment when he was on this Court and yet, the founding fathers were willing that that be done by two-thirds?
Jacob B. Tanzer: They were indeed, Your Honor, and they were not willing to write unanimity into the Constitution in dealing with jury verdicts. Your Honor, many of the commentators note that this is a flagrant exception to the normal human -- to the normal civic means of making decisions. There is no other area in which we require unanimity or at least nothing known. Courts are not required to be unanimous. Legislatures are not required to be unanimous. They may be required to be representative, but not unanimous. Committees, corporations, parliamentary procedure, nothing requires unanimity except jury verdicts, and that's a historical accent and that the case for historical accent is clear as Mrs. -- the lady from Florida put it, Mrs. Korns. Now, it stands out as an exception among the common law nations and not all of those, few of those. Australia, interestingly, has -- their Constitution is modeled in our Sixth Amendment, the appropriate portion. And, either all of the provinces or dominions with maybe one exception have, at one time or another, adopted non-unanimous systems. One of the factors incidentally, and this was the most important of the English and it's noted in Williams versus Florida, is that the body must be such as there would be some guarantee of freedom against outside attempts and intimidation. While that is not an immense problem, it is a serious problem and it is an increasingly serious problem with the growth and development of organized crime. This case -- this Court has dealt with similar cases Hoffman (ph) and, most important, the Court said that the number of jurors must relate to the role of the jury as fact finder. The goal of the jury system is not deadlock in its decision, and I -- and we argue, I think correctly, that the role of fact finder is better performed under the non-unanimous system partly because there are fewer mistrials because of deadlock, but also because it does so with less compromise. We can at least speculate, or you cannot prove it, that the juries are more accurate. The verdicts are more accurate. I do not think that the highest function of the jury system is to achieve obvious compromise verdicts, petty larceny convictions for theft of Cadillacs or other such verdicts. It is to decide accurately and we allow non-unanimity in other situations. First of all, we pressure our jurors into unanimity and regardless of the safeguards around the Allen charge, that's all the Allen charge is, is a pressure upon a juror to come to unanimity in other jurisdictions, we do not in Oregon. We do have them go back when they report deadlock so they can come out unanimous, and jurors do come over for all sorts of reasons. That is not a necess -- that is not -- that is carefully guarded against in the Oregon system.
Speaker: Do you think that in order to decide this case in your favor we have to hold that the Sixth Amendment in federal crimes is not required?
Jacob B. Tanzer: Williams versus -- I think not, Your Honor. I think your reasoning would probably be equally applicable but it's not necessary for the Court to hold it because Williams versus Florida seems to indicate that the states will be allowed to fashion its own system so long as it incorporates functionally essential features. Whether you wish to put this --
Speaker: Well, the jury reserved this question, wouldn't you say, that no more to protect it?
Jacob B. Tanzer: I --
Speaker: In Williams?
Jacob B. Tanzer: Yes.
Speaker: And Justice White's opinion didn't do anything more than reserve the question of unanimity?
Jacob B. Tanzer: Correct, but I say the standard I would expect to be so.
Speaker: How do you think we can decide this case or to put my question again?
Jacob B. Tanzer: I would say, first, the Sixth Amendment does not apply because it was stricken from the Sixth Amendment. Secondly --
Speaker: Well, what's that --
Jacob B. Tanzer: Other --
Speaker: What's that first?
Jacob B. Tanzer: The Sixth Amendment does not require unanimity because the requirement of unanimity was struck.
Speaker: Well, that's deciding the question for the federal system.
Jacob B. Tanzer: Correct.
Speaker: By a state case.
Jacob B. Tanzer: Correct.
Speaker: We'll have a regression line analysis.
Jacob B. Tanzer: Correct.
Speaker: And my question is can we decide this case in your favor without deciding it?
Jacob B. Tanzer: I -- well, Your Honor, distinction does not come to mind. Due process means due process. There is no distinction that comes to mind at the moment.
William J. Brennan, Jr.: That would remain in the federal statute?
Jacob B. Tanzer: It would remain in the federal statue, quite right, and they would be free to change.
Hugo L. Black: You sure you think due process means due process?
Jacob B. Tanzer: Well, it's supposed to. [Attempt to Laughter] I am not sure sometimes what it does mean. I do want to say we have other examples of non-unanimity which we allow. I point, for example, to a common situation of six jurors who agree on premeditated murder and six who agree on felony murder. Yet, we don't question if they are not all in agreement. I do think that the system is good because it works, and I don't think that, as a general kind of matter, due process is designed to forbid that which works fairly, that which works expeditiously, that which works well, and this does in Oregon.
Warren E. Burger: Thank you, Mr. Tanzer. Thank you, Mr. Sobol. The case is submitted.