Warren E. Burger: We will hear arguments next in number 5046 Apodaca against Oregon. Mr. Sobol, you may proceed whenever you are ready.
Richard B. Sobol: Mr. Chief Justice and may it please the Court. In 1968, this Court decided Duncan against Louisiana in which it held for the first time that the Sixth Amendment right to trial by jury is applicable to criminal trials of State Court by virtue of the Due Process clause of the Fourteenth Amendment. A month later in DeStefano against Woods, the Court held that the holding in Duncan would only be applied to cases tried after the date of the decision in Duncan. After Duncan, the three petitioners in these cases were tried in Circuit Courts of Oregon for serious crimes and each of them were convicted by a split verdict under the procedure authorized by the Oregon constitution of allowing a criminal verdict with 10 out of 12 juries concurring. The votes in the respective cases were 11:1 and two of them in 10:2 in the third. The jury in each of these three cases was out of the Courtroom in the jury room for less than an hour in one case for less than a half an hour. The convictions were appealed to the Oregon Court of Appeals raising the argument that the Sixth Amendment rights annunciated by Duncan had been violated by the acceptance of a split jury verdict and the Court of Appeals of Oregon following a very recent decision of the Supreme Court of Oregon affirmed the convictions and held that the Sixth Amendment does not guarantee the right to a unanimous Jury verdict. The Supreme Court of Oregon refused review of the cases and the cases that here on certiorari to this Court. The question therefore, which is presented in light of Duncan and DeStefano against Woods, is whether the Sixth Amendment permits a conviction for serious crime without a unanimous jury verdict and I would like, to in light of the arguments made with the State of Oregon, define that question even further and that is where there is no state procedure for minimum periods of deliberation, which is the case here, whether the Sixth Amendment permits a conviction of a serious crime without a unanimous jury verdict.
Speaker: In your view would a minimum period for deliberation make a difference, Mr. Sobol?
Richard B. Sobol: I think it would be a different case. My personal view on it was that, it would still not be satisfactory but the reference in the State's brief to the English system on the proposal of the American Bar Association are systems and proposals which as part of them secure a minimum period of deliberation. The draftsmen in both those cases recognize what we think is a very important value lost by the Oregon system of requiring jury deliberation and I think when and if that case ever gets here, the Court would have different question. If another provision is made to ensure deliberation, whether or not that insurance is satisfactory. Now in 1970, in Williams against Florida, the Court passed on the question of the six man juries in Florida. And the Court held that although there had been a six manned jury historically at common law and although the Court in past have indicated that the Sixth Amendment does in fact require, I am sorry there had been a twelve man jury at common law and although the Court, this Court had indicated in the past, the twelve Juries are required under the Sixth Amendment and reconsidering the question, the Court made a two-step analysis. First, it said that the history of the constitution, the history of the Sixth Amendment left the question open. That it was impossible to tell from the historical materials what the draftsman of the Sixth Amendment meant on this point. And Mr. Justice White for the Court said, the way we are going to determine which feature of Jury trial right at common law is incorporated in the Sixth Amendment is to determine whether the feature in question serves an important purpose in terms of the functioning of the jury system. It is a practical test to be applied. Applying that test, the Court held twelve men are not required and specifically left open with the question of whether a unanimous jury verdict is required. Now, we are arguing this case squarely within the holding and the test annunciated in Williams, and we think the application of this test resolves the case in our favor, because the requirement of a unanimous jury verdict serves four very important purposes in terms of the basic function of the jury process. Those four purposes are, it ensures that the jury enters into meaningful deliberation. We think it serves an important purpose in maintaining the reasonable doubts stated in criminal trials. We think it maintains an important purpose in giving meaning and effect to this Court's decision, requiring it of a cross section of the community jury decisions and we think it serves an important function in terms of community. We respect in confidence in the processes of the criminal law and in convictions for the secured criminal cases. And I would like to discuss each of these four functions to indicate their breadth.
Speaker: Mr. Sobol, as you do so, those are good arguments for a policy matter. Will you emphasize the constitutional aspect sought from as you go along.
Richard B. Sobol: Yes sir. They are constitutional in this sense, interpreting the Sixth Amendment in Williams against Florida. This Court said that the way to resolve the constitutional and to the issue of constitutional interpretation in the Sixth Amendment, what does jury mean? It means something and the Court said in terms of deciding what it means, we are going to look to it, the functional importance of the requisite of a jury trial on issue here. That was the Sixth Amendment test enunciated by Mr. Justice White for the Court. We are simply taking that test and arguing this case that unlike any fixed number of juries, the requirement of unanimity is a concept which serves very important functions and therefore meets the constitutional test enunciated by the Court. In 1896, Allen against United States, this Court said the very object of the jury system is to secure unanimity by comparison of use and by arguments among jurors themselves. The unanimity requirement is the aspect of the jury trial system which ensures that the jurors will go into the jury room and exchange views. The work that has been jogged down in the jury area by Kalven and Zeisel indicate that in States such as Oregon and Louisiana, the two States that have split verdicts.
Warren E. Burger: Was Allen a Federal State or a State case.
Richard B. Sobol: Allen was a Federal case Your Honor.
Warren E. Burger: Very well, and was not the court addressing itself to the jury system as then established by acts of the Congress?
Richard B. Sobol: I think in Allen, the Court was talking about the jury system constitutionally. It was a case having to do with a choice of the jury trial and did not raise this issue. I am just indicating that in Allen, the Court was referring to the operation of the system and what was important functional.
Warren E. Burger: Well, the Court was certainly aware then as we all are now that when the Sixth Amendment was proposed, it was proposed to have the unanimous verdict. Was it not?
Richard B. Sobol: There was an amendment in the house to include unanimity as the specific requirement of the Sixth Amendment. That Amendment was unsuccessful in analyzing that exact Amendment in Williams. The Court said that it is not possible to determine whether the unanimity requirement, along with the other aspects of that Amendment was stricken because everybody knew the jury trial meant unanimity or because the Congress did not wanted it. And in approaching this case Your Honor, we have simply accepted the very recent interpretation of that very legislative history in Williams and accepted that conclusion that it is 6 of one half dozen that the other, it is impossible to determine from that with legislative history what exactly the framers had in mind. I would point out that the major controversy concerning that amendment did not have to do in any respect with the requirement of unanimity. The main argument about the Amendment was a proposal to put vicinage in the Sixth Amendment, to require that a specific district as a common law be incorporated in the constitution. The debate was about that point as the journals of the constitution reflected so on in our brief and that the Amendment was deleted with respect to that issue. The whole of Amendment was deleted but that the controversy, that the congress was focusing on was the vicinage requirement which was not a desired to be included and with that, the entire subsection was deleted. Analyzing that as I said in Williams, the Court said you really cannot tell what the Congress meant in its drafting and that again, the question has to be decided in terms of whether the issue, the requisite is functional in terms of the jury system. Now, the unanimity requirement means that the jury cannot come out of the jury room until everybody agrees, and because everybody has to agree, the process means that everyone sits out at the table and hears the views of all the juries and this is important because, the idea of having more than one juror is that different jurors are going to see the questions differently and are going to have different perceptions of the evidence and the reason that a jury verdict is a fine a thing as it is that if everybody’s view of the evidence, everybody’s interpretation has been merged, has been handed out, has been considered by everybody, so that when the jury comes out of the jury box in the jury room and announces its verdict, you have a collective judgement which is considering the views of everybody. Now –
Warren E. Burger: Justice Blackmun suggested, is not that the policy argument that led to, was either four or six of the States of the original 13, to insist upon a unanimous verdict provision written into the constitution. Is it not that -- are you not arguing the policy desirability?
Richard B. Sobol: No sir. I am saying that when in this country, you talk about juries. Its intrinsic meaning means unanimity that the jury system does not function as we know it without unanimity and Mr. Justice White in Williams said that is the question the Court must ask when it is up for consideration, whether a particular feature is included in the Sixth Amendment. I am simply taking up that test and saying that without deliberation, you do not have a jury as we know it in this country that the -- as the court said, the very object of a system is to secure unanimity by a comparison abuse and by an arguments among jurors. Now in –
Speaker: Mr. Sobol.
Richard B. Sobol: Yes sir.
Speaker: (Inaudible)
Richard B. Sobol: Well, I think no. It would not apply. I think that there are, as the Courts recognized innumerably are the case like In re Winship comes to mind. There are certain interests at stake in a criminal trial by which the society has historically wanted to be very careful about erroneous convictions. The risk of error in terms of a criminal conviction has historically been thought in this country to be a much more serious matter than the risk of error in a civil case that enumerable procedures have been established in criminal cases to lessen the risk of error in fact finding which is always present. Now, I think the absence of unanimity certainly increases the risk of error and the risk of an erroneous conviction and I think that the consideration, the stakes in civil cases are very, are different and a very important spec.
Warren E. Burger: Would you say if there were requirement in the statute of Louisiana that they must deliberate 6 hours or 8 hours before they could return in less than unanimous verdict, would that satisfy you?
Richard B. Sobol: Well, Your Honor personally, I think that there should be no time limit, there should be no procedure whereby the majority can simply sit out the minority. But I do, very firmly want to indicate to the Court that I think that is a very different case and I do not think Oregon can defend its procedure in this Court by saying well, in England; there is a minimum period deliberation. A minimum period deliberation is undoubtedly a step toward retaining this feature of the jury system. In States like Oregon, when the jury goes into the jury room and takes its first vote. If they voted 10:2, there is no discussion. They return to the jury room and announce that verdict. If the vote is 8:4 and after an hour it turns to 10:2, there is no further consideration of the minority viewpoint. Now, in these cases, the juries all out a matter, minutes and I think that whatever maybe the ultimate decision where a State adopts a minimum period of deliberation system as they have in England and at the American Bar Association has recommended, it certainly has no relevance in defending the constitutionality of this system
Speaker: Mr. Solbol, help me out a little bit. If Oregon provided for 24 man juries instead of 12, would you be making the same argument?
Richard B. Sobol: Yes.
Speaker: Well then, what your argument amounts to is this. If you had a 10:2 vote, the jury, you would like to have a hang at that point if there were no ultimate persuasion, then you would be content with a new trial and then if a second trial came along on precisely the same evidence. Now, I realize that is a big assumption and the jury convicted. Actually, your vote would be 22:2 and yet you would be content with this result.
Richard B. Sobol: Well, they would have been a 12 man jury which would have conceited the evidence. Which would have deliberated and which would have reached a verdict and I think the first jury would not be relevant. In my view, if there was a 24-man jury together and 22 voted. Yes, I guess I would make the same argument. I think that there is an important value of the jury system in hearing what the different view points are. That is why you have more than one jury, more than one juror because people see things differently. That is one of the basic human lessons and you want to give what everybody has to say. That is what a jury system is and I think if you were to exclude that in the process and in the jury room, I would make the same argument regardless of the number.
Speaker: Well, then I guess what I am suggesting that it maybe an invalid assumption is that a lot depends on the luck of the draw, of the jury composition.
Richard B. Sobol: Certainly. A lot depends on the luck of the draw, but once it is drawn, the system is to hear what everybody has to say before a vote in written at the very least and I say more than that to work it out so if you do have a unanimous collective judgement. Now, my second contention with respect to what the function of unanimity is, has to do with reasonable doubt as the Court knows in Winship, it indicated the reasonable doubt stands as constitutionally required. Now, reasonable doubt was developed in the context of a unanimous jury verdict. What it means that a prosecutor has to convince every juror to convict this man and specifically what that means is the juror with the highest standard, the most doubting juror must be convicted. I think it is beyond argument that when you say the prosecutor needs to only convince less than all the juries, that he needs – that a lesser burden of proof is being put on the state. The convictions on less evidence, conviction without convincing all the people are being allowed. More evidence would have secured all the juries vote but with less evidence, ten or nine in Louisiana is being allowed. The most difficult jurors to convince need not be convinced and therefore, I think it is plain that the standard of proof in criminal trials is being lessened by a rule, which allows a majority verdict. Now, just very briefly on the figures, Kalven and Zeisel study have revealed. Across the country, 5.6 of the juries hang. 5.6% of juries hang and Oregon, 3.1% of the juries hang. What that means is approximately 2 and 1/2 % of all the criminal trials. You get a verdict in Oregon where you would not get a verdict elsewhere and we think those are the hardest cases obviously. The cases that would have otherwise hang up. The cases that have the greatest doubt associated with them and it is those cases in which Oregon is permitting criminal convictions where other states do not. Now the Kalven and Zeisel--
Speaker: You must go and get a better picture over there, how many of them are convicted in retrial?
Richard B. Sobol: Yes. Which I do not know but some are not but that is true.
Speaker: That I do not think is true--
Richard B. Sobol: I do not believe that is true. If they do, I had missed them, I do not believe they are in there, their convictions are not going to retrial, perhaps I am mistaken. But what Kalven and Zeisel does say and has determined from their empirical data is when a jury is hung 10:2 or 11:1 at the end of the process of deliberation. That reflects greater dissent at the outset. That where the first vote is 11:1 or 10:2, the jury will not hang, but it is where that there is 8:4, 9:3 and a process of deliberation succeeds only in wheedling down that number to two or one. That the jury would not hang and their conclusion is that those are the very cases in which they is substantial doubt or the jury cannot resolve the doubt and those are the cases whether historical judgement is that the jury should be hanged up. Perhaps on retrial, there would be different evidence, more evidence, less evidence that might result in a judgment one way or the other but at the trial which is being held, there is doubt which cannot be resolved and those are the cases which historically have resulted in hang juries with the option of the State to retry.
Warren E. Burger: All of those arguments that you suggest would amend themselves to persuading the States and Federal Government to have 18 jurors or 24 jurors because your incidence of the skeptical juror would increase. Would it not?
Richard B. Sobol: The incidents would increase but the Court is interpreting the constitution and there is a deviation from the historic standing which is only been recognized by this Court which is proposed here. I am simply arguing for the maintenance of that standard not for something new had left argument Your Honor, after whether we simply decide these cases on how you make convictions most difficult and I am saying obviously, that is not the test. But where you have a system and the system here is unanimity and the reasonable doubts standing is developed within the context of that system. And then the State comes along and says well we are going to have lesser proof. Then, I think it is the occasion for the Court to say that deviation is not allowed because that is a significantly lesser protection for the defendant than what the historic system has been. In Williams, the Court said 12 or 6 is not going to make any difference in terms of the defendant's chances of winning or loosing that case. Here, we think its plain that when 10 are voting one way in two or the other and the two cannot be convinced, you are making a difference. You are lessening what you need for a conviction and that is a deviation from the reasonable doubt standard.
Speaker: Mr. Sobol, wanted to tell, it slipped my mind. If you have a vote of 10:2 for acquittal, under the Oregon system, is that an acquittal or is it a hung jury and not acquittal.
Richard B. Sobol: Is an acquittal.
Speaker: is an acquittal?
Richard B. Sobol: Yes.
Speaker: And you would not object to that?
Richard B. Sobol: Would I object to the acquittal if I represented the defendant? No, I would not object to but I do not think it has much to do with the issue before the Court which the deliberates concerns, protection against conviction, what you have to do before you can convict a man in the Court in this country. I do not think you can balance off lesser protections against conviction by a rule, which allows a certain number of addition or acquittal. I should also say that the indications are and they may or may not be accurate but the study indicated by Kalven and Zeisel indicate that 80% of those extra verdicts in Oregon are convictions. Now, my third point as to the functioning and I must be very brief on this. The third point as to the function of the unanimity requirement has to do with the cross section cases of this Court. The Court has held a cross section of viewpoints must be represented on the jury. I am not going to argue this in terms of a race or any particular minority but it is very perfectly clear from scores of cases in this Court that there is an important function of a jury system is to get a cross section, to get a spectrum of use or any –
Speaker: In any large city today, have you ever heard of a cross section jury? What you mean is the panel to be a cross section.
Richard B. Sobol: The panel must be a cross section and the jury --
Speaker: But not the individual jury.
Richard B. Sobol: No, but when the jury is finally chosen. We have done what we can to ensure a mix of use, it is not –
Speaker: Would you agree that a cross section of New York, you have to have about 40 jurors?
Richard B. Sobol: Yes sir. I would. I think that you come as close as you can within the concept of 12 or whatever the number is. That there is a--
Speaker: On your point about persuading them, to prosecute a job, he would not work as hard with a six-man jury as he would with 12, is that your argument?
Richard B. Sobol: Well, the Court said in Williams, that is no true. The Court said that there is no significant difference and I do not re-argue that. I do not have a question before me.
Speaker: (Inaudible)
Richard B. Sobol: No. I do not think that is true. I think what Mr. Justice White said in Williams is that 12 is not 40 any way. You are not going to get a perfect cross section either way and 6 as to 12 is not going to make that substantial difference in the cross section. That is different from saying this man is on the jury, we have done our best to get a cross section. It is not scientifically accurate but we have done our best, there he is, he hears the case but his views are not going to be considered in the jury room because the first vote that has taken shows him to be in a minority, which is acceptable, and if the jury returns without hearing his views, without incorporating his views. Now, it is a difference in degree but I certainly think there is a difference where you got the man on the jury after being selected and he is excluded by virtue of the process.
Speaker: You say that does not work if it is attended to vote for acquittal because the protection is against improper conviction. The same theory does not work.
Richard B. Sobol: I think that in both cases, you are excluding a viewpoint. But if the State wants to do something and make convictions, acquittals easier, I am not here to argue against it. I do not think that raises a constitutional issue. But certainly, either way, you are excluding a viewpoint. But when the viewpoint is being excluded and a conviction is resulting, I think it raises questions under the Sixth Amendment. Now, the last point on the functions of the Jury system has to do with the public respect and confidence in criminal jury verdicts. In Winship, the Court referring to the reasonable doubt stand. It said, it is indispensable to command the respecting competence of community in the applications the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that these people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his affairs has confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper fact finder of his guilt with utmost certainty. Now, in Oregon and 25% of the criminal trial who have a divided verdict. Now, I think that that is a serious matter in terms of public confidence in the certainty of a criminal verdict. That there is something historically about everybody going out and everybody coming back and saying guilty which resolves doubts at large about what is going on in Court. When you got a quarter of the cases where the jury is not in agreement, I think that is a serious matter in terms of public confidence.
Warren E. Burger: Are you suggesting that there is a lack of public confidence in Oregon?
Richard B. Sobol: Well I have never been to Oregon. Your Honor, I do not know but I think that if you have division in the jury, which has not been resolved in a quarter of your cases, that is a serious matter in terms of the historic operation of the criminal system in this country.
Speaker: (Inaudible)
Richard B. Sobol: That is doubt in my mind about that many split verdicts particularly where it is so unnecessary because while they are having 25% divided verdicts. If the jury was allowed to finish its process of deliberation, the nationwide figure indicates that the huge majority of those cases would reach a judgment. It was not like we are saying that a verdict could not otherwise be reached in those cases. 80% of those cases it could be reached. Only 5% of the total would result in a hung jury, so it is a process, which serves so little purpose in terms of convenience and has such a heavy price in terms of the appearance of what is going on in Court.
Speaker: In terms of criminal case, what percentage the jury hangs in Oregon?
Richard B. Sobol: 3.1 where the national average is 5.6, so you achieve a slight lessoning in hang juries and those are the very cases, which I maintain that there is substantial doubt.
Speaker: (Inaudible) 2% really thought the –
Richard B. Sobol: You are talking about judgments being reached in 2% additional cases which is a lot of people Your Honor.
Speaker: Unless those who might be convicted on this Court.
Richard B. Sobol: It is 2 and 1/2 percent unless there is a convict in every trial.
Speaker: Less might be.
Richard B. Sobol: Yes. But of course one thing you do not know is whether the process of deliberation might have resulted in a verdict going the other way. Whether some middle ground might have been arranged. We do not have a jury operates that make –
Speaker: Which way the jury hangs.
Richard B. Sobol: We do not know which way it is hang and we do not know the manner in which it would have achieved unanimity. What else might have happened in the jury room in terms of lesser offenses and in terms of dividing counts. We do not know any of that. All we know it is the process of deliberation has been short circuited in the middle and that a verdict is being allowed before the process is finished in most of those 25% of the case.
Harry A. Blackmun: All of the 25% of the cases, how many were divided for acquittal?
Richard B. Sobol: Well, From Kalven and Zeisel which is the only permission I have Mr. Justice Blackmun. They indicated 80% of those divisions are for conviction. 20% of the division is for acquittal.
Harry A. Blackmun: So let us say really you are talking about 80% of 25% now?
Richard B. Sobol: I am talking 80% of 25% yes but my main point is –
Harry A. Blackmun: Of course in New Orleans’ study is pretty scampi is it not?
Richard B. Sobol: It is the best study there is.
Harry A. Blackmun: The only one?
Richard B. Sobol: That is the only one. Now, just lastly I would like to talk about the significance of the holding in this case. 48 States require unanimity in cases covered by the Sixth Amendment under Baldwin. Only 2 do not. Now, in Duncan, the Court said although virtually unanimous adherence, for the reasonable doubts standard in common law jurisdictions may not conclusively established. It is a requirement of due process. Such a requirement does reflect a profound judgment about the way in which the law should be enforced and justice administered. Here, the court is faced with a situation in which 48 States have resolved this question one way. The burdens of a change over here are very slight, they do not require in handling more juries anything else, just simply the different instruction to the jury. And in closing, I would like to make one last point which keeps occurring to me and that is that Oregon did not mean but this -- I am sorry I will get it this way. Oregon did not determine to interpret the Sixth Amendment this way. When Oregon adopted this statute, the constitutional rule out of this Court was that there is no State jury trial requirement and I dare say that no State has affirmatively undertaken to interpret the Sixth Amendment requirement to allow a majority verdict, that Oregon is back into this question by virtue of the Duncan decision.
Speaker: (Inaudible)
Richard B. Sobol: In Oregon?
Speaker: Yes.
Richard B. Sobol: Well, it is very interesting. It has exactly the language of the Sixth Amendment and then it says provided however that, I am quoting it on top of my head. In Circuit Courts ten out of 12 juries may enter a judgment.
Speaker: If that judgment although going to be applied to a jury trial but necessarily--
Richard B. Sobol: Well, it seems to me, its judgment that it included the Sixth Amendment language and then expressly took away from the Sixth Amendment for Oregon and it was entitled to do that under the State of the law. The law now is that the Sixth Amendment applies in Oregon.
Speaker: Do you say that Oregon provides for fair trial?
Richard B. Sobol: No I do not. I would say it is not.
Speaker: Even though it said so?
Richard B. Sobol: It does not say so. It says something and it takes it away and I think the myth –
Speaker: So do you want a jury trial?
Richard B. Sobol: Provided however, it would not be a jury trial because ten or 12 are going to be allowed to convict and I think that is not a jury.
Speaker: I suppose you would not accept it?
Richard B. Sobol: Yes I would not. Thank you very much.
Speaker: This was an amendment, was it of the argument constitution?
Richard B. Sobol: It was an amendment in 1934.
Speaker: 1934?
Richard B. Sobol: 1934, and my point is for what its worth is that at the time that decision was made, it was not made in light of Sixth Amendment requirements because there were not.
Speaker: Right. They provided an ordinance for fair trial?
Richard B. Sobol: Yes. The Oregon Judgment. Thank you very much.
Warren E. Burger: Thank you Mr. Sobol. Tanzer.
Jacob B. Tanzer: Mr. Chief Justice and may it please the Court. That amendment was passed by a vote of the people of Oregon in 1934 and that was in response to a recommendation of the American law institute made in 1931 and it is proposed criminal code at that time and so that is the history as recorded by crime commission, including a young law professor named Wayne Morse who achieved some province and also one who reached rest of activities control board. As a matter of incidental information. As a preliminary observation, I want to point out with also a typical -- back to Kalven and Zeisel that I am not here necessarily defending some dialing of the prosecutors nursery. I am here to defend majority verdict system as a good system rather than to argue for advantage because what it does here it facilitates the end object of trials that is a verdict. One way or the other, there is no particular statistic or advantage for the prosecution and in fact the slight statistical advantage to the defense.
Warren E. Burger: Is it your view that you have to sustain the burden of proving that it is a good system or is your burden merely to prove that the Federal Constitution does not fit any restrictions on the State?
Jacob B. Tanzer: It is my burden Your Honor to show that it is not violative of the constitution and particularly of the Sixth Amendment. I do not think it will hurt me to demonstrate, this is also a good system.
Warren E. Burger: I did not mean to limit you in any way. I just want to be sure about the focus of the case.
Jacob B. Tanzer: Quite right Your Honor and I intend to speak to both because council does seek to broaden it to some interpretation of the phrase jury trial. So I do wish to get to it. Kalven and Zeisel's figures incidentally cannot be interpreted and I am not going to the detail to show that a defendant would enjoin criminal cases across the board is slightly higher than acquittal rate. Where 10:2 verdicts generally allowed in the States.
Speaker: Are you speaking for retrial?
Jacob B. Tanzer: No. I am not speaking of retrial. We do generally retry cases in Oregon but I cannot speak to retrial. Furthermore I have pointed out just since we are talking statistics that we read, that we convict some 85% of the defendants in Oregon County that go to trial, 94% altogether. So when speak about 80-20 break of hung juries where guilt or acquittal. Even there the defendant would enjoy slighter advantage from the County in which I may incorporate. We feel that is a good system 10:2. I am not arguing for 9:3 one way or the other but the ALI as I say agreed with that and their recommendation of 1931. The English agreed with that proposition in 1967 when they switched to such a system and the American Bar Association project on minimum standards agree with that as a suitable formal procedure for the United States in its report of 1968 and even Kalven and Zeisel whose common carry is not always on our side of things. He grudgingly admitted in their law review article in their speech advising the English that justice in Oregon has not broken down the Court but then also nobody has ever claimed that Oregon justice is superior to justice elsewhere. Kalven and Zeisel so state, the constitution does not require that our justice be superior to elsewhere of course. We find that it does sort the guilty from the not guilty and it does it in a fair manner. It does so accurately and it does so efficiently and I think that all three of those qualities are essential. We invalidate the Oregon system of course and this Court must find that in his offensive either to the very wording of the Sixth Amendment or it is offensive in the sense which counsel suggests that the phrase jury trial precludes a majority verdict system and we argue that neither is correct. It is not violative of the Sixth Amendment. I wish to point out that I -- counsel pointed out in there too in my brief and I wish to acknowledge it with my regrets. I start discussing Article 3 Section 2 and the constitutional debates thereon quoting from the (Inaudible) and I transpose the word in my note, civil to criminal in my brief at page 19 which I regret. At the constitutional convention in Oregon about civil cases only. When the Congress met to submit the Sixth Amendment however as counsel acknowledged there, there was specific reference to criminal cases, specific reference to unanimous jury verdicts and James Madison’s original formulation, which I would read. Reads the trial of all crimes ellipse shall be by an impartial jury of the free holders of the vicinage with the requisite of unanimity for conviction of the right of challenge and other custom requisites. That was passed, not formed by the house, sent to the senate. There in the Senate, various of the clauses including the unanimity clause were stricken. The diarist to the Senate was ill that day and so we do not have a record of the debate. It was sent back to the House. There was a motion in the House to restore most of that wording. The motion in the House failed on an even vote. So unanimity was stricken from the Sixth Amendment and this Court in order to decide with the petitioner would essentially have to reinsert the language which the Congress struck. As to whether or not under Williams versus Florida and Duncan versus Louisiana, the phrase jury trial and in and of itself requires unanimity, I think not because it is functionally silent. The function of jury as used in that phrase, and define in Duncan and Williams, is that, it was to serve an interposition, an interpositional safeguard. Interposition of the common sense of the citizens as a shield against an oppressive Government. It was a safeguard inserted between citizen and crime. It stemmed from the distrust of the Courts, which existed at that period. It stemmed also I might add there was considerable distrust from lawyers and also prosecutors but originally the crime was the -- of course, the agent requirement were thought to be oppressive and that was uncertain. The unanimity is not necessary to perform the function of safeguard. Surely, for example, if there were a jury of 24 and we allowed a verdict to 23 to 24. 23 out of 24, that sort of a system would safeguard, the citizen from an oppressive Government. It would interposition citizen's judgment at least equally effectively and a narrow requirement that six citizens sit in judgment of the facts. The function according to those cases and I am sure correctly so is the substitution of citizen judgment for official judgment and a verdict of 10:2 does just that. I might point out that for other high crimes and treason, the constitution allows the fact finder to decide by three quarters and I speak specifically of the impeachment proceeding wherein at that time, 18 to 26 vote was sufficient to find the president or a judge guilty as I recall the phrase. High crimes, and treason and impeachment.
Speaker: Well then Mr. Tanzer, you would make the same argument if the Oregon system were 7:5.
Jacob B. Tanzer: No Your Honor, I would not. There must be a certain adequacy to the safeguard it seems to me and I am not called upon to defend the 7:5. It must be more than a mere of majority, it would seem but I say that as a subjective judgment. 10:2, I would remind you, because a 5:1 vote. The ratio is 5:1. 7:5 is barely a 1:1 ratio. It is only slightly more than that. 9:3 is quite another matter somewhere, there is I think simply a judgmental determination to be made and I think that 10:2 at least in my experience has worked out satisfactorily in Oregon without public clamor to the contrary and it is an agreement with as I indicated. The American Law Institute, the American Bar Association project and the English in 1830, there was a recommendation of a royal commission in England that they switched to a 9:3 or an 8:4 system but it went nowhere. Generally nothing is--
Speaker: Mr. Tanzer, in Oregon, if the jury goes out, they always take a first vote, all of you usually and if it is to overwrite if the first vote is 10:2 that is dammed of it?
Jacob B. Tanzer: That could be.
Speaker: Well it could.
Jacob B. Tanzer: This depends on how the jury chooses to operate Your Honor. There is a tendency among juries’ desire to be unanimous but that is something I cannot prove or anything that I cannot cite or study.
Speaker: If the jury goes out and takes an original vote and the vote is 10:2 what happens to that word deliberation?
Jacob B. Tanzer: They are empowered Your Honor to return their verdict at that time. Similarly --
Speaker: They are empowered to return a verdict without deliberation.
Jacob B. Tanzer: They are empowered equally, to where they voted 12:0 to return without deliberation.
Speaker: Without deliberation, but 10:2, people to take the state has approved in and I assume they cannot even say that.
Jacob B. Tanzer: Well, I am saying it would be within their power not to listen to the two. Not to deliberate, not to discuss it if that were the vote, and I must say –
Speaker: Is it authorized?
Jacob B. Tanzer: It would be authorized, yes indeed, because in that case one side or the other, the state of the defendant has persuaded ten men beyond reasonable doubt.
Speaker: Why have twelve, why not have ten-men jury?
Jacob B. Tanzer: Well, of course that would not be permissible, I am not trying to debate the alternatives Your Honor but to discuss what we have.
Speaker: Well, I know what we have here.
Jacob B. Tanzer: Under Williams, of course six would insufficient. I might add incidentally that we have used six man jurors in our lower courts. Six-man juries is there required to be unanimous.
Speaker: Well, is there any movement to make that majority too?
Jacob B. Tanzer: No, there is not Your Honor.
Speaker: Not yet.
Jacob B. Tanzer: There is not. There is not and I think wisely not because unanimity is more desirable as the number is reduced. Because we are talking about a safeguard function. If the juries were composed of 40 men and obviously unanimity would not be as important as it is, if it is composed of six men because we are talking about a substantial barrier between Government and citizen and six unanimous will perform it. Ten agreed beyond reasonable doubt will perform that function. I wish to say also that in that case, unanimity is often compelled and by that I mean 12 people are seldom unanimous in any view. We tend to be contentious and that is particularly true as we have broadened the representation in the jury and the law has many devices to make for unanimity where truly, there is not. We do not anymore, as they did at common law, freeze or starve the jurors or cart them from a size to a size until they decide. What we do, allow our judges to comment on the evidence and according to Kalven and Ziesel’s review of a 101 cases where the judge did comment on the evidence, only one jury failed to agree with the judge and that failed only by an 11:1 vote. So that is a powerful weapon to compel unanimity or influence unanimity. The Allen charge pushes a jury to unanimity often not; I would not say that, in Oregon at the time of the original argument, our Supreme Court had not ruled on the Allen charge. Since then, our Supreme Court has disallowed the Allen charge in Oregon. We do not allow our judges to comment on the evidence but that is what those devices are for. We do not happen to employ those. There are structural devices within the criminal law, which are designed largely to encourage compromise and if not designed for it, although that is a principle of code revision. If not designed for it that is there effect. Graves of crimes, we have those in Oregon. Jury set penalties or such devices to encourage compromise rather than really the vote of conviction and this Court authorized that last May. Even in a single non-bifurcated proceeding like McGartha versus California and Crampton versus Ohio. We do not have those devices in Oregon. We do have attended to a verdict, which I think reflects much more accurately the feelings of those jurors. The last two that come over and the last one that came over most likely for a speculative recourse. Because of all sorts of pressures and all sort of things. But I think that a 10:2 verdict has certainly the same degree of integrity behind it and has certainly the same strength as a safeguard between citizen and Government, as does to a verdict where there is a judges commentary on the evidence which means evaluation of it and in Allen charge and a compromise regarding penalty, none of which we allow. And I might add, it does it first time around. It has a positive value in the administration of justice and I think that is important today. The ACLU amicus brief refered to the savings and mistrials as being a trifling economy; it is much more than a trifling economy. And actually, there is a picture congestion in the Courts. In Oregon, we believe that justice need not be harsh but it should be swift. Kalven and Zeisel States there are 5.6% mistrials in unanimous States 3.1% is all for mistrials in Oregon and Louisiana. I do not know what the break down would be. A difference of 2.5% but the difference in other words of 81% if we were to switch to the unanimous system, it would increase our mistrial by 81%, we have managed in (Inaudible) county to get trial down to within 60 days of arrest. We have gotten the appellate process down in the last two and a half years, for 18 months to four and a half months and we have done it by examining each article of criminal procedure to try and better the system. We do not need an 81% increase in mistrials and I think that we do more –
Speaker: If you cut it down to a family judge, you would save more time, would you not?
Jacob B. Tanzer: But I do not think that that Your Honor will perform this safeguard function because as the jury was designed for and that is why I am not arguing for a majority. Plaintiff argues-- pardon me. Petitioner argues four arguments. He has a burden of proof beyond reasonable doubt argument. He argues for meaningful deliberation, for a cross section of community and for public competence and I will answer those arguments. The burden of proof does not affect. The Standard of proof beyond reasonable doubt is not affected by a non-unanimous jury system. The burden of proof stays with the government except for all – except for affirmative defenses. The burden of persuasion stays with the government except for all affirmative defenses. Beyond reasonable doubt remains the standard for whomever it is that the law authorizes to find the facts and that is not coordinative numbers. That maybe 12 jurors, 6 jurors while one judge. Or ten out of twelve jurors. The doubt of one juror is not reasonable doubt. Else wise is a hang jury would be a finding of reasonable doubt. That would be upheld as an acquittal and this Court authorize retrials in such situations back in 1902 and to carry his argument, (Inaudible) demonstrate that the beyond reasonable doubt argument is not applicable. We could say by extending his argument that a rule allowing a seven-man verdict for a preponderance of the evidence a nine-man verdict for clear and convincing the evidence and a 12-man verdict for beyond reasonable doubt. It could be with a logical outcome of an argument, which tends to be the standard of proof to the numbers. It does not; those are not relevant considerations, burden of proof or burden of persuasion in examining that majority verdict. Regarding the requirement of meaningful deliberation, there are cases in which deliberation will be meaningful and I suspect that there are cases today in which deliberation is not meaningful. For example, the one where they decide 12-0 one-way or another at the very beginning on the initial vote. There are however less banned constitutional solutions to accomplish that particular goal if the Court deems it desirably. That is I think of the minimum deliberation time as in England. Which, we do not have. Certainly, that seems to me rather an instinct device and probably a very good one. And I might add incidentally that there is a directive of Court as is the practice in England wherein the Trial Courts are directed not to instruct the juries even regarding the possibility of a majority verdict until they have deliberated for two hours and reported back which is an interesting device. The point I wish to make however is, that it is not something, which is constitutional proportional, which must be dealt with by carving something new into the grant of constitution. There is no need for, it can be dealt with simpler remedies if there is an indication somewhere that there is less than meaningful deliberation and you never know. I tried a murder case ones, which moved trying up with a second-degree verdict. 10:2, and found out afterwards that the two holdouts were for first-degree murder. One really never knows even exactly what the verdict means. Regarding the cross section of the community, that is a problem of the panel rather than being specific, not rather than a specific jury has been pointed out. Swain versus Alabama and the allowance of the peremptory strike system demonstrates the difficulties of translating that down to the specific jury, that tries a case but in any rate, in Williams, it says that less than twelve men, six men are sufficient to bring out of such a sampling, a fair sampling into the jury room is sufficient to place a body of citizenry between crown and citizen, which is the purpose of the jury. I do not think that the demand for cross section means that anyone -- it means that all should participate, it does mean that all should participate not necessarily that each should have veto or each should be able to prohibit decision. The goal of trial unlike some of the insertions of defendants brief is Swain, it seems to me always to be verdict and not a mistrial and a demand for mistrials is really demand for veto not for discussion. If minority members are in fact excluded, and I have a chance to answer questions, which were asked to me last March. It is rare that a lawyer can give the answer, after he sits down but anyway, if members are arbitrarily excluded from the deliberations of a case, it seems to me that is not, the likely kind of abuse that you would assume, juries will commit.
Speaker: We must assume a certain good faith in our juries.
Jacob B. Tanzer: If there is such an impropriety, such an abuse, that is something, which we remedy after when it comes to life and such things, do come to life. There is a motion for new trial. There is post conviction relief. And in Oregon, we provide all the Due Process counsel, transcripts, and etcetera. There is a Federal habeas corpus, as a remedy where such a matter occurs, Parker versus Gladden as you may recall out of Oregon and not two years ago, such an example where the bailiff sent to the jury, that wicked fellow, he was surely guilty of words to that affect. We did not eliminate bailiffs as a result of such an abuse. We kept bailiffs but we do provide the after the fact remedy in that case for the habeas corpus. So, regarding public confidence, it is significant that the requirement of unanimity is an historical accident and really nothing more. I will not repeat which has been set out in brief. It is an historical accident, it just occurred and we have it when people have grown accustomed to it and I would expect that lawyers from jurisdiction are accustomed to unanimity, have a hard time adjusting to some other system mentally, their initial response is barely negative although we have grown very comfortable. But non-unanimity on the other hand when we talk of public confidence was specifically voted in by the people of the State of Oregon. When they amended the constitution and so when we speak of public confidence, we must remember that this came from the public. The public did decide and it does not simply lawyers have self appointed withered aims of public opinion. This was a public measure and there is no ground as well I can report of opinions, and it is trying to change here. We are undergoing procedural revision at this very time and there is no movement within that body to change it because it works and I think that is the last point that I wish to reemphasize, it does work, it was accurately fairly expeditiously and it did in these cases.
Warren E. Burger: Thank you Mr. Tanzer, you have just one minute left Mr. Sobol.
Richard B. Sobol: Thank you very much, here are my comments. I would like to make a few very brief points. Firstly, I think perhaps the Court has been stuck as I was during the argument of the inappropriateness of making innumerable constitutional decisions as to whether six out of eight or 10 out of 12 or 9 out of 12, where in Montana 8 out of 12 or odd -- are acceptable under the Sixth Amendment. I think that is not a proper constitutional role for the Court. I think there must be a more objective test to be applied than just juggling all these numbers, particularly in light of Williams where we know at least that the number can range from six to twelve and the combinations are very large and I think the Court ought to take note of the fact that what is getting into. If it starts making innumerable determinations as to which combinations are enough and which are not. Secondly, the exclusion of minority is not an abuse as Mr. Justice Marshall pointed out by his questions, that if there is a 10:2 vote and the minority is not firm, the verdicts will turn. That is not an abusive matter that can be later corrected. That is the system. And to argue, it can later be corrected, it misses the point that that is exactly what is allowed. Thirdly, I would like to point out that the Kalven and Zeisel without going to far into that 80:20 rate cannot be said to be a rate in favor of acquittal. Perhaps that is against those trial that result of an outcome but I think the important point is that when the jury would otherwise hang. The result in some four to five cases of conviction, now that is not a benefit to the defendant, that is the detriment to the defendant. What if the consequences are of that? I think that point should be clear that more -- that four or fifths of those cases, there is going to be a conviction and lastly, I would like to just note that the citation which is not in our brief to the constitutional history which makes very clear that the deletion of the Amendment of the Sixth Amendment having to do with unanimity concerns vicinage and not unanimity. It is in volume 5 of the documentary history of the Constitution of the Untied States. Pages 205, 206, and 210-11 in which Madison’s letters make clear what the debate was about and was not about. And of course, the Ninth Amendment was enacted expressly to secure that simply because a right was not expressly set forth in the bill of rights, it would not be read to have been intended not to be secured. I thank the Court very much.
Warren E. Burger: Thank you Mr. Sobol, Thank you Mr. Tanzer. The case is submitted.