Non-Unanimous Criminal Juries

Oregon is one of only two states that does not require juries to reach unanimous verdicts in criminal cases. Like Louisiana, it allows convictions by a vote of 10 to 2.

In a pair of decisions in 1972, the Supreme Court said that was all right, that the Constitution does not require states to insist on unanimity. . . .

Joshua Marquis, the district attorney in Clatsop County, Ore., said requiring agreement among just 10 jurors was efficient. “Pretty much the only difference is that we have fewer hung juries,” he said. . . .

According to the Oregon Criminal Defense Lawyers Association, most felony convictions in the state are the products of nonunanimous juries. Oddly, misdemeanor convictions still require a unanimous vote, though from a six-member jury. . . . Oregon does require a unanimous vote in first-degree murder cases, and Louisiana requires it in capital cases.

From here.

Federal felony juries, and all felony jury trials at the time the 6th and 14th Amendments were adopted, have to be and historically had to be unanimous decisions of twelve jurors. The U.S. Supreme Court has been asked to revisit its 1972 precedents in a pending Oregon case.

While most U.S. states have a right to a jury trial in both civil and criminal cases, the right is exercised much less often in civil cases than in criminal cases. The difference is particularly striking in low stakes cases. Even the most petty criminal offenses, such as traffic misdemeanors, are routinely tried before juries (usually of less than twelve people). In contrast, civil lawsuits brought in courts of limited jurisdiction (under $15,000 in Colorado) are almost never reach jury trials despite the existence of a legal right to a jury trial.

There is no federal constitutional right to a jury trial in state court, although most states, in practice, follow federal 7th amendment jurisprudence which allows jury trials in cases that would have been heard in the "law" rather than the "equity" part of the court system prior to their merger in most states (usually, in cases where money damages rather than injunctive relief is the remedy sought).

It would be very interesting to see any empirical evidence that a non-unanimous jury of ten increases the conviction rate in either Oregon or Louisiana. Prosecutors and defense attorneys both act as if there is a significiant difference, but the reality isn't clear.