Reaching agreement on when jurors must agree

New Criminal Law Review

Volumn 10, Issue 2, 2007, Pages 153-209

  Westen, Peter ^a   Ow, Eric ^b  

^a UNIVERSITY OF MICHIGAN LAW SCHOOL   (United States)

^b Boalt Hall ^*  (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 34248216185     PISSN: 19334192     EISSN: None     Source Type: Journal    
DOI: 10.1525/nclr.2007.10.2.153     Document Type: Article

References (155)

1. See generally Ward Farnsworth, Signatures of Ideology: The Case of the Supreme Court's Criminal Docket, 104 Mich. L. Rev. 67 (2005).
2. U.S. 624 (1991).
3. U.S. 813 (1999).
4. See Farnsworth, supra note 1, at 74 (referring to Chief Justice Rehnquist and Justices Scalia and Thomas as "hawks" in criminal cases).
5. Id. at 74 (referring to Justice Ginsburg as a "dove" in criminal cases).
6. Id. (referring to Justice Souter as a "dove").
7. See Kate Stith-Cabranes, Criminal Law and the Supreme Court: An Essay on the Jurisprudence of Byron White, 74 Colo. L. Rev. 1523 (2003).
8. See Tim Thomas, Annotation, Requirement of Jury Unanimity As to Mode of Committing Crime under Statute Setting Forth Various Modes by Which Offense May Be Committed, 75 A.L.R. 4th 91 (1990);
9. Cyrus Amir-Mokri, Predicate Offenses and Jury Agreement under the Continuing Criminal Enterprise Statute, 1994 U. Chi. Legal F. 325 (1994);
10. Carol A. Beier. Lurching toward the Light: Alternative Means and Multiple Acts Law in Kansas, 44 Washburn L.J. 275 (2005);
11. Elizabeth Carty, Schad v. Arizona: Jury Unanimity on Trial, 42 Cath. L. Rev. 355 (1993);
12. Kirsten Dunne, Legislative Reform: The Continuing Criminal Enterprise Statute and Jury Verdicts: Differing Conceptions of "Jury Unanimity," 20 J. Legis. 257 (1994);
13. Michael R. Johnson, State v. Johnson and Multiple Factual Theories: A Practitioner's Guide to Interpreting Utah's "Patchwork Verdict" Rules, 1993 Utah L. Rev. 907;
14. James McGuire, Schad v. Arizona: Diminishing the Need for Verdict Specificity, 70 N.C.L. Rev. 936 (1992);
15. Eric S. Miller, Compound-Complex Criminal Statutes and the Constitution: Demanding Unanimity as to Predicate Acts, 104 Yale L.J. 2277 (1995);
16. Brian M. Morris, Something upon Which We Can All Agree: Requiring a Unanimous Jury Verdict in Criminal Cases, 62 Mont. L. Rev. 1 (2001).
17. For the authority of the police to search under such circumstances, compare United States v. MacDonald, 916 F.2d 766 (2d Cir. 1990) (en banc) with United States v. Richard, 994 F.2d 244 (5th Cir. 1993).
18. Schad, 501 U.S. at 627-45.
19. Id. at 645-52.
20. Id. at 652-59.
21. Richardson, 526 U.S. 813.
22. 21 U.S.C. §848(a) (2006).
23. See Richardson, 526 U.S. at 819.
24. Although the CCE statute does not explicitly define "series" the terms have been construed to mean three or more. For the leading authority on this issue, see United States v. Young, 745 F.2d 733, 747 (2d Cir. 1984).
25. See also 521 U.S. at 818.
26. Richardson, 526 U.S. at 815-24.
27. Id. at 825-37.
28. Schad, 501 U.S. at 633.
29. Id. at 632.
30. Id. at 633 n.4.
31. Id. at 650.
32. Id. at 657.
33. See Richardson, 526 U.S. at 820.
34. Schad, 501 U.S. at 651 (Scalia, J., concurring).
35. See also id. at 650 (Scalia, J., concurring) ("When a woman's charred body has been found in a burned house, and there is ample evidence that the defendant set out to kill her, it would be absurd to set him free because six jurors believe he strangled her to death (and caused the fire accidentally in his hasty escape), while six others believe he left her unconscious and set the fire to kill her.").
36. Id. at 652.
37. 526 U.S. at 820.
38. Id. at 836.
39. Schad, 501 U.S. at 631-32.
40. Id. at 650.
41. Id. at 656.
42. Richardson, 526 U.S. at 817.
43. Id. at 828.
44. See Schad, 501 U.S. at 653, 656 (White, J., dissenting).
45. Cf. id. at 640 (plurality opinion).
46. See Schad, 501 U.S. at 635-36;
47. see also Richardson, 526 U.S. at 818 (majority).
48. See Schad, 501 U.S. at 639-40 ("Where a State's particular way of defining a crime has a long history, or is in widespread use, it is unlikely that a defendant will be able to demonstrate that the State has ... defined as a single crime multiple offenses that are inherently separate.").
49. See id. at 640 ("Conversely, a freakish definition of the elements of a crime that finds no analogue in history ... or in the criminal law of other jurisdictions will lighten the defendant's burden.").
50. Id. at 643.
51. See id.;
52. see also id. at 651 (Scalia, J., concurring) ("morally equivalent").
53. See id. at 640-42.
54. See id. at 642-44.
55. See Richardson, 526 U.S. at 820. The three members of the Richardson majority who supported the original judgment in Schad were Chief Justice Rehnquist, Justice Scalia, and Justice Thomas. The two members of the Richardson majority who were new to the Court were Justice Breyer and Justice Ginsburg. The sixth member of the Richardson majority was Justice Stevens, who dissented in Schad.
56. See Cal. Pen. Code §646.9 (2005).
57. For a description of stalking statutes, see Richard Lingg, Stopping Stalkers: A Critical Examination of Anti-Stalking Statutes, 67 St. John's L. Rev. 347 (1983).
58. See 18 U.S.C. § §1961-1968 (2005).
59. See Gerald Lynch, RICO: The Crime of Being a Criminal: Parts 3 & 4, 87 Colum. L. Rev. 920 (1987).
60. Cf. Richardson, 526 U.S. at 837 (Kennedy, J., dissenting).
61. See, e.g., People v. Aaron, 299 N.W.2d 304 (Mich. 1980).
62. See, e.g., N.Y. Penal Law §125.25 (2005).
63. See Tison v. Arizona, 481 U.S. 137 (1987).
64. Schad, 501 U.S. at 643-44.
65. See Schad, 501 U.S. at 645-51.
66. See id. at 653.
67. Id.
68. See Schad, 501 U.S. at 652.
69. But see id. at 653 n.3 where, by taking issue with the plurality,
70. id. at 636 n.6, the dissenters imply that jurors would not have to contour on whether a homecide was "willful" as opposed to "deliberate," or vice versa, under a statute that makes it an offense to either "willfully" or "deliberately" kill a human being.
71. See the comparison of "Jack's Destruction" and "Jack 2," supra.
72. Richardson, 526 U.S. at 819 (quoting the Schad plurality).
73. See Van Orden v. Perry, 546 U.S. 677 (2005);
74. McCreary County v. ACLU, 545 U.S. 844 (2005).
75. 397 U.S. 358 (1970) (a juvenile delinquency case tried to the bench).
76. See Jackson v. Virginia, 443 U.S. 307 (1979).
77. See id.
78. See Johnson v. Louisiana, 406 U.S. 356, 362 (1972) (the due process clauses of the Fifth and Fourteenth Amendments require that individual jurors, as triers of fact, be persuaded of a defendant's guilt beyond a reasonable doubt);
79. see also Apodaca v. Oregon, 406 U.S. 404, 411-12 (1972) (plurality opinion) (the constitutional requirement that individual jurors as triers of fact find defendants guilty beyond a reasonable doubt originates in the due process clauses of the Fifth and Fourteenth Amendments, not in the Sixth Amendment right to trial by jury).
80. The Court has held that the Sixth Amendment requires that federal juries consist of twelve persons and that their verdicts be unanimous. See Andres v. United States, 333 U.S. 740, 748 (1948);
81. Johnson v. Louisiana, 406 U.S. 356, 366-80 (1971) (Powell, J., concurring).
82. In contrast, the Court has held that the Fourteenth Amendment is satisfied if state-court juries consist of as few as six persons, see Williams v. Florida, 399 U.S. 78 (1970), and if the verdicts of state-court juries of twelve persons are supported by a supermajority of nine of twelve jurors.
83. See Apodaca v. Oregon, 406 U.S. 404 (1971). The Court has not yet determined whether or when the Fourteenth Amendment allows the states to employ less than unanimous verdicts by juries of fewer than twelve persons.
84. See Johnson v. Louisiana, 406 U.S. 356, 362 (1972) ("Of course, the State's proof could perhaps be regarded as more certain if it had convinced all twelve jurors instead of only nine; it would have been even more compelling if it had been required to convince and had, in fact, convinced twenty-four or thirty-six jurors. But the fact remains that nine jurors - a substantial majority of the jury - were convinced by the evidence.").
85. For the intriguing argument that, although the Constitution requires unanimous or supermajority verdicts to convict, federal and state law ought to be changed to require only majority verdicts to acquit, see Ethan Leib, Supermajoritarianism and the American Criminal Jury, 33 Hastings Const. L.Q. 141 (2006).
86. The Supreme Court ruled in Johnson v. Louisiana that, with respect to the way juror judgments are aggregated, the Fourteenth Amendment requires a lesser degree of certainty of a defendant's guilt than the Sixth Amendment requires. Yet significantly, the Johnson Court insisted that a verdict of nine of twelve jurors, each of whom finds a defendant guilty beyond a reasonable doubt, is an aggregate verdict that itelf leaves no doubt that the defendant is guilty. See Johnson, 406 U.S. at 362 (1972) ("Of course, the State's proof could perhaps be regarded as more certain if it had convinced all twelve jurors instead of only nine.... But the fact remains that nine jurors - a substantial majority of the jury - were convinced by the evidence. In our view disagreement of three jurors does not alone establish reasonable doubt, particularly when such a heavy majority of the jury, after having considered the dissenters' views, remains convinced of guilt.").
87. See Lewis Kornhauser & Lawrence Sager, The Many As One: Integrity and Group Choice in Paradoxical Cases, 32 Phil. & Pub. Aff. 249, 258-59 (2004) (analyzing the "voting protocols" that are required to ensure that group decisions possess "integrity" when the integrity of individual judgments are a function of their accurately assessing matters of fact). I am indebted to Larry Alexander for bringing this literature to my attention.
88. Johnson, 406 U.S. at 361.
89. 367 F.3d 594 (6th Cir. 2004).
90. The U.S. Supreme Court initially granted certiorari to review the Sixth Circuit's decision regarding the prosecutors' inconsistent position. But following oral argument, the Court ruled the issue to be premature and refused to adjudicate it. See Bradshaw v. Stumpf, 545 U.S. 175 (2005).
91. Justices Scalia and Thomas wrote separately, arguing that they would have rejected Stumpf's argument regarding inconsistency, in part on the ground that the inconsistent prosecutorial positions did not result in inconsistent judgments. See id. at 190 (Scalia & Thomas, JJ., concurring).
92. See Smith v Groose, 205 F.3d 1045 (8th Cir. 2000);
93. Thompson v. Calderon, 120 F.3d 1045 (9th Cir. 1997),
94. rev'd on other grounds, 523 U.S. 538 (1998).
95. See generally Anne Poulin, Prosecutorial Inconsistency, Estoppel, and Due Process: Making the Prosecution Get Its Story Straight, 89 Cal. L. Rev. 1423, 1460-77 (2001).
96. The U.S. Supreme Court has sustained multi-count verdicts that combine convictions with acquittals in ways that are factually inconsistent with one another, on the ground that the acquittals can be explained as exercises of leniency on the jury's part. See United States v. Powell, 469 U.S. 67 (1984). But that reasoning does not apply to inconsistent verdicts of guilty that, being convictions, cannot in any way be explained as exercises in leniency.
97. The word "some" in the instruction is designed to encompass cases with the following features: (1) some jurors believe that the defendant committed an offense by means A and that, if he did not commit the offense by means A, he did not commit the offense at all; (2) other jurors believe that the defendant committed the offense by a means other than A but that if he did not, he must have committed it by means A.
98. This portion of the instruction is designed to encompass cases in which more than two means are alleged or in which some jurors believe that if the defendant did not commit the offense by a particular means, he did not commit it at all. It thus requires that all twelve jurors concur on a particular means the defendant either used or must have used if he did not use any of the other alleged means.
99. This can be true in sexual-abuse cases where a parent is alleged to have had sexual access to a child over a period of many years, thus making it difficult for jurors to agree on precisely which acts occurred and when, even though each may believe beyond a reasonable doubt that if the defendant did not commit one alleged act, he must have committed another. See People v. Jones, 792 P.2d 643 (Cal. 1990) (disavowing lower court cases that required that jurors concur on the particular acts that defendants in such cases were alleged to have performed).
100. See, e.g., United States v. Canino, 949 F.2d 928, 948 (7th Cir. 1991)
101. cert. denied 504 U.S. 910 (1992)
102. United States v. Beros, 833 F.2d 455 (3d Cir. 1987)
103. Carol Beier, Lurching toward the Light: Alternative Means and Multiple Acts Law in Kansas, 44 Washburn L.J. 275, 276-77 (2005);
104. Brian M. Morris, Something upon Which We Can All Agree: Requiring a Unanimous Jury Verdict in Criminal Cases, 62 Mont. L. Rev. 1, 2, 57 (2001).
105. See Schad, 501 U.S. at 578 (White, J., dissenting);
106. Amir-Mokri, supra note 8, at 341;
107. Elizabeth Carty, Schad v. Arizona: Jury Unanimity on Trial, 42 Cath. L. Rev. 355, 384 (1993);
108. Scott Howe, Jury Fact-Finding in Criminal Cases: Constitutional Limits on Factual Disagreements Among Convicting Jurors, 58 Mo. L. Rev. 1, 81 (1993).
109. Schad, 501 U.S. at 630-31.
110. Accord 501 U.S. at 649 (Scalia, J., concurring) ("Schad and the dissenting Justices would in effect have us abolish the crime of first-degree murder and declare that the Due Process Clause of the Fourteenth Amendment requires the subdivision of that crime into (at least) premeditated murder and felony murder. The plurality rejects that course - correctly, but not in my view for the correct reason.").
111. Richardson, 526 U.S. at 820.
112. 526 U.S. at 822.
113. Schad, 501 U.S. at 634 n.5.
114. Id. at 631.
115. See also Richardson, 526 U.S. at 820.
116. See Richardson, 526 U.S. at 820.
117. See, e.g., Lambert v. California, 355 U.S. 225 (1957).
118. See, e.g., City of Chicago v. Morales, 527 U.S. 41 (1999).
119. See, e.g., McMillan v. Pennsylvania, 477 U.S. 79, 86 (1986) (the Constitution limits a state's authority to define the elements of offenses in such a way as to shift burdens of nonpersuasion to defendants).
120. Accord Patterson v. New York, 432 U.S. 197, 210 (1977).
121. See, e.g., Appendi v. New Jersey, 530 U.S. 466 (2000).
122. See Schad, 501 U.S. at 578-81 (White, J., dissenting).
123. The Schad plurality, too, was right to deny that the issue in Schad was one of unanimity, see id. at 564-65, for the issue was what each juror must believe beyond a reasonable doubt: Each juror must believe beyond a reasonable doubt that the defendant committed the offense by a particular means of the various alleged means (say, means A as among means A, B, or C), unless each believes beyond a reasonable doubt that if the defendant did not commit the offense by means A, he must have committed it by one of the other means. However, the Schad plurality was wrong to argue that the issue was the scope of state power to define the elements of offenses.
124. See supra note 62.
125. See supra note 62.
126. One of us posted this statement to a Listserv for criminal law professors, asking if anyone doubted that it was true. Those who responded all thought it was, indeed, true.
127. J.C. Smith, Satisfying the Jury, [1988] Crim. L.R. 335.
128. Smith refers to Regina v. More, (1987) 86 Cr. App. R. 234 (Court of Appeal), 249 (House of Lords);
129. Regina v. Phillips, (1987) 86 Cr. App. R. 18;
130. Regina v. Brown, (1983) 79 Cr. App. R. 115;
131. A-G's Reference (No. 4 of 1980), (1981) 73 Cr. App. R. 80, C.A.;
132. and Regina v. Agbim, [1979] Crim. L.R. 171.
133. See Smith, supra note 89, at 344 ("It is submitted that the principle stated in Brown [that jurors must agree on which means a defendant used] is right and of general application.... It does not apply, however, when the prosecution allege more than one factual basis for the crime charged and it is not possible to say, 'If it was not one, then it must have been the other.'").
134. Id. at 342 ("The problem of Brown and Agbim did not arise in Stapylton v. O'Callaghan because i Stapylton] was a decision of a magistrate sitting alone.").
135. Id. at 342.
136. Id. at 344.
137. Id.
138. See also J.C. Smith, Case and Comment, [1990] Crim. L.R. 880, 880-82, where Smith approves of a judgment in which the Canadian Supreme Court upheld a verdict with respect to which jurors had been instructed neither that they had to agree unanimously on which means the defendant used nor regarding "If not A, then B."
139. Id. at 343.
140. Id. at 344.
141. [2003] EWCA Crim. 1501, (Transcript: Smith Bernal).
142. See, e.g., Regina v Carr [2000] 2 Cr. App. Rep. 149.
143. See, e.g., Regina v. Morton, [2003] EWCA Crim. 1501;
144. Regina v. Boreman, [2000] 1 All ER 307;
145. Regina v. Jones, The Times 17 February 1999, (Transcript: Smith Bernal);
146. Regina v. Giannetto, [1997] 1 Cr. App. R. 1.
147. For comparable Commonwealth cases, see Thatcher v. The Queen, 39 D.L.R. (4th) 275 (Supreme Court of Canada);
148. Regina v. Mead, [2002] 1 N.Z.L.R. 594 (New Zealand Court of Appeal).
149. Richard Taylor, Jury Unanimity in Homicide, [2001] Crim. L.R. 283.
150. Id. at 294.
151. Id. at 284-88.
152. For another commentator who, like Smith and Taylor, believes that it is not necessary to instruct jurors either on unanimity or regarding "If not A, then B," see Paul Robertshaw, The Conjunctive or Disjunctive Jury, 65 J.C.L. 231 (2001).
153. Id. at 299.
154. Id. at 292.
155. Id. at 290-94.