Attorney General James Argues Verdicts Must Be Unanimous In State Felony Trials

New York Leads Coalition of Nine AGs in Amicus Brief to U.S. Supreme Court

NEW YORK – New York State Attorney General Letitia James today led a coalition of nine Attorneys General in an amicus brief urging the Supreme Court to recognize that the U.S. constitution requires unanimous verdicts by juries for convictions in state felony trials.

“We have fought hard to guarantee that every American has the right to serve as a juror, and that every jury is drawn from a fair cross-section of our local communities,” said Attorney General Letitia James. “Setting a nationwide standard that requires verdicts to be unanimous will ensure that juries actually consider the diverse views of all their members, rather than ignoring minority viewpoints that may reflect important experiences and varying perspectives.”

In 1972, the Supreme Court held in Apodaca v. Oregon that the U.S. Constitution requires unanimous jury verdicts only in federal felony trials, but not in state felony trials. Despite that ruling, nearly every other state has chosen to retain or enact a unanimity requirement, reflecting the states’ long-held view that such a requirement promotes a fair and impartial criminal justice system.

Although Oregon remains the only state today that does not require a unanimous jury when rendering a felony verdict, other states could choose to do the same in the future unless the Supreme Court concludes that the U.S. Constitution requires unanimous jury verdicts in all felony cases. Louisiana was the most recent state to implement unanimous jury verdicts, for future cases, when voters supported a measure requiring a change in law in November 2018. While Louisiana changed its rule prospectively, and Oregon is considering doing the same, there are still many individuals, in both states, who were not convicted by unanimous juries; the case before the Supreme Court was brought there by one such defendant from Louisiana.

In the brief, the nine Attorneys General argue, “Juries subject to a unanimity requirement deliberate longer, evaluate evidence more thoroughly, and grapple with the viewpoints of every member of the jury. This improved deliberative process contributes to more fair and reliable verdicts, which in turn reinforce public confidence in the legitimacy of the criminal justice system. The unanimity requirement is therefore a critical component of the States’ constitutional obligation to administer fair and impartial criminal jury trials.”

The Attorneys General further argue that the Supreme Court can revisit the 1972 Apodaca case without abandoning its strong commitment to precedent due to two unique features in the original case. First, because of an unusual alignment of votes, the controlling opinion in Apodaca represented the views of only a single justice; and second, in recent decisions, the Supreme Court has already rejected the basic premise of that justice’s reasoning. Thus, the Court can revisit Apodaca without calling into question its adherence to past precedents that lack these unique features.

Oregon held a public vote in 1933 to amend the state’s constitution and allow 10-2 jury convictions in felony cases. In Louisiana, a bill requiring only nine jurors to convict a defendant of a felony became law in 1880. In 1898, that law became part of the state’s constitution, and, in 1973, the state’s constitution was changed again so that 10 jurors were required to convict a defendant of a felony. Many argue that the two states enacted these changes long ago for anti-Semitic, anti-immigrant, and racist reasons. Louisiana voters changed their law late last year. 

Joining Attorney General James in filing the amicus brief were the Attorneys General of California, Illinois, Michigan, Minnesota, Nevada, Vermont, Virginia, and the District of Columbia.

The brief was prepared by Solicitor General Barbara Underwood, Deputy Solicitor General Steven Wu, and Assistant Solicitor General Ester Murdukhayeva.