Does your jury have to be unanimous? It sounds like an simple question if you know what kind of case it is, in what court. But it isn't simple. A University of Michigan scholar and the New Jersey Supreme Court are among the latest to tackle what unanimity really means.
Is it A, B, or C?
The trick is, unanimous about what? What if jurors agree, for example, that a crime was committed, but not on how it was done? Michigan's Peter Westen and Boalt Hall law student Eric Ow lay out one version of the problem in logic terms in their new paper, "Reaching Agreement On When Jurors Must Agree," in the spring 2007 issue of the New Criminal Law Review and on SSRN here:
[I]t often arises under statutes that make it an offense to commit one or another of various acts, say, acts A, B, and/or C, thereby leading to evidence at trial that a defendant committed one act or another or even all of them. Depending upon how jurors assess the evidence, it can happen that one-third of the jurors find that the defendant committed act A and not either B or C, that one-third finds that he committed act B and not either A or C, and that one-third finds that he committed act C and not either A or B. The constitutional question is whether the Fifth, Sixth and/or Fourteenth Amendments permit a defendant to be found guilty when, although every juror agrees that he used one of the various means, and although every juror may have a view as to which means he used, a majority of jurors do not agree upon which means it was.
The Supreme Court has struggled (in Schad v. Arizona and Richardson v. United States) to articulate a rule for unanimity in these situations, Westen and Ow explain. In fact, they argue, the problem is easier than the Court makes it look. If you shift your attention from broad rules to the facts of the case, they contend -- in constitutional terms, from the right to trial by jury to the reasonable doubt standard -- the problem sorts itself out:
[T]he issue of juror concurrence is about the integrity of juror judgments in the aggregate. The issue arises whenever juror judgments of guilt in the aggregate leave a reasonable doubt as to whether a defendant did in fact do what a statute prohibits. Aggregate juror judgments of guilt leave a reasonable doubt as to whether a defendant did in fact do what a statute prohibits whenever:
The paper is elegantly written and full of fact scenarios with names like "Rare Map" and "John Hancock's Watch" that make the logic much easier to follow and make the whole thing read like a game of "Clue."
Unanimity in reverse: how many jurors must agree on mitigating factors?
Yesterday in a case called State v. Jimenez, the New Jersey Supreme Court tackled the flip side of this problem: not how the jurors must agree to convict a defendant, but how they must agree not to sentence him to death.
After the U.S. Supreme Court ruled in 2001 that states could not execute the mentally retarded, state courts had to figure out how to change their rules to make it so. In an earlier appeal of Mr. Jimenez's case, New Jersey held that mental retardation was something the defendant had to prove, not something the prosecution had to disprove.
But prove to how many jurors' satisfaction? The earlier case didn't say, so the case went up again. The answer, said the court yesterday, flows from the U.S. Supreme Court's Mills v. Maryland holding that jurors don't have to agree on mitigating factors in death cases. (If they did, you could end up with jurors who all agreed the defendant should not die, but he would die anyway because they disagreed on why he shouldn't.) Mental retardation is a "conclusive mitigating factor," the New Jersey court said, meaning it's enough by itself to bar execution. So if even one juror is satisfied the defendant is mentally retarded, that's enough to save his life.
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Organizational note: I'm starting a "death penalty" category for past and future posts on that topic. I hope it's helpful.
(Photo by Kirsty Andrews at http://www.flickr.com/photos/sleep_guitarist/292992375/; license details there)
