BILL ANALYSIS
ACA 18
Date of Hearing: May 9, 1995
Counsel: David R. Shaw
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Paula L. Boland, Chair
ACA 18 (Rainey) - As Introduced: February 23, 1995
ISSUE: SHOULD THE CALIFORNIA CONSTITUTION BE AMENDED TO ALLOW FOR
A FIVE-SIXTHS' JURY VERDICT IN A CRIMINAL CASE FOR A MISDEMEANOR
OR FELONY, EXCEPT IN A CASE IN WHICH THE DEATH PENALTY IS SOUGHT?
DIGEST
Constitutional Amendment. 2/3 vote required.
Under current law:
1) Criminal defendants in California have a statutory right (Penal
Code section 689) and a state constitutional right (Article I,
Section 16) to a jury trial for both misdemeanor and felony
offenses, unless waived by both parties.
2) The California Supreme Court has stated on numerous occasions
that the right to a trial by jury described in Article I,
Section 16 of the California Constitution includes the right to
a unanimous verdict. ( People v. Wheeler (1978) 22 Cal.3d 258,
265.)
3) In a California civil cause of action, the California
Constitution allows for three-forths of a jury to render a
verdict. (Article I, Section 16)
4) In a California criminal case, in which a felony is charged,
the California Constitution requires that the jury consist of
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12 persons. In criminal actions in which a misdemeanor is
charged, the jury shall consist of 12 or a lesser number agreed
on by the parties. (Article I, Section 16).
5) A unanimous jury verdict is not required in a state prosecution
by the United States Constitution. ( Johnson v. Louisiana (1972)
406 U.S. 356 and Apodaca v. Oregon (1972) 406 US 404.)
This bill:
1) Provides that in a criminal action in which either a felony or
a misdemeanor is charged, five-sixths of the jury may render a
verdict, but
if the death penalty is sought, only a unanimous jury may render
the verdict.
2) Provides that a unanimous jury verdict is required in a
misdemeanor case where the parties agreed to jury of nine or
fewer members.
COMMENTS
1) Purpose. According to the author:
Five percent to fifteen percent of jury trials result in
mistrials due to hung juries in criminal cases - most often
because one or two jurors consciously elect to disregard
the law or evidence. This necessitates costly,
time-consuming retrial, or results in compromise
dispositions that produce lower levels of punishment than
the conduct warrants. Insistence on unanimity is unwise
and unnecessary. Oregon, Louisiana, and even England, our
historical benchmark for the unanimity requirement in
criminal cases, allow for non-unanimous jury verdicts.
2) Unanimous Verdicts Are Not Required in State Cases by the
United States Constitution. The Supreme Court of the United
States clearly established that non-unanimous verdicts in state
criminal prosecutions are constitutional in the cases of
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Johnson v. Louisiana (1972) 406 U.S. 356 and Apodaca v. Oregon
(1972) 406 U.S. 404.
The Johnson case, the first of these two cases decided on May
22, 1972 that dealt with non-unanimous verdicts, approved a
nine-to-three guilty verdict in state non-capital cases. The
court held that a verdict based upon the concurrence of nine
jurors out of 12 satisfied the constitutional requirement that
guilt be proven beyond a reasonable doubt, and therefore did
not violate the due process rights of the defendant. The court
went on to state that the Louisiana statute which required
unanimity of 12 jurors in capital cases and a unanimous vote by
a five-person jury in the least serious crimes but only a
nine-to-three vote of a 12-person jury for other crimes did not
violate the equal protection clause, since the statutory scheme
served a rational purpose in facilitating the administration of
justice. The court found the statute intended to vary the
difficulty of proving guilt with the gravity of the offense and
the severity of the punishment.
Apodaca involved the cases of three defendants who had been
separately tried and convicted of criminal offenses in the state
of Oregon, which allowed for a ten-to-two guilty verdict. Two of
the criminals were convicted by eleven-to-one verdicts and one was
convicted by a ten-to-two verdict. In an opinion by Justice
White, the court held that a conviction by less than a unanimous
jury does not violate the Sixth Amendment right to trial by jury
in criminal cases which is made applicable to the states by the
Fourteenth Amendment. The plurality reasoned that a jury that is
representative of a cross-section of the community and that can
deliberate freely, can fulfill its purpose of interposing the
common sense judgment of a group of laymen between the defendant
and the government, even though it is not required to reach a
unanimous verdict.
3) Historical Precedent. The most frequently cited argument for
the continuation of the unanimity requirement in jury verdicts
is that England, which provided the roots of American
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Jurisprudence, had a similar rule. In discussing the dangers
of blindly applying such a historical argument to the unanimous
verdict situation, Justice Denecke of the Supreme Court of
Oregon, upholding the constitutionality of Oregon's
non-unanimous ten-to-two jury verdicts, stated in pertinent
part in State v. Gann (1969) 463 Pacific Reporter 2d, 570, 575,
, the following:
If the historical approach is to prevail and a decision
rendered by a judge on the assizes in the reign of Edward
III determines the fundamental rights of Americans in
1969, other English and colonial practices may rear up
through the cobwebs and dust and claim similar
recognition.
[For example] In England, in the colonies, and in many of
the states, a jury was to be composed only of white male
property owners.
If the historical focus approach is to prevail in this issue,
it is instructive to note that Modern England has done away
with the same rule that is oft cited for precedent. During the
last 23 years, Johnson v. Louisiana and Apodaca v. Oregon have
been repeatedly cited with approval, and appear to be in no
danger of ever being overruled. The proposed amendment to the
California Constitution is clearly lawful under the United
States Constitution and a sensible approach to dealing with the
unique problems California's criminal justice system faces in
1995. The Louisiana and Oregon experiences offer empirical
evidence that the proposed legally acceptable solution will
also prove to be both a workable and successful one.
4) Potential Effect. Will stop the effect of a one or two person
veto of the jury process, which is often an expression of a
dislike or bias against the criminal justice system as opposed
to a decision on the law or evidence in a given case. Reduces
court costs and court congestion due to retrials and speeds up
the trial process. Does not alter the statndard of proof in a
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criminal case nor will it subject defendants to a greater
possibility of an incorrect verdict.
5) Other Legislation. ACA 28 (Richter) changes the size of civil
juries to six persons; and changes the size of criminal juries
to six persons, except when the United States Constitution
requires a greater number. ACA 28 is also scheduled to be
heard in committee today.
SOURCE: The California District Attorneys Association
SUPPORT: Jan Scully, Sacramento County District Attorney
The Association of Los Angeles Deputy Sheriffs, Inc.
California State Sheriffs' Association
The Adam Walsh Center-California
Doris Tate Crime Victims Bureau
3 Concerned Citizens
California Peace Officers' Association/California
Police Chiefs' Association
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OPPOSITION: American Civil Liberties Union
California Attorneys for Criminal Justice
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