BILL ANALYSIS
SENATE COMMITTEE ON CRIMINAL PROCEDURE
Senator Milton Marks, Chair S
1995-96 Regular Session C
A
2
SCA 24 (Calderon) 4
As Introduced
Hearing date: June 27, 1995
Constitutional Amendment
MLK:js
Criminal trials: jury verdicts
HISTORY
Source: Author
Prior Legislation: ACA 18 (Rainey) 1995 (failed in Assembly
Public Safety); SCA 10
(Presley) 1983 (failed in Senate Judiciary
Committee)
Support: Chief of Police, City of Escondido; Doris Tate
Crime Victims Bureau; California
Correctional Peace Officers Association; San Diego
County District Attorney;
Sonoma County District Attorney; City of Barstow,
Chief of Police; San
Bernardino County Sheriff; City of West Sacramento;
City of Claremont, Chief of
Police; City of Waterford; Santa Ana Police Officers
Association; Police
Department, Town of Paradise; California Correctional
Peace Officers Association
Opposition: Los Angeles County Public Defender; American
Civil Liberties Union;
California Attorneys for Criminal Justice
Neutral unless amended: California District Attorneys
Association; California State
Sheriffso Association; California Peace
(More)
SCA 24 (Calderon)
Page b
Officerso Association; Police Chiefso
Association
KEY ISSUE
should the california constitution be changed to allow 11-1 jury verdicts in MOST
criminal actions?
(More)
SCA 24 (Calderon)
Page c
PURPOSE
The California Constitution provides that a criminal jury in
a felony case shall be made up of 12 persons. If the parties
agree, a jury in a misdemeanor case may be less than 12.
(Code of Civil Procedure section 220.)
The California Constitution requires jury verdicts in
criminal actions to be unanimous.
This bill amends the Constitution to allow eleven-twelfths of
the jury to render a verdict in a criminal action except in
an action where the defendant may be sentenced to the death
penalty or life without parole.
The purpose of this bill is to allow less than unanimous
juries in most criminal actions.
COMMENTS
1. Authoros Statement.
The author states:
This bill seeks to cut the added cost of retrials
by decreasing the number of hung juries. It also
seeks to increase the rate of both convictions
and acquittals by decreasing the rate of hung
juries.
2. Background.
oThe unanimous verdict has been a feature of jury trial since
1367, when an English Court refused to accept an 11-1 vote
for conviction.o<1> The unanimous verdict tradition was
brought to the colonies and o[f]or nearly 400 years Americans
have regarded the common law trial by jury as one of the
bulwarks of their liberty, and for nearly 400 years, there
was no essential disagreement that trial by jury meant a body
-------------------------------
<1> Nancy McCarthy, oUnanimous jury verdicts may face a
thumbs down.o, California Bar Journal, May 1995, p. 1.
(More)
SCA 24 (Calderon)
Page d
of 12 deciding unanimously.o<2> During the 17th century some
of the colonies oflirted with majority verdicts, but in the
next century, unanimity once again became the rule.o<3>
The California Constitution has been interpreted to require a
unanimous verdict in all criminal actions. ( People v.
Feaglesy (1975) 14 Cal. 3d 338, 350 fn. 10; People v. Wheeler
(1978) 22 Cal. 3d 258, 265.)
Two states, Oregon and Louisiana, went to non-unanimous jury
verdicts in the early part of this century. Oregon permits
verdicts of 10/12 and Louisiana permits 9/12 verdicts. oIn
1972, the U.S. Supreme Court upheld non-unanimous jury
verdicts in criminal trialso in Johnson v. Louisiana (1972)
406 U.S. 356 and Apocada v. Oregon (1972) 406 U.S. 404.<4>
oAmong the Justices upholding non-unanimous verdicts, Justice
Blackmun indicated that a mere majority would have difficulty
being found constitutional and that at least 75 percent of
the jurors were necessary for a verdict in a criminal case.
Justice Powell indicated unanimous verdicts are necessary in
federal criminal trials but that the Fourteenth Amendment
does not compel the states to adopt the requirement.o<5> The
Supreme Court did not consider however, whether the results
would differ if unanimity were not required in a jury of less
than 12 persons.<6>
3. Cost.
a. Retrial.
One of the stated purposes behind this bill is to cut
court costs by cutting out retrial of cases that
return a 11/12 verdict. In support of this argument
---------------------------
<2> Peter W. Sperlich o...And then there were six: the
decline of the American jury,o Judicature Volume 63 Number 6
December- January, 1980, p. 263.
<3> Van Dyke, Jury Selection Procedures, oTwo Steps Backo
(Cambridge, Mass Balinger 1977) p. 204.
<4> Jury work: Systematic Techniques, (Clark-Boardman 1983)
p. 12-9.
<5> Id.
<6> Id.
(More)
SCA 24 (Calderon)
Page e
the author cites a CDAA document which was generated
in support of ACA 18 which gives numerous examples of
where one or two juries hung 10-2 or 11-1 prior to the
defendant being convicted.
The author also collected from a number of District
Attorneyos Offices information on hung juries in their
jurisdiction. According to the Los Angeles County
District Attorney, in 1984 they tried 2803 felony jury
trials (including homicides). Of these 2803, 390
hung up (13.9%) (this includes all hung juries, not
just 11/12). Of the 390 juries that hung only 53 were
retried and of that 53, 38 (71.7%) resulted in a
guilty verdict. (Some cases were scheduled for
retrial in 1995 and thus were not included in that
data.)
The Los Angeles Public Defenderos Office has taken a
survey of hung juries in both felony and misdemeanor
trials from July 1, 1994 to June 7, 1995 wherein the
L.A. Public Defender was attorney of record.
Fifty-five percent of the hung juries oinvolved
situations in which the split was 6-6, 7-5, 8-4 or
9-3, a tiny portion of the cases, as hung juries of
all splits constitute far less than 1% of the cases
disposed of by the justice system each year.o For
example, in 1993/94 the L.A. Public Defenderos Office
handled a total of 307,241 misdemeanor and misdemeanor
traffic cases. Of those 1,203 went to trial. Of the
total cases handled by the office, hung juries account
for only .3% of the cases.
According to the Los Angeles Public Defenderos Office,
of the hung juries from July 1, 1994 to June 7, 1995,
32 hung for the first time by a count of 11-1 in favor
of guilt. oSubsequently, of those cases 4 were
dismissed outright, 10 were disposed of by negotiated
plea and 12 were retried. Of the twelve which were
retried 5 (defendants) were found innocent, 2 were
hung again (one of which was dismissed, the other
settled on a negotiated plea) and only 5 were found
guilty.o
(More)
SCA 24 (Calderon)
Page f
Thus, if this bill had been in effect, it would have
only saved the cost of 12 trials (in cases in which
the L.A. Public Defender was the attorney) and since 5
of the defendants were found not guilty in their
retrial, it would have caused 5 persons found to be
innocent, to be convicted.
In discussing the reduction in costs as a reason for
moving to non-unanimous juries, Jury Selection
Procedures states that oas to efficiency, the gains
would be minimal.o
Kalven and Zeisel report that only 10 to 15
percent of all criminal defendants ask for
jury trials and of this small percentage,
only a few trials - 5.6 percent- end in hung
juries in states where unanimous verdicts
are required. Statistics from one
jurisdiction, Multomah County (Portland)
Oregon, where a 10-2 verdict is accepted,
show that hung juries occurred less than
half as frequently as the national average -
in only 2.5 percent of the 801 criminal jury
trials held in 1970 and 1972. This suggests
that in states in which unanimous verdicts
are now required could reduce hung juries by
50 percent or more by moving to a majority
system. But this reduction involves only
about 3.1 percent of the 15 percent of the
cases that are tried before a jury, or half
of 1 percent of all cases. The economic
argument thus becomes the savings that would
result from not re-trying 0.5 percent of the
cases. And even this figure is high because
not every case ending in a hung jury is
re-tried. (Citations omitted.)<7>
Is the savings in not having to retry 11/12 verdicts
significant?
-------------------------------
<7> Van Dyke, Jury Selection Procedures, p. 209-210.
(More)
SCA 24 (Calderon)
Page g
Is the cost of retrial INsignificant compared to the
risk of convicting an innocent person (as evidenced by
the 5 ACQUITTALS after a hung jury in L.A.)?
(More)
SCA 24 (Calderon)
Page h
b. Fewer first trials.
Another cost argument used by supporters of
non-unanimous juries is that fewer cases will be tried
the first time because o[p]resently, many defendants
demand a jury trial even though they know there is
more than sufficient evidence to convict them. They
do so in the hope one irrational juror will hang up
the case and cause the prosecutor to offer a more
attractive--if unwarranted--case settlement rather
than go throughout the expense and inconvenience to
witnesses of another trial.o<8> They assert that this
would be less likely if there are non-unanimous
verdicts.
The California and U.S. Constitutions guarantee the
right to a trial by jury. The California Constitution
provides that the right to a trial by jury is an
oinviolate right.o (CA Const. Art. I, section 16.)
Although the defense attorney has the right to make
certain strategy decisions, it is the defendantos and
only the defendantos decision whether or not to accept
a plea and whether or not to go to trial.
The proponents of non-unanimous juries give no
evidence that a defendant who wishes the people to
prove their case in a court of law, as is his/her
constitutional right, even considers the strategy
aspect of creating reasonable doubt in a single
juroros mind. In fact, many times defendants refuse
oofferso by the district attorney and decide to go to
trial, against the advice of their attorney.
is it likely that non-unanimous juries cause more
defendantos to waive their constitutional right to a
jury trial and thus result in significant savings?
4. The Lone hold-Out.
-------------------------------
<8> CDAA oNon-unanimous Jury Verdicts: A necessary Criminal
Justice Reformo May 8, 1995.
(More)
SCA 24 (Calderon)
Page i
The proponents of non-unanimous juries consistently refer to
the oirrationalo juror who holds out against the majority.
They assert that the fact that this juror is oirrationalo is
one of the reasons that it is necessary to switch to a
non-unanimous jury system.
a. Ignores the minority view.
Legal expert G. Thomas Munsterman, Director of the
Center for Jury Studies at the National Center for
States Courts, thinks deliberation suffers when
unanimity is not required. He believes it is
important to give everyone a voice in weighing and
sifting through the evidence.
[A]t a time when juries are supposed to be
representative of a community, it is ironic
that a minority viewpoint can be so easily
ignored. oWe go to all this effort to get
minority participation and then we say, oGo
sit in a corner because I donot need to
listen to you.oo<9>
Thus, it is argued that when the jury does not have to
be unanimous othose in the majority may chose to
ignore the argument(s) of the minority once a majority
is assured, or the minority may forsake its position
without attempting to persuade the majority.o<10>
Michael Judge, the Los Angeles Public Defender,
further asserts that if the jury is out of balance in
terms of racial or gender diversity there is a risk
that the views of the minority will not be given
serious consideration if unanimity is no longer
required. oFor Californians, who live in the most
diverse state in the nation, culturally, ethnically
and religiously, it is more important than in any
other state that we maintain the faith and allegiance
of all peoples in the justice system.o
---------------------------
<9> Nancy McCarthy, oUnanimous jury verdicts may face a
thumbs down.o, p. 6.
<10> Jury work: Systematic Techniques, p. 12-9.
(More)
SCA 24 (Calderon)
Page j
Opponents of non-unanimous juries further assert that
it is rare that it is a single juror who goes against
the majority.
[T]he premise that a single stubborn juror
irrationally upsets the reasoned view of the
other jurors was disproved by the Chicago
Jury Project, which found that juries that
begin with a large majority in either
direction almost never hang. Only if a
sizable minority--four or five
jurors--disagree with their colleagues on
the first vote will a hung jury result. For
one or two jurors to hold out to the end
they must have had companionship at the
beginning of deliberations. (Citations
omitted.)<11>
It is argued that the nature of a jury differentiates
it from the legislative process where the majority
should prevail. In the jury process, the jury is
asked to resolve a factual dispute and decide whether
the commission of acts justify punishment. The
Legislature determines policy where the majority
should prevail. However, a legislative decision
rarely has such an immediate effect on an individual
as a verdict of guilt. Thus, the greater need for
certainty is a reason behind requiring unanimity of
juries. <12>
will the minority viewpoint be assured in
non-unanimous juries?
is there a benefit to the certainty unanimity brings?
b. Juror who refuses to deliberate can be removed.
The opposition points out that if the assertion by the
proponents is that hung juries are the result of one
---------------------------
<11> Van Dyke, Jury Selection Procedures, p. 210.
<12> Id.
(More)
SCA 24 (Calderon)
Page k
or two irrational jurors who refuse to deliberate,
then the issue is jury misconduct and not unanimity.
The opposition further notes that the California Court
of Appeal for the Second District has recently
affirmed the right of the judge to remove a juror who
refuses to participate in omeaningful deliberationso.
( People v. Feagin (May 17, 1995) 34 Cal. App. 4th
1427; 95 Daily Journal D.A.r. 6333.) Thus, if a juror
is really refusing to deliberate, then the juror can
be removed by the court.
if the court can remove a juror who refuses to
DELIBERATE, is the oirrationalo juror a reason to
change the constitution to allow non-unanimous jurors?
5. Public Faith in the Judicial System.
a. Proponents argue non-unanimous juries increase
confidence in the judicial system.
Another rationale given by proponents of non-unanimous
juries is that oAmericans are losing faith in their
criminal justice system.o<13> They assert that [t]he
function of a jury in a criminal case is to arrive at
the truth of the allegation of guilt or innocence of a
defendant. Development over time in jury practice and
procedure have made the accomplishment of that goal
with a unanimous result too cumbersome, expensive and
impractical....o<14>
If criminal procedure is unable to promptly
convict the guilty and promptly acquit the
innocent of the specific accusations against
them, and to do it in a manner that retains
public confidence in the accuracy of its
results, the deterrent effect of swift and
certain punishment is lost, the feeling of
just retribution disappears, and the feeling
----------------------
<13> CDAA oNon-unanimous Jury Verdicts: A necessary Criminal
Justice Reformo, p. 10.
<14> Id. at p. 11.
(More)
SCA 24 (Calderon)
Page l
of just retribution disappears, and belief
in the efficiency of the system of justice
declines. (Citation omitted.)<15>
Thus, proponents of non-unanimous juries argue that
fewer hung juries will increase the publicos
confidence in the jury system.
will non-unanimous juries increase the publicos
confidence in the jury system?
b. Opponents argue non-unanimous juries decrease
confidence in the judicial system.
Opponents assert that instead of increasing confidence
in the judicial system, changing to non-unanimous
juries will increase the concern the public has
expressed. They believe that unanimous juries give a
confidence that there was no reasonable doubt that a
person should be punished whereas a less than
unanimous verdict leaves a question of doubt.
When defendants are convicted despite the
objections of some jurors... the
acceptability of the verdict may well be
weakened. Indeed, one British commentator
has suggested that split verdicts encourage
dissenting jurors to publicly state their
views and that the media will be encouraged
to seek them out, stimulating
dissatisfaction with the judicial system and
a reduction of public confidence. If the
split is along racial or ethnic lines, then
the verdict will tend to enhance divisions
already existing in the community and may
convince the losing party that prejudice
played a part in her or his conviction.<16>
Thus, the opponents point out that especially in high
publicity cases the one or two jurors who have voted
---------------------------
<15> Id. at p. 11.
<16> Van Dyke, Jury Selection Procedures, p. 211.
(More)
SCA 24 (Calderon)
Page m
against the majority will likely be sought by the
press to tell their story, as is their First Amendment
right. The jurors will then tell the press what they
found lacking in the district attorneyos case, in the
police investigation or point out contradictory
statements of witnesses which lead to their doubt.
Opponents assert that this would have the effect of
placing in the minds of some members of the public a
question as to whether the verdict was fair.
Although the Supreme Court in Johnson said that for
due process purposes non-unanimity does not equal
reasonable doubt, for public perception purposes, the
opponents argue it is likely to taint the verdict.
will non-unanimous juries decrease the confidence in
the system by raising a doubt that the conviction was
fair?
6. Deliberation v. Voting.
Both proponents and opponents believe a jury is supposed to
deliberate over the evidence and then reach a verdict.
Proponents assert that with a non-unanimous verdict there
will still be full and complete deliberation but that they
will end when the required vote is reached.<17>
Proponents cite the use of non-unanimous juries in Oregon,
Louisiana and England in support of their proposition that
non-unanimous juries work.
Opponents cite evidence from these same jurisdictions to
support their assertion that the deliberations of jurors
breaks down when they may reach a non-unanimous verdict.
-------------------------------
<17> Nancy McCarthy, oUnanimous jury verdicts may face a
thumbs down.o, p. 6.
(More)
SCA 24 (Calderon)
Page n
Deliberation between majority and minority
factions weakens once the majority has enough
votes for a verdict. When unanimous verdicts are
required, juries were hung by one or two jurors
in 2.4 percent of cases, according to the Chicago
study. But in Oregon, 25 percent of juries
reach verdicts with one or two holdouts.
This provides evidence that Oregon juries
conclude their work rapidly once they achieve the
required 10 votes rather than pursuing
deliberation in hopes of convincing the holdouts.
(Citations omitted.)<18>
Thus, opponents assert that if jurors know they must agree
then they are required to oarticulate their views rationally,
to listen to each other, and to respond to the view of
others.o<19> If they must return a unanimous jury then they
know they are not simply required to vote but [f]or all their
differences, they must approach justice through conversation
and the art of persuading or being persuaded.o<20>
The opponents cite Englandos requirement that jurors must
deliberate a reasonable time (usually a minimum of two hours)
before they are permitted to return a 10-2 verdict as a
recognition that jurors will stop deliberating as soon as
they reach the required count. (Juries Act of 1974, section
17.)
(More)
-------------------------------
<18> Id.; See also Van Dyke, Jury Selection Procedures, p.
11.
<19> Van Dyke, Jury Selection Procedures, p. 211.
<20> Nancy McCarthy, oUnanimous jury verdicts may face a
thumbs down.o, p. 6.
will non-unanimous verdicts harm jury deliberations?
will non-unanimous juries cause JURORS to see their job as
voting?
7. o The Peopleo Versus an Individual.
Opponents of non-unanimous juries assert that unanimity
protects the individual from the government and the minority
from the majority.
The great object of a trial by jury in criminal
cases is to guard against a spirit of oppression
and tyranny on the part of rulers, and against a
spirit of violence and vindictiveness on the part
of the people. Indeed, it is often more
important to guard against the latter than the
former....<21>
As noted by Jim Thomas, the immediate past president of the
California Attorneys for Criminal Justice, o[n]ot every case
prosecutors decide to charge should result in a
conviction....[t]hatos why we have the process of a jury
trial.o<22>
This same feeling was echoed by Judge John R. Brown of the
5th Circuit U.S. Court of Appeals in discussing the hung
jury:
It is simply not legally correct that some jury
must sometime decide that the defendant is
oguiltyo or onot guiltyo. The fact is, as
history reminds us, a succession of juries may
legitimately fail to agree until, at long last,
the prosecution gives up. But such juries,
perhaps more courageous than any other, have
performed their useful, vital function in our
-------------------------
<21> Van Dyke, Jury Selection Procedures, p. 213, citing
Justice Story, Commentaries on the Constitution of the
United States, (4th ed.; Boston, Little, Brown, 1873) vol. 2,
sec. 1780, p. 541.
<22> Nancy McCarthy, oUnanimous jury verdicts may face a
thumbs down.o, p. 6.
(More)
SCA 24 (Calderon)
Page p
system. This is the kind of independence which
should be encouraged. It is in this independence
that liberty is secured.... ( Huffman v. United
States (5th Cir., 1962) 297 F. 2d 754, 759.)
Finally, Michael Judge, the Los Angeles Public Defender,
notes o hung juries are not a problem, they are a reflection
of conscientiously held rational differences regarding the
adequacy of the evidentiary proof in such cases.o
is it always necessary that a jury reach a verdict?
8. CDAA et. al. Suggested Amendment.
California District Attorneys Association, the California
State Sheriffso Association, the California Peace Officerso
Association and the California Police Chiefso Association see
non-unanimous juries as a necessary reform of the criminal
justice system but believe that the change should be to allow
10-2 verdicts. They have an officially neutral position on
this bill unless it is amended to allow for 10-2 verdicts.
***************