Unanimous jury verdicts in criminal cases have been required in California as long as the state has existed. Now, however, there is a serious assault on this rule, with a likely initiative on next year's ballot, endorsed by Gov. Pete Wilson, to allow non-unanimous jury verdicts in criminal cases.
Politicians, such as Wilson, undoubtedly figure that the voters will like anything that makes getting convictions easier. Yet the reality probably would be quite different.The requirement for unanimity began over 700 years ago in England and remains the law in this country in all federal trials and in 47 other states.
Changing the California Constitution after 150 years surely should require a showing of a substantial problem. But all available evidence suggests that 10-2 and 11-1 hung juries occur in only a very, very small percentage of cases.
The classic and most widely respected study of jury behavior, by Harry Kalven Jr. and Hans Zeisel of the University of Chicago, found that in only 2.4 percent of cases is there a hung jury by an 11-1 or 10-2 margin. Recent statistics compiled by the Los Angeles County public defender's office are remarkably consistent with this, showing 11-1 and 10-2 hung juries in about 2 percent of the cases.
The proposal to allow non-unanimous juries to convict would exclude death penalty cases and those where the punishment would be life without the possibility of parole. This means that allowing convictions by an 11-1 or 10-2 margin probably would change the result in an extremely small number of cases. This is hardly the compelling warrant for change needed to amend the California Constitution.
Moreover, allowing non-unanimous juries to convict would be harmful because it would change the nature of the jury deliberation process. Now, the jury must listen to and consider the views of every member. There may be many juries where there is one person who disagrees with the group and persuades some or even all of the other jurors to change their minds.
There are probably an even larger number of cases where the larger group persuades the one holdout to make it unanimous. But allowing a non-unanimous vote to convict means that the group can simply ignore the one person with different views.
Study after study about jury behavior has found that a requirement for unanimity led to juries that were more thorough in their evaluation of the evidence and where jurors in the minority participated more actively.
Most importantly, allowing a non-unanimous jury to convict would result in the conviction of more innocent individuals. There are many cases where juries hang by an 11-1 margin and a later jury acquits.
If there is little basis for the one holdout's position, then it is very likely that a subsequent jury will convict. In fact, the California District Attorneys Association concludes that there are convictions in 80 percent of the retrials after hung juries.
This strongly suggests that eliminating the unanimity requirement will not lead to the ultimate conviction of more guilty individuals. But it will lead to the conviction of more innocent individuals, as evidenced by the cases where a later jury acquits after an earlier one hung by an 11-1 margin.
The American criminal justice system always has operated on the assumption that government must do everything in its power to assure that it does not imprison an innocent person. The adage that it is better that 100 guilty people go free rather than convict one innocent person is at the core of our system.
The unanimity rule should be kept because there is no indication that it causes any guilty people to go free, but it does protect the innocent.