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United States Supreme Court declines to hear case raising the issue of whether Constitution requires unanimous jury verdict

The United States Supreme Court declined to hear an appeal from Louisiana in the case of Barbour v. Louisiana which raises the issue of whether the Constitution requires a unanimous jury verdict to support a criminal conviction. Click on this link to read the filings from the case on the Scotus Blog.

Only two states Louisiana and Oregon allow a criminal conviction without a unanimous jury verdict. Massachusetts requires a unanimous jury verdict of all six jurors in district court and twelve jurors in superior court. Accordingly, if a Massachusetts criminal lawyer obtains a verdict that is not unanimous a mistrial results and the case can be brought to trial again.

The defendant in Barbour asserts that the Sixth and Fourteenth Amendment require a unanimous jury verdict. The petitioner in the case is represented by Jeffrey L. Fisher. The petitioners argue that the United States Supreme Court should overrule its decision in Apodaca v. Oregon, 406 U.S. 404 (1972) where the United States Supreme Court held that the Constitution does not require a unanimous jury verdict.

In Apodaca, the court held that a unanimous verdict was not required by a vote of 4-1-4, meaning that the majority of justices did not agree on the reasoning
for its decision. This is referred to as a plurality opinion.

Four Justices concluded that a unanimous jury verdict was not Constitutionally required. Four of the Justices also concluded that the Sixth Amendment to the United States Constitution does not require proof beyond a reasonable doubt. Justice Powell joined the four justices in finding that the Constitution did not require a unanimous verdict, but did so based on different reasoning. Justice Powell wrote that the Sixth Amendment requires a unanimous jury verdict in a federal trial, but held that the Sixth Amendment as applied to the States through the Fourteenth Amendment did not require that the federal and State right to a jury trial must be identical.

Justice Powell opinion reflected the selective incorporation doctrine where only certain provisions of the Bill of Rights apply to the States. This selective incorporation doctrine of Justice Powell was never accepted by a majority of the Court and was contrary to the case law. By the time of the Apodaca decision, the United States Supreme Court had already held that the right to counsel, right to jury trial, Fourth Amendment and exclusionary rule applied to the States.

The petitions in Barbour argued that the reasoning of Apodaca based on a functional assessment of the Sixth Amendment has been repudiated by the Court’s current Sixth Amendment case law. The petitioners pointed to the United States Supreme Court landmark confrontation case of Crawford v. Washington which was based on the original understanding or original intent of the framers of the Constitution. Further, the petitioner cited the case of Apprendi v. New Jersey, 530 U.S. 466 (2000) which was based on providing the defendant a right to a jury trial as guaranteed by the common law.

As a Massachusetts criminal attorney, I am surprised that the Court declined to hear the case and address the Constitutional issue raised by the appeal.

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