With Louisiana and Oregon’s non-unanimous criminal jury laws under legal challenge, look at legislative efforts to change

Two states, Louisiana and Oregon, currently allow for non-unanimous juries in criminal cases. Those two statutes are now the subject of appeals being considered for acceptance by the U.S. Supreme Court today. (h/t Andrew Cohen for the pointer).

While the U.S. Supreme Court may ultimately act on these laws, the state legislatures themselves have shown little interest in changing them over the course of the last several decades.

Louisiana

Louisiana Constitution Art. I, Sec. 17: A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict.  A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, all of whom must concur to render a verdict.

Louisiana Code of Criminal Procedure, Article 782(A): …Cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. Cases in which the punishment may be confinement at hard labor shall be tried by a jury composed of six jurors, all of whom must concur to render a verdict.

A search of legislation introduced in Louisiana since 1991 finds only a few efforts to change this law and constitutional provision, all introduced in 1997.

HB 93 of 1997 would have changed CCP 782(A)’s requirement of unanimity in 6-person juries to require only 5/6 votes.

Cases in which the punishment may be confinement at hard labor shall be tried by a jury composed of six jurors, all five of whom must concur to render a verdict.

HB 731 (constitutional amendment)/HB 732 (statute change) and the almost identical SB 276 (constitutional amendment) / SB 316 (statute change) would have ended 6 person juries for cases where “punishment may be confinement at hard labor” (i.e. non-capital felonies) and replaced with 12 person juries using the 10/12 rule.

Cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. Cases in which the punishment may be confinement at hard labor shall be tried by a jury composed of six jurors, all of whom must concur to render a verdict. All other cases in which the defendant is entitled by law to a trial by jury shall be tried by a jury of twelve jurors, ten of whom must concur to render a verdict.

None of these efforts advanced.

What did advance was SB 282 of 1997, a constitutional amendment that contended with two items. The first amended a provision allowing convictions for non-capital felonies using 5/6 jury verdicts; SB 282 made 6/6 unanimous verdicts a requirement (something already in place in statute). The second contended with what happened when a person was charged with felonies that would fall under both the 6/6 provision and the 10/12 provision. Prior to SB 282 two trials were required (i.e. the charges could not be joined). SB 282 allowed for such a “joinder” using the 10/12 law. It was approved in October 1998 as Amendment 14.

Oregon

Oregon Rev. Stat. § 136.450

(1) Except as otherwise provided in subsection (2) of this section, the verdict of a trial jury in a criminal action shall be by concurrence of at least 10 of 12 jurors.

(2) Except when the state requests a unanimous verdict, a verdict of guilty for murder or aggravated murder shall be by concurrence of at least 11 of 12 jurors.

Only three bills were introduced to address the issue of non-unanimous juries.

SB 936 of 1997 (not available online) added what is now § 136.450(2), providing for 11/12 jury decisions in murder cases. Previously murder cases were subject to the 10/12 rule. SB 936 was signed into law in June 1997.

SB 289 of 2007 was submitted at the request of the Oregon Senate Interim Committee on Judiciary for the Oregon Criminal Defense Lawyers Association.  The bill would have required unanimous verdicts in all criminal actions (“The verdict of a trial jury in a criminal action shall be unanimous.”) It was sent to the Senate Judiciary Committee and proceeded no further.

SB 293 of 2009 replicated SB 289 of 2007 and like SB 289 of 2007 it failed to proceed out of the Senate Judiciary Committee.