EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, March 1, 2021

Supreme Court of Oregon Holds a 10-2 or 11-1 "Not Guilty" Vote is a "Not Guilty" Verdict and Not a Hung Jury

In Ramos v. Louisiana, the Supreme Court held that "if the Sixth Amendment’s right to a jury trial requires a unanimous verdict to support a conviction in federal court, it requires no less in state court." Before, this opinion, a defendant in Oregon could be convicted based on 10 (10-2) or 11 (11-1) jurors finding him guilty, and a defendant could be found not guilty based on 10 (10-2) or 11 (11-1) jurors finding him not guilty. Clearly, after Ramos, defendants can no longer be convicted based on 10-2 or 11-1 jury votes; instead, the result is a hung juror/mistrial But can they still be found not guilty based on 10 (10-2) or 11 (11-1) jurors finding him not guilty, or is the result also a mistrial? That was the question answered by the Supreme Court of Oregon in its recent opinion in State v. Ross, (Oregon 2021).

Ad, according to the Supreme Court of Oregon, a 10-2 or 11-1 not guilty vote means that a defendant is not guilty and cannot be re-prosecuted. According to the court,

the Court in Ramos rejected Oregon's practice of accepting nonunanimous guilty verdicts, not because Oregon had adopted the law for an improper reason, or because of the Court's concerns about racism, but because the text of the Sixth Amendment codified the longstanding legal requirement that “[a] jury must reach a unanimous verdict in order to convict.”...The trial court went astray by treating one of the Supreme Court's criticisms of Apodaca as though it were a ground for the Court's constitutional holding concerning the Sixth Amendment. As noted earlier, the Court faulted the Apodaca plurality's functionalist reasoning as deficient even taken on its own terms. But the Court did not hold that the acceptance of nonunanimous guilty verdicts was impermissible because of the history of those provisions; instead, while rejecting the Apodaca plurality's functionalist approach, the Court expressly stated that the reasons for the practice were irrelevant to whether it violated the Sixth Amendment....The Court's criticisms of Apodaca, and of nonunanimous jury provisions in Louisiana and Oregon, do not have a constitutional stature, and they do not point to a conclusion that Oregon's nonunanimous acquittal provisions cannot constitutionally be applied.

Ironically, then, Oregon has gone from the worst state for defendants in terms of jury unanimity to the best state.



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