Document Type
Brief
Publication Date
5-28-2009
Abstract
Amici are university professors whose teaching and scholarship have addressed historical, behavioral, and constitutional questions about jury unanimity. Amici are identified in the Appendix.
In Apodaca v. Oregon, 406 U.S. 404 (1972), and its companion case, Johnson v. Louisiana, 406 U.S. 356 (1972), a fractured Court concluded that the Sixth and Fourteenth Amendments did not mandate the traditional requirement of unanimity for criminal jury trials in state courts. The Court recognized that unanimity had been a requirement of common-law juries for hundreds of years, but a plurality considered that historical background unimportant. Instead, the plurality relied on a functional test for jury procedures, and concluded that non-unanimous decision making was consistent with the essential functions of the jury, as the plurality saw them. In the process, the plurality assumed that non-unanimous jury deliberations would be as robust, and that minority viewpoints would be as thoroughly represented, as in deliberations by traditional juries. These factual assumptions were questionable in 1972, but there was little systematic evidence one way or the other. We have since learned that they are wrong. Empirical studies conducted since 1972 show that jury deliberations are in fact less vigorous when unanimity is not required, and that the unanimity requirement is necessary to ensure that minority voices receive full hearing. Accordingly, we urge the Court to grant certiorari in Bowen v. Oregon, No. 08- 1117, to reconsider Apodaca and Johnson.
Recommended Citation
Ellsworth, Phoebe C., "Brief of Jeffrey Abramson, Caroline L. Davidson, Shari S. Diamond, Theodore Eisenberg, Phoebe C. Ellsworth, Samuel R. Gross, Valerie P. Hans, Stephen Kanter, Norbert L. Kerr, Stephan Landsman, Robert J. MacCoun, Susan F. Mandiberg, Margaret L. Paris, Jeffrey J. Rachlinski, Mary R. Rose, Michael J. Saks, and Neil Vidmar as Amici Curae in Support of Petitioner" (2009). Appellate Briefs. 21.
https://repository.law.umich.edu/briefs/21
Comments
Amicus: Abramson, Professor Jeffrey Ph.D.; Davidson, Professor Caroline L.; Diamond, Professor Shari S. Ph.D.; Eisenberg, Professor Theodore; Ellsworth, Professor Phoebe C. Ph.D.; Gross, Professor Samuel R.; Hans, Professor Valerie P. Ph.D.; Kanter, Professor Stephen; Kerr, Professor Norbert L. Ph.D.; Landsman, Professor Stephan; MacCoun, Professor Robert J. Ph.D.; Mandiberg, Professor Susan F.; Paris, Professor Margaret L.; Rachlinski, Professor Jeffrey J. Ph.D.; Rose, Professor Mary R. Ph.D.; Saks, Professor Michael J. Ph.D.; Vidmar, Professor Neil Ph.D.