Ethan Thomas, CLS ’17
Though the right to a criminal trial by jury seems to be a quintessential element of due process, it remains one of the few provisions of the Bill of Rights still not fully incorporated into the Fourteenth Amendment’s Due Process Clause. This allows for juries in state courts to return a guilty verdict without unanimous consensus, presenting serious concerns for the rights of criminal defendants, especially as issues of jury composition persist.
It may seem intuitive today that states do not have carte blanche to restrict free speech or perform unreasonable searches and seizures, as the Bill of Rights enumerates these protections. The Bill of Rights’ restrictions on government, however, were not constitutionally mandated at the state level until fairly recently: only in the twentieth century did the Supreme Court find most of the first eight Amendments to be “incorporated” into the Fourteenth Amendment’s guarantee of due process.
Though the Supreme Court rejected Justice Black’s view that the Due Process Clause necessarily incorporated the entire Bill of Rights against the states, the Court has ultimately found, piecewise, that most of the provisions of the Bill of Rights apply. The Court explicitly recognized incorporation of the Bill of Rights’ provisions beginning in Gitlow v. New York in 1925 (freedom of speech and freedom of the press) and most recently in McDonald v. Chicago in 2010 (individual right to bear arms).
Unincorporated Rights and the Sixth Amendment
The only provisions that have not been incorporated are the Sixth Amendment’s right to a unanimous verdict, the Fifth Amendment’s requirement of a grand jury, the Seventh Amendment’s right to a jury trial in civil cases, and the Eighth Amendment’s prohibition of excessive fines. Also, while the Supreme Court has not itself incorporated the Third Amendment, the Second Circuit found that it was incorporated against the states, noting that the absence of precedent on this issue was likely due to its extremely rare invocation.
Curiously, although due process refers on its face to procedure, these few exceptions to incorporation consist mostly of the Bill of Rights’ actual procedural guarantees.
Absent authoritative case law fully incorporating the Sixth Amendment right to a trial by jury, the states are free to determine whether jury verdicts must be unanimous. In practice, this has permitted Louisiana and Oregon to allow ten out of twelve jurors to convict a criminal defendant—a practice upheld by the Supreme Court in 1972 in Apodaca v. Oregon. In the 4–1–4 Apodaca decision, with Justice Powell concurring in the judgment, the Court declined to incorporate the unanimous jury requirement against the states, allowing Louisiana and Oregon to continue allowing criminal convictions by only ten of twelve jurors. Last year, again on appeal from a criminal conviction by a non-unanimous jury in Louisiana, the Court denied a petition for certiorari to reconsider its decision in Apodaca.
The Court’s decision not to hear this issue is confusing not only because of its importance, but also because overturning Apodaca should be an easy decision.
The Case for Incorporation
In McDonald, the most recent Supreme Court incorporation case, the Court discussed what it meant for a right to be “of such a nature” as to be “included in the conception of due process of law.” The Court noted that different formulations include “immutable principles of justice which inhere in the very idea of free government…” rights “so rooted in the traditions and conscience of our people as to be ranked as fundamental;” and principles “essential to a fair and enlightened system of justice.”
Excluding the requirement of a unanimous verdict in a criminal jury trial from the notion of due process is textually perplexing as well as substantively disturbing. Unlike most of the rights that have been incorporated, this is an actual component of procedure. It is rooted solidly in common law, and has been thought to apply to the federal government since the Constitution’s ratification. Justice Powell even recognized this historical support in Apodaca, but he did not find that the practice was authoritative with respect to the states. It is difficult to find a right more entrenched in history and tradition than the right to jury unanimity, and because the jury is the cornerstone of a “fair and enlightened system of justice,” traditional rules regarding the threshold for a jury conviction should not be subject to loosening by the states in criminal trials, where the stakes are particularly high.
Further, the notions discussed in McDonald are incompatible with partial incorporation, i.e., recognizing that the states are bound only to a weaker form of a constitutional guarantee. If a right is “fundamental” and inherent “in the very idea of free government,” it makes little sense to guarantee only part of that right when a state court happens to be exercising jurisdiction. Holding to the notion that a trial by jury is fundamental but not as necessary in state courts is at odds with the principles of incorporation. Interestingly, Justice Powell was the lone justice in Apodaca who advocated this split approach: the four-justice plurality and the four dissenting justices all advocated uniform application of their respective interpretations. Though eight Justices agreed that partial incorporation was not the solution, the rule stands today.
Non-Unanimous Jury Convictions Raise Serious Concerns About the Rights of Criminal Defendants
Aside from the problems inherent in lowering the threshold for conviction, allowing a conviction over the dissent of two jurors—as Louisiana and Oregon do—presents concerns about jury composition as well. It is well-settled that procedures preventing diversity on a jury can pose constitutional problems, and this issue persists today. However, the principle that a jury should represent multiple perspectives from the community is substantially watered down if one or two minority jurors can be essentially vetoed. Further, this substantially hampers the power of jury nullification or jury review —which can be especially important in the context of prosecutions motivated by a discriminatory purpose—by eliminating the ability of one or two jurors to block a conviction when they perceive a fundamental defect in the law.
By denying certiorari on this issue, the Court allowed the Apodaca decision to stand and permitted two states to continue convicting criminal defendants without unanimous verdicts. The incorporation doctrine as articulated by substantial precedent culminating with McDonald nonetheless demonstrates that the Fourteenth Amendment should require unanimous jury verdicts in criminal trials.
 “The due process clause of the Fourteenth Amendment… does not draw all the rights of the federal Bill of Rights under its protection.” Adamson v. California, 332 U.S. 46, 53 (1947); see also Id. (Black, J., dissenting) at 71–72 (“My study of the historical events that culminated in the Fourteenth Amendment, and the expressions of those who sponsored and favored,… persuades me that one of the chief objects that the provisions of the Amendment’s first section… were intended to accomplish was to make the Bill of Rights, applicable to the states.”) (citations omitted).
 Gitlow v. New York, 268 U.S. 652, 664 (“the ‘liberty’ protected by the Fourteenth Amendment includes the liberty of speech and of the press”).
 McDonald v. Chicago, 561 U.S. 742, 791 (“We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right [as applied to individuals in recent case law].”).
 The Sixth Amendment’s guarantee of a trial by an impartial jury implies, at least with respect to the federal government, additional requirements such as unanimity. See Andres v. Unites States, 333 U.S. 740, 748 (1948) (“Unanimity in jury verdicts is required where the Sixth and Seventh Amendments apply.”); see also Kate Riordan, Ten Angry Men: Unanimous Jury Verdicts in Criminal Trials and Incorporation After McDonald, 101 J. Crim. L. & Criminology 1403, 1408 (2011).
 See McDonald, 561 U.S. at 765 n.13 (enumerating the unincorporated constitutional rights).
 Engblom v. Carey, 677 F.2d. 957, 961 (2d Cir. 1982).
 LA Const. art. I, §17 (requiring concurrence of ten jurors to render a verdict in a criminal case, unless the punishment is capital); OR Const. art. I, §11 (requiring concurrence of ten jurors to render a verdict in a criminal case, except for first degree murder).
 Apodaca v. Oregon, 406 U.S. 404 (1972).
 Jackson v. Louisiana, 134 S.Ct. 1950 (Mem.) (2014) (denying certiorari).
 McDonald, 561 U.S. at 743 (quoting Twining v. New Jersey, 211 U.S. 78, 99 (1908)).
 Id. at 760 (quoting Twining, supra n.11, at 102).
 Id. (quoting Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)).
 Id. (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)) (internal quotation marks omitted).
 “[T]he requirement of unanimity arose during the Middle Ages and had become an accepted feature of the common-law jury by the 18th century.” Apodaca, 406 U.S. 404 at 407–08; See also 1 John Adams, A Defence of the Constitutions of Government of the United States, 376 (1797) (“it is the unanimity of the jury that preserves the rights of mankind…”).
 Apodaca, 406 U.S. 369 (Powell, J., concurring in the judgment) (“In an unbroken line of cases reaching back into the late 1800’s, the Justices of this Court have recognized, virtually without dissent, that unanimity is one of the indispensable features of federal jury trial.”); see also Riordan at 1414 (citing same).
 In fact, the court there says that “incorporated Bill of Rights protections are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.” McDonald, 561 U.S. at 765 (citations and internal quotation marks omitted).
 The Court in McDonald explicitly recognized Apodaca as an “exception” to the rule against partial incorporation, noting this oddity in how the votes split, and said that Apodaca “does not undermine the well-established rule that incorporated Bill of Rights protections apply identically to the States and the Federal Government.” Id. at 766 n.14.
 See, e.g., Batson v. Kentucky, 476 U.S. 79 (1986) (holding that use of peremptory strikes to purposefully exclude black jurors warrants reversal). This term, the Supreme Court heard arguments in Foster v. Chatman, a case alleging that Georgia discriminatorily struck black jurors on the basis of race. Supreme Court Docket 14-8349; Petition for Writ of Certiorari, 2015 WL 2457657.
 See James Kachmar, Silencing the Majority: Permitting Nonunanimous Jury Verdicts in Criminal Trials, 28 Pac. L. J. 273, 307–308 (1996).
 Akhil Amar discusses the theory of the role of the jury in “refus[ing]” to follow a law it deems unconstitutional.” Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction, 98–104 (1998). This narrower theory may provide a more legitimate basis for seeking to preserve the power of the jury not to apply a law.