Oregon Supreme Court to consider whether six-person juries in misdemeanor cases violates Article I, section 11
by: Jpeterson • February 25, 2014 • no comments
The Oregon Supreme Court has granted review of the Court of Appeals opinion in State v. Sagdal, 258 Or App 890 (2013). One of the questions presented is, “Does the Oregon Constitution allow for a jury of fewer than ten members to render a valid verdict in a misdemeanor criminal case in circuit court?” Or, stated another way, does 10 mean 6?
The gist of the argument is as follows: Article I, section 11, of the Oregon Constitution provides, “in the circuit court ten members of the jury may render a verdict of guilty or not guilty.” Therefore, in any case in circuit court, including cases that only involve misdemeanors, the jury must have at least ten people. The end.
The state points to Article VII (Amended), section 9, which says that the legislature can provide for juries of between 6 and 12. The defendant replies that (1) that provision says nothing about how many of those jurors are required for a valid verdict, and (2) no constitutional provision requires Article VII (Amended), section 9, to apply to criminal cases in circuit court. In other words, the two provisions can be read harmoniously if Article VII (Amended), section 9, is a grant of authority to the legislature, and Article I, section 11, is just a limit on that authority in criminal cases in circuit court.
The Court of Appeals rejected the argument. After reviewing the history of the provisions and attempting to harmonize them, the court concluded that Article I, section 11, only applies to “felony cases in circuit court, in which 12-person juries were used.” Sagdal, 258 Or App at 901. The court also held that Article VII (Amended), section 9, “was not intended to be limited to courts other than circuit court.” Id. A reply to those conclusions could be that (1) limiting that clause of Article I, section 11, to felony cases is not supported by the wording or history of the provision, and (2) Article VII (Amended), section 9, can still apply to circuit courts, except it has to be exercised consistently with the rest of the Oregon Constitution.
Oral argument has been scheduled for September 2014, which leaves a lot of time for trial attorneys to preserve the argument, in the event the Supreme Court sides with the defendant. Prior to voir dire, a defendant could request a jury of 12 people (or at least 10). Then, follow-up arguments can be made: request a jury instruction that says at least 10 jurors must agree on a verdict; take exception when the court fails to instruct the jury; and object when the court receives the verdict from the jury. That could be sufficient to preserve the argument for appellate review and obtain reversal if Mr. Sagdal prevails in the Oregon Supreme Court.
