Take the Unanimity)
by: Rjohnson • June 20, 2011 • no comments
Under Oregon law, juries in felony trials are composed of twelve people, with ten required to reach a verdict. Misdemeanor juries, on the other hand, are made up of six people and can only reach a verdict unanimously. Or Const, Art I, sec 11; ORS 136.210. It makes some intuitive sense that the defendant should be able to waive the supposedly higher protection of a felony jury and be tried to a misdemeanor jury, but a person charged with felonies cannot be tried to a six- person jury if the prosecutor objects. State ex rel Smith v. Sawyer, 263 Or 136, 138, 501 P2d 792 (1972). The prosecutor will almost surely object because, as explained below, a felony jury is more likely to convict. Accordingly, the state will more easily be able to obtain a conviction for a misdemeanant who is charged with, but acquitted of, a felony, than for a misdemeanant charged with no felonies
It is not obvious at first glance that getting ten votes out of twelve would be easier than six votes out of six, but a simplified model of a jury's deliberation helps to illustrate the point. Assume that each juror will vote to convict 90 percent of the time, and the juror's votes are independent of one another. In spite of the obvious limitations of this model, it illustrates a significant difference between unanimous and non-unanimous juries
Under this model, the likelihood of a particular verdict can be expressed as a problem of binomial probability. A binomial probability is the probability of a series of independent events, each of which has two outcomes
The chance of a guilty verdict in a misdemeanor case is easy to calculate; it is 0.9 (the chance that an individual juror will vote to convict) raised to the power of six (the number of jurors.) That works out to 0.53, or a fifty-three percent chance of a guilty verdict. Most of the remaining outcomes would be a hung jury; under this model the likelihood of an acquittal would be 0.1 to the sixth power, or .00001 percent.
However, the likelihood of a guilty verdict in a felony case is higher. Although ten votes are required to reach that verdict, there are twelve jurors voting. The chance of a guilty verdict works out to 89 percent.*
That means that when a person is charged with both felonies and misdemeanors, the state has a lower burden than when the defendant is charged only with misdemeanors. That looks arbitrary enough that it may be either disproportionate under Oregon's constitution or a violation of equal protection or due process under the Fourteenth Amendment. Further, it looks like a reason to oppose joinder of felonies and misdemeanors; the Sawyer court held that the purpose of the 1934 initiative adopting nonunanimous felony verdicts was to reduce the state's burden to convict. See also Johnson v. Louisiana, 406 US 356, 381 (1972) (Douglas, J., dissenting) (observing that nonunanimous verdicts reduce the state's burden.) Finally, it might be a reason to oppose a lesser-included instruction if you don't want one; argue that you're entitled to a misdemeanor jury or a unanimous verdict.
I plan to file a motion asking for a unanimous verdict in an upcoming case where the state may have proof problems as to the facts raising a misdemeanor to felony, on the theory that the state should not get a windfall by alleging, but being unable to prove, a felony. I encourage others to do the same, at least until the US Supreme Court makes a decision on unanimous juries or the Oregon appellate courts resolve the felony/misdemeanor jury inconsistency.
* Here is an abbreviated explanation of how to calculate the chance of a guilty verdict under this model. The chance of such a verdict is the sum of the chances of exactly zero votes to acquit plus the chance of one vote to acquit plus the chance of two votes to acquit. Any other number of acquittal votes is an acquittal or a hung jury.
Zero votes to acquit is 0.9 (the chance of a vote for a conviction, under this model) raised to the twelfth power, (the number of jurors.) That's about 0.28, or 28 percent. (Probabilities are usually expressed as a fraction of one.)
