A Right to an Unanimous Jury at the State Level: Incorporating the Sixth Amendment Jury Trial Right

The Constitutional Accountability Center, which often puts forward originalist arguments, has a petition for certiorari arguing in favor of full incorporation of the Sixth Amendment Jury Trial Right. In the 1972 Apodaca v. Oregon case, the Court in a 4-1-4 decision held that while the Sixth Amendment required a unanimous jury to convict in federal court, it did not require such a jury to convict in state court. While the Due Process Clause of the 14th Amendment limits the procedures that states can use in criminal trials, it does not require that the full Sixth Amendment unanimous jury right be employed. In reaching this conclusion, Justice Powell’s opinion emphasized federalism and experimentation as reasons not to incorporate the Sixth Amendment right.

Since I believe (although am not certain of) the arguments in favor of incorporation, I am sympathetic to this Sixth Amendment argument. Incorporation, however, can occur under at least one of two theories. Under the first theory, the 14th Amendment incorporated the original meaning of the Bill of Rights. According to this view, the Sixth Amendment would be fully incorporated and states would be required to have unanimous criminal juries.

Under the second theory, the 14th Amendment incorporated the meaning of the Bill of Rights as of the time when the 14th Amendment was enacted. The question, then, is what the provisions meant in 1868, not in 1791. I am sympathetic to this view and have employed it in my own scholarship.

I am not familiar with how the right to a criminal jury was understood in 1868 – either the understanding of the Sixth Amendment or the understanding of the right at the state level. To conclude that states are required to have unanimous jury requirements, one would need to establish that the criminal jury right required a unanimous jury in 1868. I would not be surprised if this was the dominant view, but one wants to have evidence before concluding that the right was incorporated under this second theory.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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  1. gabe says


    As most laymen, I had not thought of this matter. Went to check out the 6th to make certain that there was no such prescription for unanimous jury – as i did not recall it.
    However, i did come across several commentaries suggesting that the early courts simply accepted the prevailing (universal, perhaps?) practice of unanimous verdict.
    Indications were that the court actually looked to history and the “general public meaning” or perhaps better – the original public acceptance.
    Whatever could have caused our esteemed Justices to stray from this path, I wonder.

  2. says

    Mike, this Constitutional Accountability Center that you mention is a liberal legal advocacy group. That’s OK w/me, since their only power is derived from their personal philosophies. Which of course, doesn’t mean a d… thing to me. I don’t know why it does to you, unless you feel they are a viable voice for Constitutional interpretative construct? Their power, as they put it, is “the power of our approach”. (Ho-hum.) How they can include Justice Hugo Black alongside Justice Marshall is beyond me (though we know you’ve blogged your own fondness for Hugo.)
    What EXACTLY did you mean by “Since I believe (although am not certain of) the arguments in favor of incorporation…” “(N)ot certain of incorporation specifically, or not certain of it being applied by CAC?
    The reason I ask this is because you have never identified “incorporation” in the sense of an enumeration in the Constitution itself, or how they (the federal court) derived the POWER to change the BOR’s ‘federal prohibition’ to the inclusion of the BOR’s prohibition of the States and the people.
    (This observation is only a partial discussion in the interest in your essay blog.)
    Respectfully, John

  3. says

    Mike, my second observation is in reference to: “I am sympathetic to this view and have employed it in my own scholarship.” Would you please lead me to your essay of your view employed in your own scholarship. Thank you.
    Respectfully, John

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