Apodaca v. Oregon

LOCATION: Oregon State Capitol

DOCKET NO.: 69-5046
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: State appellate court

CITATION: 406 US 404 (1972)
REARGUED: Jan 10, 1972
DECIDED: May 22, 1972
ARGUED: Mar 01, 1971

Facts of the case

Apodaca and two other defendants were convicted of assault, burglary, and grand larceny before three separate juries, all of which returned verdicts which were less than unanimous. Two of the cases were 11-1 and the other was 10-2 in favor of conviction.


Is a defendant's right to a trial by jury in a criminal case in a state court (as protected by the Sixth and Fourteenth Amendments) violated if the accused is convicted by a less-than-unanimous jury?

Media for Apodaca v. Oregon

Audio Transcription for Oral Reargument - January 10, 1972 in Apodaca v. Oregon

Audio Transcription for Oral Argument - March 01, 1971 in Apodaca v. Oregon

Warren E. Burger:

We'll hear arguments next in number 53-38, Apodaca and others against Oregon.

Mr. Sobol, you may proceed when you're ready.

Robert B. Sobol:

Thank you.

Mr. Chief Justice and may it please the Court.

These cases are here on certiorari to the Court of Appeals of Oregon.

The issue is similar to that involved in the preceding case, but different in a very fundamental respect.

The -- each of these three criminal convictions were tried after the date of this Court's decision in Duncan versus Louisiana, and under the holding of DeStefano against Woods, therefore, the cases that I am now about to argue are governed by the Duncan rule by which this Court held that Sixth Amendment right to trial by jury by virtue of the Due Process Clause of the Fourteenth Amendment is applicable to the state criminal proceedings.

As a result of that holding, the primary question before the Court in these cases is whether the Sixth Amendment of the United States Constitution secures unanimity in jury trials.

The petitioners in each of the -- each of the three petitioners in these cases were convicted of a serious crime by less than a unanimous jury in the State of Oregon in accordance with the procedures set forth in Article I, Section 11 of the Oregon Constitution which permits a jury to render a verdict of guilty other than murder in the first degree by 10 out of 12 votes with 2 jurors in disagreement before the sentence.

In the Madden case, the charge was grand larceny.

The record shows the jury was out less than 30 minutes and rendered a verdict of guilty by 11-1 and Madden was sentenced to 3 years in prison.

In the Apodaca case, the charge was assault with a deadly weapon.

The jury was out for 41 minutes.

They rendered a verdict of guilty by a vote of 11-1, and Apodaca was sentenced to 5 years in prison.

In the Cooper case, the charge was burglary in a dwelling.

The jury was out for 51 minutes and rendered a verdict by a vote of 10-2, and Cooper was sentenced to three-and-half years in prison.

Each of the cases was appealed to the Court of Appeals of Oregon which followed the recent decision of the Supreme Court of Oregon which, by a 4-3 vote in state began, held that interpreting Duncan that the rule of unanimity, Historic Rule of Unanimity, was not incorporated by the Sixth Amendment and was not applicable to the states.

The Supreme Court of Oregon denied review in these cases and this Court granted certiorari.

In Williams against Florida, decided last term, this Court held that only those common law requisites of trial by jury that are fundamental in their purpose that are essential to the functioning of a jury as an institution secured by the Sixth Amendment, and the mere fact that a procedure was part of the jury requisites, a common law does not itself satisfy the standard for inclusion in the Sixth Amendment unless there is a showing that that procedure is fundamental.

Our argument here is plainly within the holding of Williams.

We think that there was, as the Court said in Williams, there was no showing that the number 12 could be shown to have served any special or significant function.

We think there are several reasons, why the requirement of unanimity serves important functions for the jury, and it's on this basis, we ask the Court, applying to Williams holding to hold that the right of unanimity was incorporated by the Sixth Amendment and is therefore, applicable to the trial of these petitioners.

Warren E. Burger:

Now, when you say “was incorporated from framers,” from the colonies that had less than unanimous verdicts or from the English common law?

Robert B. Sobol:

I'm not making the argument, Mr. Chief Justice, that we automatically have a rule of unanimity because of common law history.

I'm accepting the test articulated by the Court in Williams, and that is that it is not bound by history on this point, that both the common law history and the constitutional history leave the question open.

That's what this Court said and that the issue, therefore, for the Court to decide in each instance is the fundamental nature of the requisite in issue --

Warren E. Burger:

On the standard --

Robert B. Sobol:

On the standard of the --

Warren E. Burger:

The Constitution or something other --

Robert B. Sobol:

No, the constitution.