Advocates; Would Justice Be Served Better if a Jury Didn?t Have to be Unanimous to Convict Someone? ; 306

Good evening ladies and gentlemen and welcome to the advocates the PBS fight of the week. Tonight's broadcast is coming to you from the Moot Court at Georgetown University Law Center in Washington D.C. The question tonight is would justice be better served if the jury didn't have to be unanimous to convict someone urging the adoption of less than unanimous jury verdicts in criminal trials. Is Evans Amergin a practicing attorney from Boston. Appearing with Mr. Amergin will be Jacob Tanser former solicitor general of the state of Oregon and Keith Mossman chairman of the criminal law section of the American Bar Association arguing for the rule that requires juries to be unanimous advocates. James Hill a practicing attorney from Atlanta with Mr. Hill will be Samual Dasch professor of law at Georgetown University and Melvin Bell a lawyer and writer from San Francisco. Ladies and gentlemen may I have your attention please. Moderator Michael Dukakis has

just called tonight's meeting to order. Welcome ladies and gentlemen and thank you for joining us on the advocates here in Washington D.C. tonight as a change of pace for the advocates as we turn from the hurly burly of a tough presidential campaign to the consideration of a fundamental element of American justice. Last May obscured perhaps by the presidential campaign itself. The Supreme Court of the United States ruled that states could convict persons of crimes by a less than unanimous jury vote. The Supreme Court decision followed a period during which the American people have witnessed a spectacular series of criminal trials. The prosecution of Charles Manson the trials of Jack Ruby and Sirhan Sirhan the Justice Department prosecutions of the Paragons Bobby Seale and the Chicago Seven. And in each of those cases the institution of the American jury was very sorely tested. Many issues are involved in the question and we debate this evening. The quest for Law and Order. Growing delays and congestion in the courts and the efforts of some to disrupt the orderly procedure of a criminal trial and finally the fundamental

question of the guilt or innocence of a particular defendant be it a neighbor or a friend or even perhaps a son or daughter who has been accused of a crime. These Or at least some of the questions that we're going to be facing this evening as we consider a proposal that would permit someone to be convicted of a crime by a less than unanimous vote. The jury Mr. Amergin Would you please begin our proposal tonight. Is that all states should have less than unanimous jury verdicts in criminal cases at the present time. Two states Oregon and Louisiana accept such verdicts in felony cases. Three others Idaho Montana and Oklahoma. Except them and misdemeanor cases. And last May as you've just heard the United States Supreme Court in two cases ruled that less than unanimous jury verdicts are proper under the Constitution. Now there are a number of reasons for adopting this procedure that we're proposing in the first place both 12 man juries and unanimous jury verdicts are clearly historical accidents. And the Supreme Court of the

United States has already acknowledged that. In fact the jury originally had nothing to do with the term mening guilt or innocence but consisted of witnesses to events in the case. And as the system evolved the jury then found itself issuing verdicts. But there was no unanimity required of a particular body of 12 because they just kept adding jurors until they had 12 votes. And from this system of not requiring unanimity. The system which now prevails in most states evolved. Now look at these senseless defects which are inherent in this unanimous jury system by requiring unanimity. We let one juror frustrate a decision. This means. That if that juror is the only one. Who votes to convict the defendant. He produces a stalemate and that defendant might be prosecuted as many times as a stalemate results. Instead of granting that kind of power to an extreme minority on a jury. A more sensible system

would permit an 11 to 1 or a 10 to two or a nine to three verdict. This would help eliminate 6000 hung juries a year in the United States that would speed up our criminal trials. It would help make sure that we convict the guilty and acquit the innocent. Most other countries including Scotland and England have adopted this system and have lived successfully with it. Their courts are not only as fair as ours but they work more efficiently and quickly and in this country Oregon has used the less than unanimous jury system for more than 30 years. And here to talk about it is the former solicitor general of Oregon Mr. Jacob attends. Welcome. To the average Center. Mr. Tanzer argued the case in which the Supreme Court of the United States held that less than unanimous juries are constitutional. And he's now director of the Oregon Department of Human Resources. Mr. Tanser is there anything magic about either the number 12 or

unanimous jurors. No they are as you indicated historical accidents arising from 14th century England when the juries which hitherto were essentially witnesses. And it was incumbent upon one side to produce 12 votes to a given fact change to triers of facts of disinterested parties and the requirement of 12 just stayed with it and got locked into the system. It had been criticized by Jeremy Bentham and Blackstone severely and in fact England changed in 1967 to a system similar to the organ system which requires the concurrence of 10 out of 12 jurors. What were the historical methods they used in the old days. Well because unanimity is not really a natural condition of any 12 men they resorted to all kinds of devices in order to compel or coerce unanimity. Jurors were required to deliberate without heat without food without light until they came to a verdict and a dissenting juror was even tossed in jail under

contempt until such time as he rendered a verdict with the majority that kind of practice continued in actually into the late 19th century even in this country but today we have such methods too. And we have really more I think the form than the substance of unanimity because today we have comments on the evidence by the judges which substitute their judgment for the jurors. We have the Allen charge which tells of a deadlock jury go back and decide we have a compromised structure built into the law so that it encourages jurors to compromise. We don't have Allen charging comment on the evidence. In Oregon we do have attended two system and really I think of the 10 to two is more accurate really reflects the convictions of the individual jurors. How about this 12 man unanimous jury is it really traditional in the United States not in the United States either as a traditional because we know that when James Madison wrote the sixth amendment to the Bill of Rights included a provision which required unanimity and the Congress struck it out because the Congress felt

that the practice in the States was too diverse to impose one requirement at that time. New York and Connecticut the Carolinas and Pennsylvania all had non unanimous systems. And since then as you pointed out Oregon and Louisiana and felony cases and several other states and misdemeanor cases have not required unanimity. Now you've told us that unanimity is not a pervasive tradition. And I take it that as a result of what the Supreme Court has said and what you've just said that. It's not essential to the function of a jury. What are the purposes of a jury. Well the first purpose is to decide cases that is to convict the guilty and acquit the innocent. And the second purpose is to have that decision made by common sense citizen judgment instead of official judgment of the district attorney or of the judge. Now what about the defects inherent in the unanimous system. Is there a veto power essentially under the unanimous

system for example 11 jurors may wish to acquit one juror who wishes to convict can veto the action of those 11 people and it can happen the other way around. Well the first example of the Vito for example came out during the Berrigan brothers trial the Bobby SEAL's trial where the jurors were hung. I tend to to for acquittal. And had they had a non unanimous system such as the Oregon system there would have been acquittals in those cases and any remaining clouds over their names would not have lingered. Now was there anything but I'm afraid I have to turn to Mr. Hill who was itching to ask you some questions to help. Thank you Mr. Townsend. Perhaps we can seek to agree on what the problem is if we can't quite agree on its solution and aid us in doing that. I wonder if I might ask you to look with me at this chart. This chart shows the total of criminal prosecutions in the United States in a given year. Typically I believe so that it is clear that

75 percent of the criminal prosecutions do not go to any sort of trial but are disposed of by police. Is that your understanding. Well I can't speak to the national figures and I don't know the source of your figures. That is not an accurate reflection of what happens in Oregon and particularly in Portland Oregon where approximately approximately 60 percent of the cases are handled by police. All right so if the Chicago jurist that is found 75 percent nationwide would you accept that. Well I would have to say that those figures are 20 years old. Mr. Hill and particularly with the increasing development of defendants rights which has gone on in the last 20 years under the direction of the Supreme Court of the United States I would speculate that the number of trials has increased considerably. All right. Well when the last survey was done if this be it there were 25 percent of the cases tried. Was that corrected according to what you read. I'll accept your figures I said. And then 10 percent of those over just tried before a judge without sugar. Is that correct. If you say so sir I said Well I submit that the work

done by the Chicago jury Project found that only 15 percent of charges went to jury trial. Now do you agree sir that 5 percent of those jury trials under unanimous system result in this trial because of a hung jury. Well that statistic is a little. It should be pinned down a little bit more in non unanimous States. There is a 3.1 hung jury rate in unanimous States. There's a 5.6 percent non unanimous rate so there's a different rate for each type of system. And there are 81 percent more hung juries in the unanimous States than in the non-anonymous So that's 2 percent of the trials that 81 percent you speak of and a half percent two and a half percent of the trials. Now gentlemen I think we can agree that a relatively small percentage of all criminal defendants and in a jury all agree on that. All right. And I think we also agree so from what you've just said that going to a non unanimous system would not cure all of those it would go three point six

to five point something every move a little less than half of them. All right. Now if you remove about 45 percent of all of those five percent if it be 5 percent you're working on a problem that might solve a solution that would solve three out of 100 year trials that are home that you say you could hang by denying the full unanimous verdict to all trials is that your testimony. Yes. All right so now do you contend seriously that those few juries add considerably to the congestion of our courts. Absolutely. And I'll tell you why you don't. You cannot just look to one device. When we tried to improve the criminal justice system to make it more expeditious so that we don't have people stacked up in the jail waiting for trial you must attack every element and every device in that criminal system to see if it can be improved without prejudicing a defendant in that situation. 3 percent from this and 3 percent

from something else gives a much better result. And in Portland Oregon trials today are averaging 45 days after arrest within 60 days maximum after arrest. And there aren't many jurisdictions that can say that we don't have a Tooms in Portland for example you don't have that. Gentlemen just to explain to our audience the films take it as the prison in New York where everybody gets stacked up waiting to go to trial. Right. In New York without abandoning the traditional jury verdict but by invoking pre-trial procedures they have caught up in New York. Have they not. I'm not aware that they've caught up and I'm not aware that the tomb is is now uncrowded. All right. Let me ask you this though what is Oregon's rule in first degree murder trial first degree murder trials or constitutional provision does require unanimity. And is that because first degree murder trials are considered to be rather serious. I think that it's probably due. I'd have to speculate on the motives of the crime commission which recommended it which incidentally included Senator Wayne Morse who was a law professor.

I would I would speculate that that they saw the death penalty which then existed it doesn't more as being a little bit more irrevocable and irremediable in the case today. Yes. This gentleman I'm going to have you up at this new industry here you're going to have an opportunity to come back to Tanzer. Well economists are emerging for another question. Mr. Tanzer is there anything about unanimity which is a guarantee of any sort of protection for the defense. Well not unanimity per se if the purpose of the jury trial is to interpose a protection of citizen judgment. And I would say that for example if we had 100 member juries which required say ninety nine in order to convict that would be a much safer protection a much more substantial protection and requiring only 12 out of 12. So there's nothing magic about unanimity. Instead we try to look at how things function in the Oregon system. There have not been miscarriages of justice according to Calvin's isover University of Chicago jury study to any degree which is different

from other states and I'm only aware of one innocent man who had been convicted in that by a unanimous jury. I understand that let's go back to Mr. HILL. I think I interrupted Mr. Hill when you were asking about the first degree murder situation. Yes. You had a first degree murder conviction when it was required that the jury reach a unanimous decision and it was an innocent man who was convicted in Oregon is correct. No that was the robbery of a gas station actually. All right. But it was a unanimous verdict. Yes. And now you want to lower the safeguards a little lower. Even though that human system produce two that unjust result. No what I'm saying is that the concurrence of 10 men persuaded beyond reasonable doubt has been just as safe and just as protective as the requirement of 12. If you assume of course that those two are not people of reason is that correct. No I'm not suggesting improper motivation to them at all. But I think it is very common that when that that's the hold out particularly

the single hold out as frequently for extra judicial reasons or from a mis understanding of the evidence or simply because they carry a prejudice with them and don't disclose it to the judge or to the lawyers during voir dire. Just those two Manesh gentlemen I'll have to interrupt and Tanser. Thank you very very much for being with us. The. Other. Version when Mr. Tanzer was referring to something that was extra judicial I gather he meant something outside the court and I think that's what he meant honest or decisive in any event perhaps you want to explore that later perhaps later. I think that on the basis of Mr. Tanzer testimony it's pretty clear that our proposal has worked well in states and countries that have adopted it. And here tonight to help us further understand the justice of tonight's proposal is Mr. Keith Mostel. Talking to. The Editor. This morning. Mr. Mossman is chairman of the criminal law section of the

American Bar Association. He's a former district attorney and he's now a defense lawyer and criminal cases. Mr. Mossman are 10 or nine out of 12 people enough to guarantee a fair verdict. Well I think saw we still have the same burden of proof the same requirements of BURDEN OF PROOF. The prosecutor still has to convince 10 out of the 12. Beyond a Reasonable Doubt we aren't lessening that any. We're just saying that one person or two people. Cannot thwart the whole jury system such as a number of years ago. I happen to have a case in which there was a lady on the jury and she held out against confession and after the trial was over she was asked why she said because of religious reasons she says I believe that if a man strikes you on one cheek you should turn the other cheek. You never should convict. Now she was thoroughly examined all that on voir dire yet she failed to reveal any of those things. It's those kind of people sometimes with one vote

that can veto the whole system. I don't think that no matter how convincing the proof would have been in that case that woman would have ever voted for conviction the same thing can happen on the other side you can have the same type of person who under no circumstance would acquit. They may be a strong law and order person who can get on a jury no matter what the evidence is. I think you eliminate that type of thing when you eliminate the unanimous verdict for the phrase of you. Yes and I think we're going to ask him Amergin in Boston we do call his idea but the right thing I guess and I'll tell us what it is we did this morning. Well let's see the examination of jurors by attorneys before the introduction of evidence to determine the qualification of jurors. And many times we know that jurors are just reluctant in front of a crowded room of their friends and neighbors to tell you all about themselves. They just don't reveal all of the feelings that they have whether they're strong law and order or strong against conviction and so on.

Well how about this minority Mr. Mossman are we saying that this minority under our proposal should not be listened to at all. Oh no of course not. My experience has been with juries that every person that's selected and goes into a jury room has a chance to express his or her views. But we're not saying here that we only should listen to 10 people and not all of them. We're saying that when it gets down to the final vote that if 10 people out of the 12 decide that they should convict or 10 out of 12 decide that the man should go free and should be acquitted but that's sufficient. It will eliminate hung juries and mistrial so that we have to try the case over again. Well now what about the jurors who may be dissenting on the jury. Was there anything about our proposal which would either encourage or discourage their views being expressed. I don't think that you're going to keep people from expressing their views by a non unanimous verdict. As a matter of fact I think you might encourage them to express it for this reason. But supposing that you have one person on the jury that's holding out for acquittal and the other 11

are all for conviction it's getting late at night that women want to go home and take care of their children the man want to get sleep. They've got to go to work tomorrow and so on the pressure of those 11 for a unanimous verdict becomes terrific in that jury trial. And as a result the the people want to get home so they put pressure upon that one person and pretty soon the person that's holding out hates to express the views hates to continue to argue and finally says Well I'm just going to hold on I think you have a freer expression if you have known you because a person can say well even if I vote for acquittal or if I vote for a conviction I'm not holding it up because if the other 10 want to go the other way why they can go and we can get this case overturned Mr. WEISSMAN Let's turn to Mr. Hill though I suspect you may disagree with you on these points. Mr. Mossman you are saying that if the district attorney has to convince only 10 instead of having to convince all that this is in some sort of a way you just describe a great safeguard to that defendant. Is that really a serious can of

convictions. No sir I don't think that it's any more safeguard to the defendant than the unanimous verdict. But I don't think it's any less either. All right so let me ask you if we can agree that the ultimate conviction and execution by a majority is what used to be called a necktie party at hanging tree or more familiarity. Lynching isn't it. Oh no I don't think there's any comparison that's that's up. There's no comparison in that at all convincing tan jurors in a courtroom with evidence and the court's instruction and convincing 10 people beyond a reasonable doubt can't be compared to a lynching party. It's not in our part of the country. There is no passion and you're a part of the country. There's a great deal. Is it not true that the purpose behind the effort to

destroy the unanimous jury verdict and substitute a committee report is pressured to get more conviction. No sir not at all. I think one of the reasons is to speed up what I call slow motion justice. One of the greatest concerns I think. That the American citizen has today about the American system of criminal justice is slowmotion Justice knows slow justice no justice. And I think this will help to speed up the administration of criminal justice. And I think that the experience in Oregon the experience and England experience in Scotland has been. That the defendant's rights are fully protected and yet we have half as many mistrials half as many hung jury. Now that's bound to speed up the administration of criminal justice by two out of 100 cases. It is. If if you only speed it up by 2 percent. You've made a improvement in the system of criminal justice. Now if we speed it up in the field of discovery by 2 percent in the field of omnibus hearing but 2

percent in the field of pretrial motion by 2 percent and the field of non unanimous verdict by 2 percent we made a great improvement. I'm for any improvement in the administration of justice and I'm sure you are too. Well yes but I would submit to you that speeding things up might do away with the delayed justice. But aren't you just substituting prompt and justice. No sir. The experience in Oregon has been. That way with the appeals from these cases. That they have had a 94 percent rate of conviction on appeal. And I don't think you can say that their experience shows that there's going to be more error in the trial. I don't think you can say that there's less deliberation or that the jury has given less thought. After all before you can get a conviction 10 of those people still have to be convinced beyond a reasonable doubt. And if you get one kook on the jury you can eliminate that. And it may be a kook. Either way it might be somebody on the jury who because of

some extra judicial feelings who might complain about corruption. Well I'm talking about that too. I've been involved in cases where I have had gambling that occurred where they were betting on the outcome of a jury trial and this was that was in Oregon wasn't it. No sir. I mean how. Need them and now you convey to one member of the jury and it was influence the vote and the case had to be retried. Well there's been intimidation. Gentlemen I have to say to you that there are apparently quaint customs in various states in the nation. That's the hardest we won't get to messages but. Did you as the prosecuting attorney take that lady you described as a kook and that of you juror all about the betting going on that you've just described after exhausting your best efforts at board examination to see if I were fair and impartial jury.

Yes sir. I accept this lady as a juror and the defense counsel I accepted that lady as a juror and that's only an illustration. It's very difficult. When we examine people for their qualifications. As I said before very difficult to determine the background the experience the feelings the emotions of those people. You get someone who has had a member of the family who has been a victim of a very vicious crime. And that person very often will not relate the strong feelings that they have. And you get a person like that on the jury and they're bound to carry some of that extra judicial information and knowledge and emotion that they have in the jury trial. Mr. Mossman Let's turn back to some version for perhaps one brief question. Mr. HILL apparently is trying to equate unanimity with justice. Mr. Mossman is there any important decisions that are made in this world where there's no unanimity. All the more important decisions I would say that are made by majority vote than are made by unanimous vote. Congress can declare war affecting millions of lives of

people and they don't need a unanimous vote of Congress the Senate. Can impeach the president and it should not be in and. There are many decisions that are made. Our appellate courts. A few months ago there were hundreds of prisoners that were in our prisons in the United States awaiting execution under the death penalty and their lives and the decision as to what happened to them was made by a Supreme Court decision by a five to four vote we all require that on the Supreme Court so why should we on our juries. Gentlemen let's go back to Mr. Hill for another question or two what happens to the Congress what happens to the Supreme Court. Do they stay in session or disperse for ever after they've made those majority decisions. They continue to operate don't they. Yes so that they can correct any mistakes they make by majority vote merely by reconsidering at the next Monday morning they. No I don't think so I don't think the Supreme Court can reconsider his own.

Decisions on Monday morning. Well what happens to the jury after it makes its vital decision. Does it stay in session so that it can review it from time to time. These are some of the appellate courts review that the appellate you can appeal the decisions and the appellate courts have the right to review it just do they not just the application of law. No I don't think I have to get it this time it is true that the appellate courts do review the law. But I think it's true also that they have a real effect on the fortunes and lives of the people there whose cases they're deciding Mr. Mr.. Thanks very much for being with us. What I hope is clear from this testimony is that there is no magic either about 12 jurors or about unanimity. The system of unanimity is a historical accident no deliberate decision was made with respect to it. It just happened upon us

and here we have opponents to our proposal who are just trying to defend really a historical accident. It seems to me that it doesn't make it right just because it is something that we've had for a long time. It seems to me that from the testimony you've heard tonight the adoption of our proposal would actually increase justice not only for those of us who are interested in convicting the guilty but also interested in acquitting the innocent. Like him a surgeon we have now reached the midway point in our program and for those of you may have joined us late today Mr. Amergin and his witnesses have been arguing in favor of Mosul which would permit convictions for crimes by a less than unanimous vote of a jury. Now we turn to Mr. Hill who's going to take the opposite point of view and here he is. I gives him you know life is considered by some to be an excellent. Tonight's proposal I submit to you. Would signal the end of our jury system and it would immediately convert the historic unanimous jury verdict into nothing more than the report of the majority of the

committee understand that states Powell to make this change is not an issue. States have sovereign power to do evil and foolish and regrettable things but in affirming the existence of that Power Justice Black Men of the Supreme Court made it clear that if he were a state legislator or he would vote against abolishing unanimous juries for six centuries this system has served us well and no substantial fold now appears in the system just the complaint of a petulant few who would like to run roughshod over the beliefs and failure hill of monarchy's mistrials. Mistrials due to a hung jury is exceedingly rare that a single juror or does not tie up a jury. Only one mistrial develops in each 130 or more criminal charges. This charge shows that in every study case where three or less dissented on the first ballot unanimous

verdict was yet reached home. Juries never result that unless the jury was initially split right down the middle and in 85 percent of those cases they nevertheless reached a verdict. But these verdicts could not be reached without consideration being given to the minority view to show the importance of that fact. I'd like to call as my first witness Professor Samuel day. The. End. Of. The first day. She is director of Georgetown Institute of criminal law and procedure. He is a former district attorney of Philadelphia. He is chair at was past chairman of the criminal law section of the American Bar Association and is a practicing lawyer intro work professor. I have suggested that the present jurists system is serving us well and efficient.

What has been your experience or my experience both as a district attorney as a defense lawyer is that it has and I think we have to remember that we are not dealing with a computer system of justice but with a fallible human system. And if we can produce 95 percent unanimity in verdicts in a fallible human system then I think we're doing very well. And in fact if we start getting anything more than 95 percent I would say that we're not getting a good jury system we're probably getting a rubber stamp and that 5 percent hung jury to me means that the jury system is working. All right. So why do you believe that jurors should be forced to stay in session and attempt to reach unanimous verdict rather than majority verdicts. Because I believe that every member of that jury must be convinced beyond the reasonable doubt that the prosecution has made his case. And I don't want those 10 who want to go home early to cancel out the two who may be conscientious and intelligent and know what the case is about and therefore that they have to sit together and deliberate and consider all of the issues. And it may be by considering them that they'll still come out unanimous and it may be that they will actually

compromise but the compromise will be a fair one because the prosecutor doesn't deserve more if he can't persuade all of them. All right. So under a majority vote system. Could a majority ignore the views of a minority. Well certainly can. It seems to me it has and in Oregon as I understand Oregon you now get a 25 percent majority verdicts which indicates that quite a few majority jurors have ignored the minority. And it's and it's that which unanimous verdicts are aimed to prevent that 25 percent majority as opposed to only 5 percent mistrials in the nation as a whole. That's right. And it seems to me that even among that 25 percent in Oregon if they were required to stay in. And continue to deliberate 20 percent of that 25 percent would still come out with a verdict and they still would be having only 5 percent. So we've seen that three to one dissenting jury is on first ballot sold them tie up a jury. But do they contribute anything to justice by

dissenting. Well I think they do. I think we've heard about Pooks And I think we've heard about the individual case that may involve a corrupt juror but actually one out of 10 of these disagreeing jurors turned a jury around and actually get the jury to go their way. They hang sometimes and if they do hang the jury which means they disagree. And the case must be tried over. That's fine. That's the safety valve in our criminal justice system. That means the prosecutor hasn't persuaded all the jurors if he hasn't he hasn't done his job. And if sometimes they finally all agree I believe that those few who make the rest of the jurors listen. Give us a fair chance and I still insist that that's important because we're dealing with a fallible system. Professor Dash Mr. submerging is straining at the bit to get out. Professor Dash I take it that you won't even concede one juror No I won't I won't I won't concede that one cannot even worse that even one so that even an 11 to one vote offends you. Yes it does because that that one may be the

conscientious juror is understood the judge and he's telling the rest of them listen to what the judge told us to do and the rest want to go home. How do you know. How do you know what that one juror is saying to himself. How do you know what he's not saying to answer my question. We know now what it is that it not Mr. dash when I asked you a question I appreciate you want to ask me questions but what I really am interested in the answer to how you know what that juror is doing when he refuses to go along with the rest in the abstract. The answer is you don't know don't know. But having interviewed a number of jurors who've been on hung jury that you get time and time again the complaint that's what that one juror has attempted to get the rest of the jurors to listen to the instructions of the court and to the facts. And if if that one juror and then the courts have said time and time again that he has a right to his conscientious position and that he has a right to hang that jury.

That's the only chance we have to maintain our free says you're seeing the single juror who always refuses to go along with the rest and hangs that jury. In your experience in your interviews is always right. And the other eleven are always wrong. I'm not. It's not fact. Well that's what I thought you'd just go. Now you're saying we'll accept one but I think we got off on that. Am I right that you saying that that single juror complained that the others would not listen to him and therefore he descended and hung the jury. Well it concerns me in a fallible system of justice that the prosecutor can't prove guilt beyond a reasonable doubt to include that one. That one is a member of that of the whole. Professor Dash you're really confusing two separate issues aren't you. I mean you're confusing whether or not you ought to have a unanimous jury with what is the burden of proof and we're not going to get into that tonight. Well I think frankly that they're pretty much the same. You know that many states have unanimous jury verdicts in civil cases and you know the burden of proof isn't the same there. Don't you know an and. Thank God it's not. Well then how can you possibly How can you possibly reconcile that fact that what you got just saying what I'm saying is that in a criminal case in a criminal cases one of the most serious things that we have because it threatens the liberty of an individual and the stigma of crime that I

don't think we should have anybody convicted unless 12 members all agree that the prosecutors prove this and you won't even you won't even come down. Or any of your students in the audience by the way. You're going to see it come on again. No I haven't. You won't even come down one. Let me ask you how many jurors have you interviewed in a non unanimous jury system. In a non unanimous jury system I have not conducted any empirical research but I'm concerned that's what I thought. May I ask another question. I don't mean to interrupt you but we don't have that much time. Well I'm concerned. At the fact that Argan returns 25 percent majority verdicts. Concerns me very much. Why does it concern you. No because obviously if the rest of the country were only at 5 percent juries and Argan through their majority system now be able to get 25 percent majority that they. To me that means that they're not carefully considering the case. There's nothing about Oregon that makes Oregon peculiar with respect to the kinds of criminal cases it

has that you know of. So I take it that you'd be happy with the Oregon system where jurors feel freer to dissent. Isn't that right. If they felt free to the Senate I would like their dissent to count and the Count mean that they would not be able to get a conviction. In other words you're in favor of a hung jury. Yes. I think that a hung jury is an inherent part of our system of justice. Well it's inherent because we're stuck with it doesn't mean you can't change it. No but I would I wouldn't want to change it. I wouldn't want to change for. I understand that's what I mean. No no because I think what has been brought out here earlier by the witnesses that would want to change it is that the reason is for expediency and efficiency and I think we've talked about speed well and I mentioned I'm going to have to interrupt at this point. Professor Dash Let's go back to Mr. Hill for a quick question and then merge and you'll have a chance along the line you were just addressing yourself to. Do you agree with Judge Brown or the Fifth Circuit United States Court of Appeals who said in his own opinion I think a mistrial from a hung jury is a safeguard to liberty in many areas. It is the sole means by which one or a few may stand out against an overwhelming

contemporary public sentiment nothing should interfere with its exercise. Do you agree with I-30 agree with that because as a defense lawyer representing some pretty unpopular clients I would like to have. That hung juror who wants to stand out conscientiously against the crowd who would like to hang him stand on his right and see to it that his views are heard. Gentlemen let's go back to submerging another question or two so that our viewers won't be confused with what you're saying. Professor I take it that you are also including under your approved system the fact that innocent people may not be acquitted by hung juries too it is never right. Yes but I think that the record and the and the facts have shown that the the the hung jury in favor of acquittal is really a minority compared to those in favor of conviction. It is 10 percent as percent the minority. Gentlemen we interrupt for a second Professor Dash I think both Bobby Seale and the buridan's were hung on a 10 to two for acquittal vote. And those are two rather important. Yes they're important but they're they're important to all of us because of the complexity of the cases.

But they're really a minority compared to their run of criminal cases that go after after putting those defendants through all that they went through. Don't you think that tend to vote should have sprung them free and all of that. No because I think those cases are the very cases that prove the the good of our jury system it was they were complex cases and the jury reacted and reflected the difference of our and you wouldn't stop yelling at them for going to town today. I think that they prove the jury system. The fact that they hung and the fact that they are now I have to interrupt I'm sorry and I'm sorry for taking your question away from him so much and thanks for being with us. Mr. HILL. We've seen the workings of the jury system can be revealed through some him with some research and charts. It can be observed also in the courtroom where it serves I call now as a witness a man who perhaps knows as much about the workings of the jury system in America as any living American for having been there in court before

juries across this nation and over the world. Mr. Melvin Belov. Yes I underdose must Abella as a trial lawyer. Mr. BELIN. Do you believe in the principle that conviction of crime in this country should occur only upon proof of guilt beyond a reasonable doubt. Yes I think when you cut the jury down either in numbers or when you cut it from unanimity to Atlanta or wherever you're going to stop I think you fool with beyond a reasonable doubt. There are other places to change this rate of conviction and speedy trials you can do it by getting a better voir dire if you're concerned about Googs going on the jury. You can do a lot of other things but don't fool with beyond a reasonable doubt and the unanimity of

juries. I think when you do that you set aside one of our most sacred principles in this country. We can't depend on Congress or the White House anymore. It is suggested Judd. First time I've ever been called Judge Mr. Bell happens here. It has been suggested that extra judicial interpreted as corrupt juror was maybe hanging juries or tying them up. What's your experience been about that. I've never seen an artichoke in the jury box and I don't mean to be facetious about that but these are stories about corrupt jurors. I don't think that you get them because you don't know when you've got a corrupt any more than you know when you've got a perfect crime. But if you would increase the challenges and give more time for voir dire the examining of jurors before you put them in the box then I think you would abate the fallacious argument that you get corrupt jurors on there. I don't think that should do.

All right so if it does exist in one or two cases do you think the answer ought to be that America should change its system to accommodate the corrupt general or should we find him and arrest him and try him and convicted because you got a bad congressman or a bad senator. I wouldn't do away with the Congress right now. It has been suggested here that these kooks populate our jury room is in jury box. I think you've got to define what kook is a kook is the obstinate man who believes that the state hasn't proved beyond a reasonable doubt. I want that guy to safeguard my son's liberty if God forbid my son were up on a criminal charge. Now that's a kind of a man that's a kook. Then I think we need them on our juries. Mr. Bell around this country what sort of people have you seen serving on juries juries are microcosms of cities they're obstinant They're people with high principles. The famous film you might have seen of justice where the camera goes out in the field and puts

a butcher a baker a man that you wouldn't depend upon any one individually but yet when they get together the collective verdict of the 12 is much better than any individual verdict would be. And I think that the people that you get on your juries are the people that live in this land. And in order to get everybody's vote you've got to have unanimity of the verdict. Oh my gracious but passionate last friend here Ivan suddenly did and I suggested that we ought to hurry and get more people convicted quicker and put to jail what sort of people have you seen as defendants. And frankly I don't like to manage that but I think that you do have a hue and cry because of crime in the streets that we ought to speed up our trial. Why don't we speed up our trials by having more pro-tem judges why don't we speed up our trials by building more courthouses. The little courthouse that you see out in the country that was sufficient in 1910 and 1920 with the population of that

time is now made do for the population that is three times that. And gentlemen I'm to say you want to cut down trial by jury was all I had at my point there. Give you head will give you a chance to wind up on Mr. Summers and I go ahead. I take it that you like Professor Dash won't even come down one juror. No I don't want to come down one juror because nobody not even one may be a black man in the community that sees things according to him and it may be a black man who is on trial and I think he's got the right what if he's a white man just like you. The same sort of thing. Well it doesn't make any difference what his race is does it. Well he may have some peculiar feeling about that case if that makes him as I say a kook again and makes the maps. I want him on there. What if what if he's in Congress do the same way. Well well they're entirely different situations aren't they. Mr. Bell I am not comparing Congress with a jury are you. No I can't. Because in Congress you don't have unanimity and in Congress there there is.

My brother said Monday to correct this mistake they made on Friday that when a jury goes out it cannot correct its mistake. I want to see if I understand you about a point you made. You said that if we accept tonight's proposal. It no longer will be that the prosecution will have to prove its case beyond a reasonable doubt. Is that what you believe you will have to prove at last and beyond or is less than beyond reasonable doubt and that if that were true yes that's what I mean. All right. And if that were true then if the jury hung 10 to 2 or 11 to 1 in favor of acquittal with only one juror who wanted to convict then I take it that that person should be acquitted. Under your theory you have a thing you don't get perfection in a jury. Well I just want to see you get you do get a lessening in the quantum of proof. If you take the jury unit and when you start in you say you and you out of the 12 your votes not going to count. That's arbitrary but their vote is going to count. No not if you have a 10 verdict. Well that's because you're starting on the premise that it should be unanimous but I'm saying to you that it has nothing to do with the

burden of proof does it. Because if that were true. Well if that was true and complete. Wait I just want to ask you the question then you can answer it. I just I just want to get you to agree with me which I think you do know is that juries certainly. No matter what I say you won't agree with me. I'm sure I can say something that if you say that unanimous juries are absolutely necessary to the integrity of the jury system I'll agree with. Think that we're getting anywhere it is submerged. How about that. I agree with that too. I just I just want to I just want to make it clear that you still are in favor of a system where the majority of the jury even if it's 11 out of 12 who want to acquit the defendant you won't let them do it. No. And that's consistent with your theory of how a jury should work is and you call that passionate do you call it when passionate and not the passionate man. Well Mr. HILL. I think that's compassion that's not passionate. I think that a jury is not perfect any

more than a city is perfect. I don't think that the 12 people that go in there are perfect automatons. I don't want a jury system that's going to be based on computer. We do the very best when we go into the jury box. If you get 10 to two for acquittal there are two people that think there is some guilt they're trying to expand the law in layers. Eight years ago in Oregon an innocent man was convicted. You know how many jurors voted to convict him. And I'm familiar with the case 12 out of 12. That's the only case in Oregon in which an innocent man has been convicted that we know about what we know about torture torture. Did a study convicting the innocent that he showed that never did an innocent man go to the gallows. Give me what I would have fell through the gallows couldn't be an example to come back and testify that they were innocent. You don't have any. You don't have any evidence. Well I'm not going to let you ask and I never got any but he went through the gallows to get out of the way. One brief question please Mr. Hill if 12 men unanimously

convicted erroneously in Oregon do you think it's any time to reduce the standards. I don't think it has anything to do with it. I think what you don't like what you ought to do because you've got an imperfection in one jury I think you ought to go about all these other things to cut crime down in the street you ought to do something in our prisons you ought to do something with the methods of trial get us better courthouse but don't start at the very basic and trammel the quantum of proof to have cut it down from beyond a reasonable doubt to less than that. You have to take the whole jury in unanimity. And do you have a beyond a reasonable doubt when you have 10. You can't have beyond a reply. Let me ask you this. Is this a number or unanimity that bothers you supposing a state held 15 of the same thing. I mean I ask you that supposing a state had 15 member juries and only required 12 to convict. Would that bother you. No it wouldn't because I've never thought of it. I don't think that you have much of a problem there because what we want is 12 they work. And I thought about it many many times I stood up in front of that 11 and 10 would

bother me six when I tried in a civil case I go with sex all the time because I can prove it much easier. 12 with 15 15 is more of a crowd. And I wouldn't like to see a jury of 15 people and you wouldn't take 2:48 12 or 15. Yes. Well if you take 12 or 15 then you're just saying arbitrarily three of those people that you've picked there. They may be blacks in that jury. And if the three of them said no then you wouldn't have beyond a reasonable doubt over the whole jury. Let's give the surge a chance one more Mr. Bell. Ninety nine out of 100 would you be happy with that. Ninety nine out of 100. What you can't relate abstract to a jury system. Well I hope I do but I don't think you do. And I am satisfied that 99 out of 100 what are you talking about Ivory soap or juries. Seriously if you think we're talking about ivory self then I think you're on the wrong show. Gentlemen on that on that note gentlemen I'm going to have to interrupt. Just to die. Thank you very much for being with us. Mr. HILL.

Mr. HILL. You present your closing argument. Thank you. I believe the evidence that has shown that what they want us to do is throw out one of the time honored and treasured guarantees of freedom in this country and to dilute the jury in the jury. What would we get in exchange. Not even a mess of pottage. We get on with the prospect of a few hundred more easy convictions with added risk that they will include some people. What does this cost. It cost us deliberation in the jury room when the necessary majority have voted. They quit deliberating and returned the verdict. It cost us the valuable minority viewpoint which can be ignored by the proposed majority. It cost us the grant of more and more new trials as appellate judges critically scrutinize non unanimous convictions and send them back for the trial. It costs us the very concept of a conviction beyond a reasonable doubt unless the minority be declared to be people without reason.

My friend may complain of unseemly delay in getting the accused tried and jailed. He may hold high that hackneyed phrase. Justice delayed is justice denied. Which may be true but I submit that the cure for it is not prompt injustice. Thank you very much for your. Closing. Argument. What you've heard tonight. I think it is a proposal based on reason and common sense. We want to make sure that our jury system works fairly and efficiently and to do that. We want to improve it by removing the wasteful and senseless requirement of unanimity so that one juror won't have a veto power which frustrates the entire process. Our opponents won't really listen to our appeal to reason and common sense. In fact they won't budge one inch. Except. For Mr. Bell who I think

admitted that he would take 12 to 3. In so doing I think that. The opponents want to perpetuate a system that produces 6000 hung juries a year. And as a result causes a great waste of our resources and a system that is really based on a historical accident. They ignore the fact that less than unanimous juries work successfully in many countries and in several states. And they conjured for you a specter of horrible consequences without any evidence to support it. Trying to make you believe that unanimous juries and democracy go hand in hand when in fact the unanimous jury contradicts democratic principles and produces the tyranny of the lone juror. Tonight's proposal has been accepted by the American Law Institute by the American Bar Association and by the National Association of Attorneys General. And it's been deemed constitutional by the Supreme Court of the United States. If we're genuinely interested in maximizing fairness for

everyone then every state should have less than unanimous jury verdicts. Thank you gentlemen. We've now reached the point in the evening when we ask you to make your choice and to tell us how you feel on this issue. All of you here in the Georgetown University Law Center have been given ballots we hope you'll fill them out indicating whether you believe that less than unanimous jury verdicts ought to be permitted in criminal cases. And please leave them in the ballot boxes and you'll find at the rear of the hall now for those of you at home it's time for you also to get in on the act and to send us your feelings on tonight's question send your vote to us on a letter or a postcard and send it to our address at the advocate Spark's 1972 Boston 21:30 for what you think is important now that the Supreme Court has given the green light to less than unanimous jury verdicts in state courts. Efforts will undoubtedly be made by many state legislatures to follow the lead of Oregon and Louisiana.

Your legislature maybe one of them. Would justice be better served if juries were not required to be unanimous. What do you think. Write us and we'll be reporting the results in the weeks ahead. We'll be sending those totals to governors to state legislators and to others concerned with this issue. So remember that address again the Advocate's box. 1972 Boston 020 134. And now with thanks to our very able advocates and to our very able and lively witnesses and to you our audience. We conclude tonight's debate. We wish to thank the Georgetown University East corporation making this drug. And. The advocates as a program takes no position on the issue debated tonight. Our

job is to help you understand both sides more clearly. This program was recorded and made possible by a grant from the Corporation for Public Broadcasting and the Ford Foundation and originally broadcast on November 9th 1972. The