When Democracy Is Not Self-Government: Toward a Defense of the Unanimity Rule for Criminal Juries

In 1972, the Supreme Court sanctioned a departure from a long tradition of common law jury procedure by announcing that criminal juries in state courts need not achieve unanimity to convict. The issue remains contentious. On its face, whether or not unanimity should be required in jury verdicts is a procedural question. In reality, of course, the question implicates substantive policy issues as well.

Concerns about jury decision rules are linked, as many procedural questions are, to concerns about the results that the procedures in question will yield. For example, a system that allowed non-unanimous verdicts would probably have a higher conviction rate than a system in which all verdicts required unanimous agreement. Given the hard line orientation toward crime and the hostility toward the rights of the accused that mark the current political climate, the simple desire to reduce the number of guilty defendants who escape conviction may account for a good deal of opposition to the unanimity requirement.