Sunday, July 21, 2013

Time to talk about unanimity? Even in Kansas?

I was reviewing our recent blog post--prompted by Sentencing Law and Policy's suggestion that Descamps v. U.S., No. 11-9540 (U.S. June 20, 2013) may be one of the most important criminal procedure cases of the last term--when I noted a little part that I had overlooked before.  When discussing the Sixth Amendment implications of the modified categorical approach, the SCOTUS described the Jury Trial Clause as follows :
The Sixth Amendment contemplates that a jury—not a sentencing court—will find such facts, unanimously and beyond a reasonable doubt.  (emphasis added)
This quotation does not qualify the unanimity requirement to federal cases (although Descamps is obviously a federal case and any unanimity discussion is dicta).

Non-unanimous verdicts in state criminal cases have been upheld by the SCOTUS, although the rationale has never garnered a majority of the Court.  But, as commentators like Eugene Volokh have noted  (here), the basis for allowing non-unanimous jury verdicts in state court (partial incorporation) is pretty shaky--especially after the McDonald case.  So litigators have been trying to get unanimity cases before the SCOTUS, as recently as this last term.  SCOTUSblog named Miller v. Louisiana,  No. 12-162, raising that very issue, as a petition of the day (here).  The cert petition in Miller was denied on February 19, 2013, but this language in Descamps should embolden Jury Trial Clause litigators.

So what does this have to do with Kansas you ask?  After all, we're not Louisiana or Oregon (states that allow non-unanimous verdicts).  Because we have a statutory right to a unanimous verdict, these issues don't come up, right?

Actually, a very recent case at the KSC turned on whether there is a federal constitutional right to a unanimous verdict.  In State v. Cheffen, No. 105,384 (June 21, 2013), the KSC held that it would not reach a claim regarding failure to poll a jury for the first time on appeal because there is no federal right to a unanimous verdict:
Cheffen instead claims we should consider his jury polling challenge for the first time on appeal because it involves a fundamental right to a unanimous jury verdict. This exception, however, is inapplicable. The right to a unanimous jury verdict is not constitutional—it is statutory.
Similarly, whether the Sixth Amendment imposes a unanimity requirement on states is also important when dealing with requested or unrequested unanimity instructions in multiple acts cases with regard to the harmless error test that might be applied.

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