Booting unanimity off the jury

by Richard J. Chrystie

Since 1967,when I began working in the California criminal courts, I have come up with two suggestions for jury reform: eliminate jury trials for misdemeanor cases and allow non-unanimous verdicts in criminal cases.

Both of these would cost virtually nothing to implement, and the benefits would begin immediately.

Without misdemeanor offenses, citizens would not be called as often to serve on juries and therefore would be more willing to serve. They also would know they would be serving on a felony case, not a relatively minor offense.

In the area of non-unanimous verdicts, the U.S. Supreme Court has held that such verdicts are lawful under the Constitution. If we adopt 10-2 non-unanimous jury verdicts in California, it would speed up jury selection and greatly reduce the number of hung juries, retrials and compromise verdicts.

Many jurors will tell you that 10 or 11 of them wanted to convict but were forced to settle on a lesser offense rather than arrive at no verdict at all. Often this is because one or two jurors were completely off track, irrational or caught up in some irrelevant issue.

There also will be fewer demands for jury trials by defendants who know there is enough evidence to convict them, but hope that one irrational juror will hang up the case.

In Oregon and Louisiana, where 10-2 verdicts are lawful, hung juries are rare -- usually estimated at no more than 2 percent of the cases tried. This is far less than the 15 percent hung jury rate in most large California counties.The standard of proof is not any less with a non-unanimous verdict. Ten jurors must still be satisfied beyond a reasonable doubt to convict a defendant.

Consider also that in England, from whence our law and system of jury trials was derived, non-unanimous verdicts of 10-2 in criminal cases have been lawful since 1967.

Indeed, the U.S. Supreme Court can affirm a death sentence by a vote of 5-4, and the California Supreme Court can do so by a vote of 4-3.

Society has too many important demands upon its resources and the need for an efficient criminal justice system is too great for us to afford a continued obeisance to the mythology of the unanimous verdict.

Richard J. Chrystie is a deputy district attorney in Los Angeles County.