[Congressional Record Volume 141, Number 187 (Monday, November 27, 1995)]
[Senate]
[Page S17533]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. THURMOND (for himself and Mr. Craig):
  S. 1426. A bill to eliminate the requirement for unanimous verdicts 
in Federal court; to the Committee on the Judiciary.


                       federal court legislation

  Mr. THURMOND. Mr. President, I rise today to introduce legislation on 
behalf of myself and Sen. Larry Craig of Idaho to amend the Federal 
rules of criminal and civil procedure to allow convictions on a 10 to 2 
jury vote.
  It is my belief that this change to the Federal rules will bring 
about increased efficiency in our Nation's court system while 
maintaining the integrity of the pursuit of justice.
  This legislation is consistent with the Supreme Court ruling 
concerning unanimity in jury verdicts, specifically in Apodaca v. 
Oregon, 406 U.S. 404. In that case, the Supreme Court ruled that the 
sixth amendment guarantee of a jury trial does not require that the 
jury's vote be unanimous. The Supreme Court affirmed an Oregon Court of 
Appeals decision which upheld a guilty verdict under an Oregon law that 
allowed a 10 to 2 conviction in criminal prosecutions.
  Mr. President, clearly there is not a constitutional mandate for the 
current requirement under the Federal rules of criminal and civil 
procedure of a jury verdict by a unanimous vote. The origins of the 
unanimity rule are not easy to trace, although it may date back to the 
latter half of the 14th century. One theory proffered is that 
defendants had few other rules to ensure a fair trial and a unanimous 
jury vote for conviction compensated for other inadequacies at trial. 
Of course, today the entire trial process is heavily tilted toward the 
accused with many, many safeguards in place to ensure that the 
defendant receives a fair trial.
  Although majority verdicts were permitted during 17th century America 
in South Carolina, North Carolina, Connecticut, and Pennsylvania, 
unanimous verdicts became an accepted part of common-law juries by the 
18th century.
  Mr. President, I found it interesting that the proposed language for 
the sixth amendment, as introduced by James Madison in the House of 
Representatives, provided for trial by jury as well as requisite of 
unanimity for conviction. While this particular proposal was passed by 
the House with little change, it met a significant challenge in the 
Senate and was returned to the House in a different form. Later, a 
conference committee was appointed and reported the language adopted by 
the Congress and the States which reflects the current sixth amendment.
  The earlier House proposal requiring a unanimous jury verdict for 
conviction was considered and not made a part of the sixth amendment. 
For purposes of discussion of this legislation, I will quote the 
pertinent part of the sixth amendment: ``In all criminal prosecutions, 
the accused shall enjoy the right to a speedy and public trial, by an 
impartial jury of the State and district wherein the crime shall have 
been committed.''
  The sixth amendment includes some features of common-law juries. 
However, the Supreme Court has admonished reliance on the easy 
assumption that if a given feature existed in a jury at common law in 
1789, then it was necessarily preserved in the Constitution. So here we 
see the Supreme Court has noted specifically that all features of the 
common-law jury are not mandated by the Constitution.
  Mr. President, there may be a number of inferences to be drawn from 
the deletion of the unanimity for conviction requirement in the 
proposed sixth amendment. One point we cannot escape is the fact that a 
unanimity requirement was considered by our Founding Fathers and 
determined that it should not be constitutionally mandated.
  In Duncan v. Louisiana, 391 U.S. at 156, the Supreme Court stated 
that the purpose of the right to a trial by jury is to prevent 
oppression by the Government by providing a ``safeguard against the 
corrupt or overzealous prosecutor and against the biased or eccentric 
judge.'' Carrying this view further in the subsequent case of Williams 
v. Florida, 399 U.S. 78 (1970), the Supreme Court stated, ``The 
essential feature of a jury obviously lies in the interposition between 
the accused and his accuser of the commonsense judgment of a group of 
laymen'' Williams, supra, at 100.
  Juries are representative of the community and their solemn duty is 
to hear the evidence, deliberate, and decide the case after careful 
review of the facts and the law. Of course, this should be done free of 
intimidation from outside and within the jury. The Supreme Court has 
noted that a jury can responsibly perform its function whether they are 
required to act unanimously or allowed to decide the case on a vote of 
10 to 2.
  There are cases where a requirement of unanimity produced a hung jury 
where had there been a nonunanimous allowance the jury would have voted 
to convict or acquit. Yet, in both instances, the defendant is accorded 
his constitutional right of a judgment by his peers. It is my firm 
belief that this legislation will not undermine the pillars of justice 
or result in the conviction of innocent persons.

  The American people, I believe, will strongly support change in the 
Federal rules of criminal and civil procedure to allow a jury 
conviction by a vote of 10 to 2. This change for jury verdicts in the 
Federal courts will also reduce the likelihood of a single juror 
corrupting an otherwise thoughtful and reasonable deliberation of the 
evidence.
  Mr. President, I hope the Congress will give careful and favorable 
consideration to this proposal and I ask unanimous consent that the 
bill be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1426

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. AMENDMENT OF FEDERAL RULES OF CRIMINAL PROCEDURE.

       Rule 31(a) of the Federal Rules of Criminal Procedure is 
     amended by striking ``unanimous'' and inserting ``by five-
     sixths of the jury''.

     SEC. 2. AMENDMENT OF FEDERAL RULES OF CIVIL PROCEDURE.

       Rule 48 of the Federal Rules of Civil Procedure is 
     amended--
       (1) by inserting after the first sentence the following: 
     ``The verdict shall be by five-sixths of the jury.''; and
       (2) in the last sentence, by striking ``(1) the verdict 
     shall be unanimous and (2)''.

                          ____________________