[Congressional Record Volume 145, Number 8 (Tuesday, January 19, 1999)]
[Senate]
[Pages S433-S434]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. THURMOND:
  S. 32. A bill to eliminate a requirement for a unanimous verdict in 
criminal trials in Federal courts; to the Committee on the Judiciary.


  legislation to allow federal criminal conviction on a 10-2 jury vote

  Mr. THURMOND. Mr. President, I rise today to introduce legislation to 
allow juries to convict criminals on a 10-2 jury vote rather than a 
unanimous vote.
  It is my belief that this change to the Federal Rules of Criminal 
Procedure will bring about increased efficiency and finality in our 
Nation's Federal court system while maintaining the integrity of the 
pursuit of justice.
  This legislation is consistent with the Supreme Court ruling 
concerning unanimity injury verdicts, specifically in Apodaca v. Oregon 
[406 U.S. 404 (1972)]. 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 law that 
permitted what I am proposing--a 10-2 conviction in criminal 
prosecutions.
  Mr. President, clearly there is no constitutional mandate for the 
current requirement under the Federal Rules 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 towards the accused with many, 
many safeguards in place to ensure that the defendant receives a fair 
trial.
  Its interesting that a unanimity requirement was considered by our 
Founding Fathers as part of the Sixth Amendment to the Constitution, 
but it was rejected. 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 a ``requisite of unanimity for 
conviction.'' The language eventually adopted by the Congress and the 
States in the Sixth Amendment provides ``the right to a speedy and 
public trial, by an impartial jury,'' but does not specify any 
requirement on conviction. This was a wise decision.
  It is clear that ``trial by jury in criminal cases is fundamental to 
the American scheme of justice,'' as the Supreme Court has stated. 
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. As the Supreme Court has noted, a jury can 
responsibly perform this function if allowed to decide the case by a 
margin that is less than unanimous.
  This change for jury verdicts in the Federal courts will reduce the 
likelihood of a single juror corrupting an otherwise thoughtful and 
reasonable deliberation of the evidence. It is not easy to adequately 
screen a juror for potential bias before they are selected to serve on 
a jury. This cannot be done with absolute certainty. We should work to 
prevent one such juror from having the power to prevent justice from 
being served.
  One juror should not have the power to allow a criminal to go free in 
the face of considerable opposition from his peers on the jury. Even if 
a defendant is tried again after one or two jurors hold out against 
conviction, a new trial is very costly and time-consuming. Most 
importantly, a new trial substantially delays justice for the victims 
and society.
  It is important to note that this new rule could also work to the 
advantage of someone on trial. Currently, if there is a hung jury, a 
prosecutor has the

[[Page S434]]

power to retry a defendant. This is true even if only one juror 
believed the defendant was guilty. Under this new rule, if at least ten 
jurors concluded that the defendant was not guilty, he would be 
acquitted and could not be forced to endure a new trial. This rule has 
the potential to benefit either side as it brings finality to a 
criminal case.
  In other words, 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 either 
instance, 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.
  Moreover, I believe the American people will strongly support this 
reform to allow a 10-2 decision. This is one way the Congress can help 
fight crime and promote criminal justice.
  Mr. President, I hope the Congress will support this important 
proposal. I ask unanimous consent that the bill be printed in its 
entirety in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 32

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

     SECTION 1. AMENDMENT OF RULE 31 OF THE FEDERAL RULES OF 
                   CRIMINAL PROCEDURES.

       (a) In General.--Rule 31(a) of the Federal Rules of 
     Criminal Procedure is amended by striking ``unanimous'' and 
     inserting ``by five-sixths of the jury''.
       (b) Applicability.--The amendment made by subsection (a) 
     shall apply to cases pending or commenced on or after the 
     date of enactment of this Act.
                                 ______