406 US 356 (1972)
Conference of March 5, 1971
(Notes of Douglas/Brennan)
BURGER: On the jury issue, it is a novel question. Once I
thought that if a two-thirds vote was coupled with a two- or three-hour
interval, it would be different. But I have discarded that
idea. Reasonable doubt is not a valid argument here.
Unanimity was not required at common law--no one really knows its
origins. Majority verdicts were common prior to the
Constitution. Madison's failure to get a unanimous verdict is
relevant, and suggests that the standard was left to the states.
The British system uses majority verdicts. States can do this if
they want to do so. I affirm.
BLACK: I affirm. Since unanimity was not required when the
jury requirement was written into the Constitution, it is not required
now. A majority of one would be too few.
DOUGLAS: I reverse. Unanimous verdict plus reasonable doubt
are my grounds.
BRENNAN: I reverse.
STEWART: Under the Sixth Amendment, I would reverse. Under
the Fourteenth Amendment, I would affirm. If the Sixth Amendment
is incorporated by the Fourteenth and applies across the board, I would
have to reverse. And since Duncan is not retroactive, I am more
confused than ever. I am inclined to reverse on the ground that
the Sixth Amendment requires a unanimous jury.
WHITE: You won't get around the retroactivity issue. Duncan
is not retroactive, so I say that the Sixth Amendment does not apply in
this case. Therefore, I would affirm.
MARSHALL: I affirm. The only qualification of the Sixth
Amendment's guarantee of jury trial is "impartial," not
unanimous. The state can cut the number from twelve to nine, but
not to one. There is no difference between twelve and five or six
BLACKMUN: This is not an easy case. I am bothered by the
"arrest" point. On the jury point, if the Oregon act falls, this
one does, too. Louisiana grades offenses, requiring unanimous
verdicts in death cases. I am inclined to affirm, with a question
of January 14, 1972 [The case was held over to the next term and
reargued. Powell replaced Black and Rehnquist replaced Harlan.]
BURGER: On the main issue it was close. This was not
a well-argued case. The question of unanimity was not settled at
the time of the Constitution. Madison failed to get a requirement
for unanimous verdicts, and this leaves the question to the
states. I affirm.
DOUGLAS: I reverse. The federal rule is unanimity, and the
state rule is the same.
BRENNAN: I reverse.
STEWART: Under our decisions, this is a Fourteenth Amendment
case. This is pre-Duncan, which is not retroactive. The
Fourteenth Amendment required a representative jury for one hundred
years. Those cases are academic if the majority can decide a
case, I reverse.
WHITE: A non-unanimous jury will not have an impact on "beyond a
reasonable doubt." These cases are more symbolic than
actual. I affirm.
MARSHALL: On the first point, I would leave it alone--it is
a can of worms. On the jury issue, I go on to reasonable doubt
and the jury point. Here the jury was out twenty minutes.
It must be a unanimous jury. I reverse.
BLACKMUN: Reasonable doubt does not equate with a unanimous
verdict. I affirm.
POWELL: I would like to reserve my vote for a week. In
Virginia, there is a unanimity rule in the Constitution. I did
not think in Virginia that the Fourteenth Amendment would bar changing
a unanimous verdict, though I am for states experimenting, but I was
against Virginia changing its rule. The federal standard requies
unanimity, but the Fourteenth Amendment does not. I have not been
able to sort out all of my views. I am inclined to go with the
Fortas opinion in Duncan, but I want it to go over.
REHNQUIST: I find nothing in the Fourteenth Amendment that
requires unanimous verdicts. I affirm.