Apodaca v. Oregon
Decided on May 22, 1972; 406 US 404

Criminal defendants believe they are entitled to unanimous jury verdict


A. Issues Discussed: Criminal Justice (Procedure), Sixth Amendment, Fourteenth Amendment, Incorporation Doctrine  

B. Legal Question Presented: 

In a criminal case in state court, does a defendant have a constitutional right to a unanimous jury verdict, or may state juries convict a defendant by less than unanimity?


A. Background:

Oregon law permitted less-than-unanimous jury verdicts in noncapital cases.  Petitioners, Robert Apodaca, Henry Morgan Cooper, Jr. and James Arnold Madden were convicted respectively of assault with a deadly weapon, burglary in a dwelling, and grand larceny before separate Oregon juries, all of which returned less-than-unanimous verdicts. The vote in the cases of Apodaca and Madden was 11-1, while the vote in the case of Cooper was 10-2, the minimum requisite vote under Oregon law for sustaining a conviction.

Petioners appealed to the Oregon Court of Appeals and the court affirmed their convictions. The Supreme Court of Oregon denied to review their cases.

Thereafter, petitioners sought review in the US Supreme Court arguing that conviction of crime by a less-than-unanimous jury violated the right to trial by jury in criminal cases specified by the Sixth Amendment and made applicable to the States by the Fourteenth Amendment. The US Supreme Court granted certiorari to consider this claim.

B. Counsel of Record:
Opposing Side
Richard B. Sobol argued the cause and filed briefs for petitioners. Jacob B. Tanzer, Solicitor General of Oregon, argued the cause for respondent.

With him on the brief were Lee Johnson, Attorney General and Thomas H. Denney, Assistant Attorney General.

C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Norman Dorsen, Melvin L. Wulf and Paul R. Meyer filed a brief for the American Civil Liberties Union, as amicus curiae, urging reversal.

Briefs of amici curiae urging reversal were also filed by James J. Doherty and Marshall J. Hartman for the National Legal Aid and Defender Association.
No amici curiae briefs were filed on behalf of respondent.


"Petitioners also cite quite accurately a long line of decisions of this Court upholding the principle that the Fourteenth Amendment requires jury panels to reflect a cross section of the community. They then contend that unanimity is a necessary precondition for effective application of the cross-section requirement, [406 U.S. 404, 413]   because a rule permitting less than unanimous verdicts will make it possible for convictions to occur without the acquiescence of minority elements within the community.

There are two flaws in this argument. One is petitioners' assumption that every distinct voice in the community has a right to be represented on every jury and a right to prevent conviction of a defendant in any case. All that the Constitution forbids, however, is systematic exclusion of identifiable segments of the community from jury panels and from the juries ultimately drawn from those panels; a defendant may not, for example, challenge the makeup of a jury merely because no members of his race are on the jury, but must prove that his race has been systematically excluded. No group, in short, has the right to block convictions; it has only the right to participate in the overall legal processes by which criminal guilt and innocence are determined.

We also cannot accept petitioner's second assumption - that minority groups, even when they are represented on a jury, will not adequately represent the viewpoint of those groups simply because they may be outvoted in the final result. They will be present during all deliberations, and their views will be heard. We cannot assume that the majority of the jury will refuse to weigh the evidence and reach a decision upon rational grounds, just as it must now do in order to obtain unanimous verdicts, or that a majority will deprive a man of his liberty on the basis of prejudice when a minority is presenting a reasonable argument in favor of acquittal. We simply find no proof for the notion that a majority will disregard its instructions and cast its votes for guilt or innocence based on prejudice rather than the evidence.

We accordingly affirm the judgment of the Court of Appeals of Oregon."

Held: The Judgment of Court of Appeals is affirmed.

Justice Vote: 4 Pro vs. 5 Con

  • White, B. Con (Wrote majority opinion)
  • Burger, W. Con (Joined majority opinion)
  • Blackmun, H. Con (Wrote concurring opinion)
  • Powell, L. Con (Wrote regular concurrence)
  • Rehnquist, W. Con (Joined majority opinion)
  • Douglas, W. Pro (Wrote dissenting opinion)
  • Stewart, J. Pro (Wrote dissenting opinion)
  • Marshall, T.  Pro (Wrote dissenting opinion, joined multiple dissents)
  • Brennan, W. Pro (Wrote dissenting opinion, joined multiple dissents)


The ACLU filed as amicus curiae urging reversal, the US Supreme Court affirmed the Court of Appeal’s judgment in a 5-4 vote giving the ACLU an apparent loss.