On the fourth page of Gorsuch's opinion he summarizes the basic argument: "Wherever we might look to determine what the term 'trial by an impartial jury trial' meant at the time of the Sixth Amendment's adoption--whether it’s the common law, state practices in the founding era, or opinions and treatises written soon afterward--the answer is unmistakable. A jury must reach a unanimous verdict in order to convict."
I think your observation is correct--the logic of Williams v. Florida contradicts the logic of this new opinion. Before Williams v. Florida, and as that opinion honestly summarizes, 12 members was always required, solely based on historical practice. So Williams opposed the fundamental reasoning of historical precedent and overturned actual Supreme Court precedent; it looked to the fundamental purpose of the jury trial and whether the size was consistent with that purpose. For Ramos (or at least Gorsuch), consistent historical practice is the most important and even dispositive evidence of how a jury verdict must be composed, regardless of whether it was accidental rather than deliberate, and regardless of whether a non-unanimous verdict achieves the purpose; it seems to return to the pre-Williams reasoning. To the extent purpose mattered, it was the purpose of the deviations from unanimity, and that purpose was preserving white supremacy.
A second way to look at it would be to consider that the accused has presumptiom of innocence,therefore the juror's purpose is to remove that presumption. If there is no unanimity then you're saying it is better to punish the guilty even if some innocents get punished in the process. If jurors represent society then one juror's opinion in a 10 person jury represents 10% of the population.
The English common law, which we inherited our own traditions from and much of which is still applicable today, is less a “law” in the sense of a set of decrees from a King or statutes passed by a parliamentary body and more a long line of traditions and community standards that change slightly over time according to a few principles, with the facts and circumstances of the time used to inform the judgement and sentencing.
Without a legislative body, you could go on evolving the traditions over time to cover any number of new and unique circumstances simply by using the existing body of law as a guideline.
So why 12 Jurors and why must they be unanimous? Because it is tradition, and the principle of stare decisis has kept it that way for a very long time. Can traditions change? Yes, but stare decisis makes it unlikely that any sort of arbitrary changes will be made and upheld. Think of it as the legal equivalent of inertia. The law stays the same given the same facts and circumstances unless changed by an outside force, usually a statute in modern democracies with common law legal systems.
The upshot of all of this is to make the practice of law and process of legal proceedings more predictable and arbitration less arbitrary if you’ve done your homework and can tie your case to a previous case, and it doesn’t even necessarily have to be a case from the same jurisdiction if it’s from the same legal tradition and not incompatible with the existing body of law in the jurisdiction the case is within. In contrast, whenever the legislature passes a new Bill and it’s signed into law, you have to study how this will affect new cases going forward rather than simply being able to rely on past precedent. This allows more instantaneous changes to new circumstances but also allows more arbitrary laws to be passed whose effects on people and commerce are not well understood until they are used in litigation.
I don't see why it's the only reasonable option. Consider if we discover that 90% agreement has the exact same false conviction rate, but a much better true conviction rate. That would justify a 90% majority over unanimity.
Maybe unanimity is maybe the only reasonable option when you don't have any other informatoin, but that bar can move once you have a better understanding of the phenomenon.
So while I understand your point, as you stated, we have no other information and as such the numbers we would need to validate it simply don't and won't exist.
Small data set does not necessarily entail it's not statistically significant.
> So while I understand your point, as you stated, we have no other information and as such the numbers we would need to validate it simply don't and won't exist.
"Won't exist" is a pretty strong claim. I posited but one example where the original claim was false, but I can probably come up with dozens of other scenarios where simple majority or unanimity are clearly inferior as the only two options.
>> consistently proven
Your argument does not jive.
My argument does not jive only if you are looking for flaw and determined to find it even if it is only semantics.
Best of luck to you in these trying times.
You can't guarantee a 0% false conviction rate even when requiring unanimity. That's why I said if the false conviction rate was the same, but the true conviction rate was better, clearly that's a better scenario.
That's not how the constitution works - supermajorities (55%, 2/3, 75%) exist in many areas around the world, so while majority and unanimity may be reasonable options, it's arguable that other points may also be reasonable.
There is a quote in the court's opinion that using historical precedent "promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process".
I agree with you, beyond a reasonable doubt should mean all jurors agree.
Estimates of wrongful conviction are between .13%-5% (wikipedia, miscarriage of justice), however the main thing that trial by jury affords is transparency and perception of fairness, since you are convicted by your peers and not some politician with questionable incentives.
Further, the prosecutor has real power that far outweighs the power of the accused. Juries imperfectly provide an offset to that power imbalance.
Otherwise, US States have a lot of flexibility in how they handle non-criminal cases.
The unanimous requirement was changed by the Criminal Justice Act 1967[1] (the relevant section since repealed) for criminal proceedings and the Jury Act 1974[2] for civil proceedings (incorporating criminal proceedings as well).
It's unclear why the number was originally set at 12 – historical research suggests the Danes set this number when they conquered parts of northern England and subsequent Anglo-Saxon monarchs simply continued it. Perhaps 12 was simply an appealing number, or maybe there were political considerations, etc. — it's impossible to know.
As for why Parliament allowed juries to come to a non-unaninmous verdict in specific circumstances, it appears to have been influenced by the Morris Committee Report of 1965 according to Hansard[3].
Additionally (as mentioned in Hansard above), the Scottish legal system have had majority verdicts for juries for a long time prior to the change to England and Wales in 1967 so that may have had some influence on the Government of the day implementing a change to the jury system.
Part of their concern was also down to "jury nobbling" - they felt that if one or two people were "nobbled", it would be fair to allow the remaining 10 to come to a verdict effectively disregarding the nobbled pair (this is also raised in the Hansard report above).
-- [1] http://www.legislation.gov.uk/ukpga/1967/80/section/13/enact...
[2] http://www.legislation.gov.uk/ukpga/1974/23/section/17
[3] https://api.parliament.uk/historic-hansard/commons/1967/apr/...
> 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, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Left me wondering where the right to unanimous juries comes from, since it doesn't seem to be mentioned in the actual amendment, and the article doesn't really tell me. Even SCOTUS blog, unless I missed it, doesn't say.
Thankfully, there's Wikipedia[1]:
> Originally, the Supreme Court held that the Sixth Amendment right to a jury trial indicated a right to "a trial by jury as understood and applied at common law, and includes all the essential elements as they were recognized in this country and England when the Constitution was adopted." Therefore, it was held that juries had to be composed of twelve persons and that verdicts had to be unanimous, as was customary in England.
The next paragraph was a bit odd in light of my question:
> When, under the Fourteenth Amendment, the Supreme Court extended the right to a trial by jury to defendants in state courts, it re-examined some of the standards. It has been held that twelve came to be the number of jurors by "historical accident," and that a jury of six would be sufficient, but anything less would deprive the defendant of a right to trial by jury.
Sure, but what prevents us from calling unanimity a historical accident as well? (Still, personally, I think having to have 12 — or maybe just 6 — people come to agreement on a conviction is for the better. I'd rather let a few guilty people go free than convict an innocent one.)
[1]: https://en.wikipedia.org/wiki/Sixth_Amendment_to_the_United_...