Scholarship Saturday: A coming requirement for verdict unanimity in America, except in the military

By Isaac Kennen

Scholarship Editor 

The Supreme Court opened its new session by hearing argument in the case of Ramos v. Louisiana (oyez), which presents the question of whether the Due Process Clause of the Fourteenth Amendment requires a state jury to be unanimous in a verdict of guilt.

The Justices’ tenor from the bench suggested that they are inclined to rule criminal verdicts must be unanimous across the Nation. Indeed, the mood of the Justices was perhaps best illustrated by Justice Kavanaugh’s prodding of government counsel during their rebuttal presentation:

It seems to me there are two practical arguments for overruling Apodaca[,] [which permits non-unanimous criminal verdicts in State jurisdictions]. One is, as Justice Gorsuch says, there are defendants who have been convicted and sentenced to life, 10/2 or 11/1, who otherwise would not have been convicted. So that seems like a serious issue for us to think about in terms of overruling.

And, the second is that the rule in question here is rooted in a -- in racism, you know, rooted in a desire, apparently, to diminish the voices of black jurors in the late 1890s. [. . .] 

So do either of those two things -- or I guess I should say why aren’t those two things enough to overrule[?] [. . .] [W]hy aren’t those two things enough, again, unfairness to defendants and rooted in racism?

While it may come to pass that the Supreme Court’s decision in Ramos will banish nonunanimous verdicts from American courtrooms, the practice will remain in one jurisdiction – the military. (That is, except for the most serious cases, because, even in the military, Articles 25a and 52 require the unanimous concurrence of twelve members to convict a person of a capital offense. When it really matters, even military law recognizes that unanimous verdicts are more reliable.)

Whatever the Supreme Court says in Ramos will be irrelevant to the military jurisdiction because that case speaks only to the Sixth Amendment right to a trial by jury. The Supreme Court has long held that, although the Constitution may not say it, the Founders never meant for the Sixth Amendment to apply to military trials:

[“Cases arising in the land or naval forces"] are expressly excepted from the Fifth Amendment, and are deemed excepted by implication from the Sixth.

Ex parte Quirin, 317 US 1, 40 (1942) (oyez)

Therefore, whatever standards might apply under the Sixth Amendment to a body called a “jury,” it is of no consequence to a court-martial. A court-martial has no jury.

Given the inapplicability (by implication) of the Sixth Amendment to military trials, it is tempting to wonder whether an argument could be made in favor of a requirement of unanimity under the Fifth Amendment’s due process clause. After all, the method by which Ramos would impose a requirement of unanimity on the States is via another due process clause – that of the Fourteenth Amendment.

But, that argument – that Sixth Amendment jury standards can be shoehorned into military practice via the Fifth Amendment – has been flatly rejected by military courts. For example, in United States v. Spear, ACM 38537, at *5 (A.F. Ct. Crim. App. 2015) (internal citations omitted), the Air Force Court of Criminal Appeals reasoned:

Judicial deference is “at its apogee” when an appellant is challenging the authority of Congress to govern military affairs. It is the appellant’s heavy burden to demonstrate that Congress’ determinations about panel size and unanimity should not be followed. He must show the factors weighing in favor of his interest are so “extraordinarily weighty” that they overcome the balance struck by Congress in making these determinations.

That precedent ensures that, whatever the Supreme Court may say in Ramos, a military person is not due any more process under the Fifth Amendment than Congress has chosen to give them. A military accused is not afforded a jury’s protection, and Ramos won’t change that.

But the accused is not the only party left without protection by the lack of a jury. The government’s convictions in trials by court-martial lack the benefit of a jury’s legitimacy. See Professor Shari Diamond, Podcast—Jury Process: How Juries Bring Legitimacy to Legal Proceedings, Pritzker School of Law, Northwestern University (Jan 16, 2019).

Originally published on October 19, 2019 on