Constitutional Law

A cert petition to watch

Question: is a requirement of unanimous vote to convict part of the Sixth Amendment, and is it incorporated against the States? The petition for cert. is up for vote in the first conference of the Supremes, likely to be announced in a few days.

The Sixth Amendment on its face says nothing about the question, but as the petition notes, it's quite clear that that was the practice, and the understanding, at the framing period. The idea of decision by less than a majority was, I suspect, an innovation of overloaded courts. The issue puts a judicial decisionmaker in a bit of a dilemma. The Sixth calls for juries "in all criminal proceedings," but the practice has been to limit them to major criminal cases, based on framing-era practices. I can't easily see how that can be reconciled with allowing less than unanimous findings, based on the same practices.

Full post as published by Of Arms and the Law on September 29, 2008 (boomark / email).