406 U.S. 404 (1972), argued 1 Mar. 1971, reargued 10 Jan. 1972, decided 22 May 1972 by vote of 5 to 4; White for the plurality, Blackmun concurring, Powell concurring in the judgment, Douglas, Brennan, Stewart, and Marshall in dissent.
Until 1970 it was assumed that juries consisted of twelve members and that unanimous votes were required. Williams v. Florida (1970), however, permitted state juries of fewer than twelve members. Apodaca, a companion case to Johnson v. Louisiana (1972), held that the Sixth Amendment jury trial guarantee, applied to the states by the Fourteenth Amendment, does not require a unanimous jury verdict in noncapital state criminal cases.
The plurality was unable to decide whether Congress, when it passed the Sixth Amendment in 1789, had intended to freeze the size of the jury at twelve. On balance it decided that the right to trial by jury was primarily designed to protect against corrupt or over-zealous prosecutors or judges and therefore “perceive[d] no difference between juries required to act unanimously and those permitted to convict or acquit by votes of 10–2 or 11–1” (p. 411). Johnson permitted conviction by a 9-to-3 vote.
Justice Lewis Powell, whose concurrence provided the controlling vote, believed that the Sixth Amendment did require unanimity but that the Fourteenth Amendment did not apply all elements of the Sixth Amendment to the states: the states could employ nonunanimous juries, but the federal courts could not. The dissenters argued that a nonunanimous verdict in either state or federal courts was inconsistent with the constitutional requirement that a criminal jury's decision be “beyond a reasonable doubt.” Thus, while separate majorities held that the Sixth Amendment required unanimous jury verdicts and that the Fourteenth Amendment incorporated the Sixth in its entirety, the net result was that the states may employ nonunanimous juries. Apodaca and Johnson still govern, but few states have adopted the jury nonunanimity rule in criminal cases. The Court subsequently raised doubts about the statistied assumptions on which Apodaca was based in Ballew v. Georgia (1978).
Stephen E. Gottlieb