If one or more jurors, by contrast, think the defendant might be innocent, then their uncertainty (or worse, their belief in his innocence) would seem to increase the odds of convicting and incarcerating an innocent person. An advantage of demanding unanimity to convict is that if the entire group is convinced beyond a reasonable doubt that the defendant is guilty, that would appear to make it more likely that the defendant really is guilty. Oregon, said that federal convictions require a unanimous jury, the recent decision in Ramos extended that ruling to state criminal cases. The Supreme Court recently said that convictions require a unanimous jury, whether in federal or state court. In this column, I will consider the policy question of whether it makes sense to do as at least forty-nine states now do and demand a unanimous jury before acquitting a defendant of a crime, requiring that the judge declare a mistrial if the votes fall short of unanimity for an acquittal. At the same time, though, there appears to be no reason to think there is a right to a less-than-unanimous jury for an acquittal. No defendant would complain that it is too easy to acquit him and that the law should require additional acquittal votes before allowing a finding of not guilty. But making it more difficult to acquit is no express part of any constitutional requirement and could, if taken to an extreme, violate the rights of an accused. Making it harder to convict is a standard part of constitutional criminal procedure doctrine, developed to ensure that innocent people avoid incarceration.

The Constitution, of course, speaks only to what it takes to convict. That is, those that demand unanimity to convict (with the possible exception of post- Ramos Oregon) have also required unanimity to acquit. As it happens, virtually all of the states appear to have symmetrical conviction/acquittal vote requirements. Louisiana that the Sixth and Fourteenth Amendments require jury unanimity to convict a defendant of a serious crime.

Who voted not guilty