Herrera v Oregon

-Submitted by David Drumm (Nal), Guest Blogger.

Herrera v Oregon is a pending case before the Supreme Court, where Alonso Herrera, an Oregon man, was convicted by 10-2 jury vote of unauthorized use of a vehicle. At issue is whether the Sixth Amendment, as incorporated against the states by the Fourteenth Amendment, requires a unanimous jury verdict to convict a person of a crime. Also at issue is whether the Bill of Rights, as incorporated against the states by the Fourteenth Amendment, should apply equally to the states as to the federal government, jot-for-jot incorporation. It is long overdue that these issues be resolved.

Sir William Blackstone, in Commentaries on the laws of England, wrote:

[T]he trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law…. [I]t is the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals.

Justice Story, in Commentaries on the Constitution of the United States, wrote “unanimity in the verdict of the jury is indispensable.”

In Apodaca v Oregon and Johnson v Louisiana, heard in 1972, the Court upheld state laws that allow 10-2 verdicts in Oregon and 9-3 verdicts in Louisiana, even though the Justices stated their beliefs that the Sixth Amendment required unanimity. In Burch v Louisiana, the Court found that Louisiana’s law that allowed for 5-1 convictions by a six-person jury violated the Sixth Amendment, incorporated by the Fourteenth Amendment.

In Malloy v Hogan (1964), Justice Brennan wrote the opinion of the Court stating:

The Court thus has rejected the notion that the Fourteenth Amendment applies to the States only a “watered-down, subjective version of the individual guarantees of the Bill of Rights,” Ohio ex rel. Eaton v. Price (dissenting opinion).

If the Court finds non-unanimous verdicts unconstitutional, there’s going to be a lot of retrials in Oregon. That’s what they get for pussy-footing around this issue until now.

H/T: The Volokh Conspiracy, Exploring Constitutional Law, Malloy v Hogan, petition for cert (pdf).

16 thoughts on “Herrera v Oregon”

  1. BBB, Blouise,

    I agree. And to use Buckeye’s line from another thread (and I agree with his original statement), let’s see more of these folks in orange jumpsuits from here on out…

    (BBB — I tried to watch the 48 Hours segment but, for personal reasons, related to a friend’s murder decades ago, I couldn’t watch it… I looked at the other link. Could you quickly summarize it?)

  2. “Theft is theft (be it liberty or property), and when it is done by police officers, prosecutors, or judges, it is deserving of severe penalties.” (BBB)


    With all the background provided by anon nurse and the suggestions as to motivation provided by Mike Spindell and others, the quote above is, in my opinion, good old fashioned common sense and supports Justice. Theft is theft.

  3. “It’s my guess that it isn’t so much a case of lying, but of tunnel vision that blocks out the big picture.” -Mike Spindell



    In my opinion, it’s a combination of the two — I think that there’s a lot of lying, as well as the whole “tunnel vision” aspect, as you’ve accurately described it.

    I’m somewhat familiar with a case in central NY involving an investigator who planted evidence in a case and, subsequently lied about it on the stand. The truth about his lies was later revealed when he applied for a job with the CIA and then, during one of his interviews, revealed what he had done, thinking that someone would be impressed and hire him. Thankfully, his plan backfired.



    A police officer can plant and/or fabricate evidence, as came to light in the Troop C scandal. In April 1993, New York State Police Lt. Craig D. Harvey admitted he and another trooper lifted fingerprints from items the suspect, John Spencer, touched while in Troop C headquarters and attached them to evidence cards. Harvey later claimed he pulled the fingerprints from the murder scene. Spencer was wrongfully convicted and sentenced to fifty years to life in prison.

    Shirley Kinge, who admitted using a stolen credit card, was also victimized by Troopers David L. Harding and Robert M. Lishansky of Troop C. They admitted they took Kinge’s fingerprints from her work place, but later claimed they found the prints on gasoline cans. She was wrongfully convicted of burglary and arson and sentenced to 17-44 years in prison. She served two and a half years before the court learned the evidence against her was fabricated by lying troopers.

    Harvey, a sixteen-year veteran of the force, headed the identification unit. He pled guilty on July 29, 1993, to fabricating evidence in three cases and was sentenced to 2½-7 years in prison. On December 16, 1992, Harding, a seven-year veteran, was sentenced to 4-12 years in prison and fined $20,000 for fabricating evidence in four documented cases. On June 10, 1993, Lishansky, an eleven-year veteran, was sentenced to 6-18 years for fabricating evidence in twenty-one cases.
    Police officers can coerce witnesses to lie in exchange for false testimony, as was revealed in the Jabbar Collins case in Brooklyn. Collins served sixteen years in prison before he was freed. Fernando Bermudez was convicted based on false, police-coerced testimony. He served eighteen years before a judge declared he was innocent and had been framed.

    Accurate verdicts depend on the truth. Police lying frustrates the chief purpose of every trial, to reveal the truth.

    (end of excerpt)

  4. Frank,
    You and I agree for the most part about the police. I would only add that it isn’t just that many are liars, but that due to training and learning from older peers, they stick with their initial presumptions about whose guilty. Their investigations become focussed on those presumptions to the exclusion of other salient facts. In this way many convince themselves of a defendant’s guilt even though other evidence might exonerate. It’s my guess that it isn’t so much a case of lying, but of tunnel vision that blocks out the big picture.

  5. OS – Thanks – interesting read.
    BBB – if you ever figure out a way to prevent people from being political creatures please let us know. I used to believe that, despite any other flaws, the USSC was staffed by people that put the law and this country above politics – Bush v. Gore let me know I was a fool to believe that.
    Mike – for as often as cops have been caught fudging the truth I’m pretty sure 90% of the jury automatically sides with the blue in a he said/she said situation. They have proven repeatedly that they do not deserve this privilege & a lot of the blame falls on the cops themselves for protecting the known liars & crooks in their midst.
    Blouise – Yup

  6. Our justice system as it is is loaded against the defendant. Juries tend to give great credence to the pronouncements of authority such as the police and the prosecution. This of course gives lie to the myth promulgated by certain conservates, LEO’s and prosecutors that the balance has been tipped to the defendant, when the reality is the opposite.

    The history of the US has amply proven that when “State Rights” prevail over federal oversight, the constitution suffers and the Bill of Rights is ignored. Requiring unanimity in jury verdicts, while imperfect, at least gives some protection to the defendasnt. It’s my opinion that in the vast majority of instnces where there is a wide split in a decision by a jury, the jury is in favor of conviction.

  7. BBB,
    No problem! This was a good case to ponder that Nal provided us. I have to agree that I believe in the unanimous jury, but I am not sure that the Supremes will actually find for it against Oregon.

  8. My first comment should have been to Nal, not rafflaw. Sorry.

    My first mistake of the new year. Only 29,283 more to go. 🙂

  9. I know this is a bit off-topic, but I would like to figure out a way to prevent prosecutors from being political creatures. Lying to win has been a tool of the politician for too many years. Now we see prosecutors doing the same thing, with total immunity. That has to end. If a prosecutor is found to have knowingly made false statements of material fact to the tribunal, there must be severe penalties. Anything else is quite literally letting them get away with murder (death penalty cases).

  10. rafflaw,

    Good food for thought!

    This is one of those situations in which I find myself to be ‘on the fence’. The strongest argument in favor of requiring unanimous juries is history. I’m not sure if that is enough to get SCOTUS to interfere with the states (even though only a few states permit it).

    There is also the benefit of having a non-unanimous jury being able to arrive at a not guilty verdict, instead of a mistrial.

  11. Start with the proposition that in a civil matter the Sct has stated that unanimity is not required in a civil matter…..then bastardize the system….alla….you no longer have to have unanimity….

    The seat-belt is a pet peeve of mine…

  12. Frank: Here is the information you were looking for. This is from rhe Bureau of Justice Statistics’ Survey of State Court Organizations. This is a PDF file, so it may be a bit slow to load. If you scroll down to Table 42 on page 243, you will find detailed information on state court jury requirements.


  13. Oh! I had no idea a person could be convicted on a non-unanimous vote. The couple of times I sat on a criminal jury we were told it had to be unanimous.

    Anyone know how many (and which) states don’t require unanimity and what the rules are? Simple majority, 2/3s?

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