Must All Jury Verdicts Be Unanimous?

At the end of a trial, both sides rest. The jury goes to the jury room to deliberate. The jurors discuss the evidence and testimony before voting on their verdict. Sometimes, the verdict is unanimous, but there are also non-unanimous verdicts. When are unanimous verdicts required, and when can some jurors disagree? And why does it make a difference? What happens if there is no verdict?

Juries and Verdicts in Criminal Trials

Most of the concern over unanimity in verdicts arises from criminal trials. A long history of case law and Constitutional interpretation establishes that criminal trials must have 12 jurors. In federal court, juries must reach a unanimous verdict in all criminal proceedings.

State courts have required unanimous verdicts since 2020. Before that year, nearly all states followed the federal criminal trial procedure. Two states—Oregon and Louisiana—allowed non-unanimous jury verdicts. In 1972, the U.S. Supreme Court upheld these types of verdicts in Apodaca v. Oregon (406 U.S. 404) (1972).

In 2020, the Court overturned Apodaca with Ramos v. Louisiana (140 U.S. 1390). The Court reasoned that a deeper historical examination of the criminal justice system revealed an intentional bias against some jurors. The non-unanimous verdict helped ensure guilty verdicts for African Americans by eliminating one or two African American "not-guilty" votes (Justice Kavanaugh concurrence at 1418).

The current position of federal and state courts is that the Sixth and Fourteenth Amendments require unanimous verdicts to convict a criminal defendant.

Federal Court Civil Verdicts Must Be Unanimous

The Seventh Amendment grants litigants the constitutional right to a jury in a federal civil trial where the amount at issue is greater than "twenty dollars," a vast sum in 1787. Today, most federal court trials are nowhere near that sum.

Most federal civil cases involve civil rights violations, First Amendment rights violations, or diversity cases transferred from state courts. Very few original jurisdiction cases involving money arrive directly in federal court.

State Court Jury Verdicts: Unanimity Not Always Required

State courts now require juries and unanimous verdicts for criminal procedures. A defendant may waive a jury trial and request a bench trial if they wish. The Sixth Amendment grants a defendant the right to a jury from the area (not a "jury of your peers") and to a unanimous verdict in criminal cases.

States are not required to provide a jury for civil trials. Small claims cases don't have juries. Twenty-seven states allow non-unanimous verdicts for civil trials. Non-unanimous verdicts depend on the number of people in a jury. For instance, if there are six people on a jury, then at least five must render a verdict. If there are 12, at least nine must agree.

What Is a Hung Jury?

In both civil and criminal trials, if the jury can't agree on a verdict, they report back to the judge. If the judge feels the jury has not deliberated long enough, they will keep trying. A "hung jury" occurs when the jury is hopelessly deadlocked.

Depending on the state, the judge may keep sending the jury back to deliberate or ask if the jury is having trouble with one specific issue. The judge may issue an Allen charge. Also known as a dynamite, hammer, or shotgun charge, an Allen charge is a stern reminder about the seriousness of the jurors' duties and the importance of reaching a verdict.

If there's more than one reason for the jury's inability to reach a unanimous verdict, or some jurors refuse to vote with the rest of the jury, the judge must declare a mistrial.

Consequences of a Mistrial

If the judge declares a civil mistrial, the case returns to the plaintiff. The plaintiff has the option of retrying the lawsuit or dropping the case. If the only issue was that the jury could not agree, nothing prevents the plaintiff from refiling the case.

After a criminal mistrial, the case waits while the state decides what to do next. For serious crimes, the defendant is not released. But for lesser crimes, the defendant may ask for bond until a new trial is set.

The prosecution will review the case and either:

• Dismiss the charges if it appears a second trial by jury will reach the same result
• Offer a plea bargain for serious crimes
• Reset the case for trial

In some homicide cases, jurors have deadlocked on first- or second-degree murder charges because some jurors felt the case did not warrant the death penalty. Prosecutors have recognized this and tried the defendant on lesser included charges, relieving the jury of that pressure.

Double Jeopardy

A hung jury or mistrial isn't the same as a not-guilty verdict. Retrying a criminal defendant does not violate the double jeopardy clause of the Fifth Amendment. The double jeopardy protection begins or "attaches" when a jury is empaneled or sworn and finishes when there is a verdict. No verdict means double jeopardy does not apply.

Double jeopardy only applies in criminal cases. For civil cases, although the Fifth Amendment guarantees you can't lose "life, liberty, or property without due process of law," claim preclusion or res judicata prevents a plaintiff from filing a case twice.

Judge's Discretion To Set Aside Verdicts

Once a jury reaches a decision, the judge can still set aside the verdict. Attorneys can move for a judgment notwithstanding the verdict (JNOV) if they believe the other side has failed to prove their case. This request typically happens twice: once at the end of the moving party's case/the prosecution and once at the end of all the evidence in the trial. The judge may grant a judgment as a matter of law (JMOL) if it appears there is no issue of material fact for a jury to decide.

A judge can deliver both these judgments, but they can't set aside an acquittal in a criminal case. Once a jury has rendered a not-guilty verdict, the judge can't overturn it.

Questions About Unanimous Jury Verdicts? Talk to an Attorney

The unanimity requirement can be critical to your situation. If you have questions about jury verdicts or other litigation topics, including the appeals process, talk with an experienced attorney about your case.