Tuesday, January 4, 2011

Some interesting matters in criminal law

I am not a criminal law attorney, and my knowledge of criminal law, for the most part is based upon practice in New York and New Jersey plus watching shows like Law and Order.  I had always considered that American jurisprudence required that, in criminal cases where proof for conviction is based upon the "beyond a reasonable doubt" standard as opposed to lesser standards like "clear and convincing" or "by a preponderance of the evidence"; that juries throughout this country were uniformly panels of 12, and that conviction had to be by a unanimous vote.

Imagine my surprise when I learned that in Oregon, a criminal conviction could be by a majority of 10 to 2 and in Louisiana by a majority of 9 to 3! According to the Supreme Court majority even the standard for conviction being "beyond a reasonable doubt" did not directly arise from the Constitution, but from later interpretations regarding due process. See IN RE WINSHIP, 397 U.S. 358 (1970) .

There were two federal cases deciding that it is acceptable for state's to convict with less than a unanimous panel and that there is no such right guaranteed in the Sixth Amendment.
The Oregon decision is APODACA v. OREGON, 406 U.S. 404 (1972)  and the related case was JOHNSON v. LOUISIANA, 406 U.S. 356 (1972). 

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