Americans place a strong emphasis on their constitutional rights and the importance of a fair legal system. In 48 states and federal court, the vote from a single juror to acquit a defendant is enough to prevent a conviction. But in Louisiana and Oregon, people have been punished on a 10-to-2 or 11-to-1 verdict since the decision of Apodaca v. Oregon in 1972, which held that state juries need not be unanimous in order to convict a criminal defendant.

However, last October, the constitutionality of this long-standing rule on non-unanimous jury verdicts in criminal cases was called into question in Ramos v. Louisiana. In this case, petitioner Evangelisto Ramos was convicted of a serious crime in Louisiana by a 10-to-2 vote. Instead of receiving a mistrial, which would have occurred in almost any other state, Ramos was sentenced to life without parole. This, Ramos argued, was an unconstitutional denial of his Sixth Amendment right.

On April 20, 2020, the Supreme Court overruled Apodaca, stating that these two states’ laws violate the Sixth Amendment, which guarantees all citizens the right to a speedy trial and an impartial jury of their peers. Five Justices authored separate opinions concurring with this conclusion, while Justice Alito dissented.

Alito contends that, for nearly 50 years, the Court has held that the Sixth Amendment permits non-unanimous verdicts in state criminal trials. Indeed, after all this time, no Justice has even hinted that Apodaca should be reconsidered. Since 1972, thousands of cases in Oregon and Louisiana have permitted convictions on a 10-to-2 verdict. By overturning Apodaca, Alito argues, the courts and criminal justice systems of those states could be dealt a “crushing burden.”

As it is, the Supreme Court’s decision may have little practical importance going forward because Louisiana has now abolished non-unanimous verdicts, and Oregon was already on the verge of following suit, even before the court intervened.

Whether by their own accord or because the Supreme Court has mandated it, non-unanimous verdicts are now banished from Oregon, Louisiana, and all other American courtrooms. However, the practice remains in one jurisdiction—the military.

Everything the Supreme Court has said is of no consequence to members of the armed forces because Ramos only speaks to the Sixth Amendment’s guarantee of a trial by jury in civilian proceedings. After all, the Supreme Court has long held that, while the Constitution may not spell it out, the Founders never meant for the Sixth Amendment to apply to the military. “‘Cases arising in the land or naval forces’…are excepted from the operation of the Amendments. [They] are expressly excepted from the Fifth Amendment, and are deemed excepted by implication from the Sixth.”

Members of the armed forces have no right to a trial by an impartial jury of their peers—only a token representative jury almost invariably composed of senior officers—because Congress and the courts have accepted that the military is exempt from this constitutional requirement. Also, only a three-fourths majority is currently required for a conviction (up from two-thirds prior to 2019). That is, except for the most serious cases involving capital offense charges. Under Articles 25a and 52 of the Uniform Code of Military Justice (UCMJ), the unanimous concurrence of all 12 members is required to convict a defendant of a capital offense. It seems even military law recognizes that, when it matters most, unanimous verdicts are more reliable.

Some have wondered whether an argument could be made in favor of unanimous verdicts in military trials under the Fifth Amendment’s due process clause. After all, the Ramos decision to require unanimity on the states comes from the due process clause found under the Fourteenth Amendment.

However, this argument—that it might be possible to include Sixth Amendment jury standards into military practice by way of the Fifth Amendment’s due process clause—has been definitively rejected by military courts. In 2015, the Air Force Court of Criminal Appeals said this:  “There is no prevailing Fifth Amendment standard…with which to require military conformity.”

The results are clear—military personnel are provided no additional due process under the Fifth Amendment than Congress has already chosen to give. However, the accused is not the only party that misses out due to the lack of a jury in courts-martial; government convictions in these trials also lack the benefit of a jury’s legitimacy. After all, while some have wondered how a group of laypeople can handle making such complicated and life-changing decisions, the public’s trust in the jury system is not misplaced. Even in difficult cases, juries generally work painstakingly to reach a fair conclusion.

Still, the lack of a jury and allowance of non-unanimous votes to convict are just two relatively minor differences between civilian and military courts. Military jurors are not chosen at random; they may not abstain; they vote anonymously; they receive more detailed instructions; and there can be no hung jury. Plus, these are only the differences related to the jury.

The complexity of military cases and the lasting consequences of these proceedings underscore the importance of securing proper legal representation. At Joseph L. Jordan, Attorney at Law, our defense team is ready to fight for you. We’ll provide skilled, aggressive, and effective legal guidance for your unique case. Our practice operates with the same values as the armed forces—liberty, justice, and service. No matter where in the world you’re stationed, we can represent you.

To work with an experienced, knowledgeable court-martial lawyer, please contact us online or call us toll free at 888-616-6177 or 254-320-9338 for a free consultation.