The “hung jury” is a staple of courtroom dramas. The difficulty of convincing 12 jurors to agree unanimously on the overwhelming weight of evidence—or the lack thereof—is substantial. But that unanimity in criminal juries is not required in all courtrooms in America; some state courts recognize criminal convictions when the jury is not unanimous. The U.S. Supreme Court will determine in the coming months whether the Constitution permits this practice.

In 1972, the court held in a fractured opinion—Apodaca v. Oregon—that the Sixth Amendment’s right to a unanimous jury applied to federal criminal trials, but that it did not extend to the states. Four justices concluded that the Sixth Amendment required a unanimous jury. Four other justices took the position that the Sixth Amendment guaranteed a right to an impartial jury, but that it did not require a unanimous verdict. As the swing fifth vote, Justice Lewis Powell concluded that a unanimous verdict was required in federal criminal trials, but that requirement did not extend to the states. Based on that precedent, state courts have been constitutionally permitted to convict defendants with less than a unanimous jury.

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