Non-Unanimous Verdicts in Criminal Cases?

A Wake County jury determined yesterday that Starbucks is not liable for injuries suffered by Raleigh Police Department Lieutenant Matthew Kohr when a cup of hot coffee spilled on his lap. WRAL has the story here. The verdict was 10-2. The parties agreed to a non-unanimous verdict. Can they do that? Could the parties in a criminal case do that?

Civil cases. In civil cases, they can do that. The parties may consent to “a verdict or a finding of a stated majority of the jurors” rather than a unanimous verdict. N.C. R. Civ. P. 48. In the interests of finality and of reducing litigation costs, parties to civil disputes sometimes agree to non-unanimous verdicts.

Criminal cases. In criminal cases, I don’t think the parties can consent to a non-unanimous verdict. The state constitution provides that “[n]o person shall be convicted of any crime but by the unanimous verdict of a jury in open court.” And G.S. 15A-1201 states that “[i]n all criminal cases the defendant has the right to be tried by a jury of 12 whose verdict must be unanimous.”

Both the constitutional provision and the statute now contain exceptions for bench trials, but neither addresses the possibility of the parties waiving unanimity or consenting to non-unanimity, or of the defendant alone doing so. I’m not aware of a North Carolina case directly on point, but I doubt that a non-unanimous jury verdict would be proper in a criminal case in this state, for two reasons.

First, both the constitutional and statutory provisions appear to set out procedural mandates rather than rights that the parties jointly, or the defendant alone, may waive. Note that while the statute refers to the defendant’s right to a jury of 12, the reference to unanimity isn’t phrased as a right. More importantly, there’s no reference at all to rights in the constitutional provision. While the cases sometimes refer to the defendant’s right to a unanimous verdict, see, e.g., State v. Asbury, 291 N.C. 164 (1976) (“The North Carolina Constitution insures to each criminal defendant the right to a unanimous jury verdict.”), the actual provisions themselves aren’t written that way, nor do they contain any waiver provisions.

Second, case law prior to the recent constitutional amendment provided that the parties could not consent to a non-jury trial where the state constitution and statutes required a jury trial. See, e.g., State v. Hudson, 280 N.C. 74 (1971) (stating that “a trial by jury in a criminal action cannot be waived by the accused”). If consent to a non-jury trial was not permissible, consent to a non-unanimous jury would also seem to be impermissible.

Would a defendant ever want to agree? Why would a defendant ever agree to accept a non-unanimous verdict? Wouldn’t a defendant rather have a divided jury result in a mistrial, given that the State may decide not to re-try the case? Most of the time, sure. But it is easy to imagine a case in which a defendant might want to accept a verdict from a divided jury. Suppose, for example, that a defendant adduced some evidence that the State didn’t expect and that caught the prosecutor by surprise. The evidence came in well and the defendant suspects that most members of a divided jury are leaning towards acquittal. If a mistrial is declared and the State has time to prepare to meet the surprise evidence, the next trial may not go so well. In a case like that, the defendant might prefer to accept a non-unanimous verdict.

Other jurisdictions. As an interesting aside, other jurisdictions are split on whether a non-unanimous verdict in a criminal case is permissible, and if so whether both parties must agree or whether the unanimity requirement is the defendant’s right to waive. See generally Wayne F. Foster, Validity and Efficacy of Accused’s Waiver of Unanimous Verdict, 97 A.L.R.3d 1253 (1980); 50A C.J.S. Juries § 205 (updated 2015).