Apodaca v. Oregon/Dissent Stewart

[p414] MR. JUSTICE STEWART, with whom MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL join, dissenting.

In Duncan v. Louisiana, 391 U.S. 145, the Court squarely held that the Sixth Amendment right to trial by jury in a federal criminal case is made wholly applicable to state criminal trials by the Fourteenth Amendment. Unless Duncan is to be overruled, therefore, the only relevant question here is whether the Sixth Amendment's guarantee of trial by jury embraces a guarantee that the verdict of the jury must be unanimous. The answer to that question is clearly "yes," as my Brother POWELL has cogently demonstrated in that part of his concurring opinion that reviews almost a century of Sixth Amendment adjudication.

Until today, it has been universally understood that a unanimous verdict is an essential element of a Sixth Amendment jury trial. See Andres v. United States, 333 U.S. 740, 748; Patton v. United States, 281 U.S. 276, [p415] 288; Hawaii v. Mankichi, 190 U.S. 197, 211-212; Maxwell v. Dow, 176 U.S. 581, 586; Thompson v. Utah, 170 U.S. 343, 351, 353; cf. 2 J. Story, Commentaries on the Constitution § 1779 n. 2 (5th ed. 1891).

I would follow these settled Sixth Amendment precedents and reverse the judgment below us.