men are impressed by the occurrence of things that transpire before their eyes, how impossible it is for us always to agree upon the most ordinary affairs of life, when we remember that the jury is called only because two men, who are the litigants, can not agree, we will see the absurdity of putting twelve men into the jury-box to hear the most contradictory evidence of a particular fact, and then say that they must all agree! In many cases this agreement, when reached, is only apparent, and occasionally a false verdict is doubtless procured by the tenacity of some determined juryman. And still more frequently are juries discharged because they can not agree, and the parties and the public are subjected to the expense of another trial.
To give moderate room for honest difference of opinion, to disarm occasional prejudice and render corruption fruitless, I think in all civil causes three fourths of the jury ought to be able to return a verdict. It has been urged that the rule requiring unanimity is necessary to insure that every juror shall be heard and the grounds of his opinion considered. Indeed, this has been defended as the only redeeming feature of the whole system of trial by jury. If, after hearing all the evidence adduced, after counsel have exhausted their powers in presenting their respective sides of the case, after the presiding judge has pointed out the issues to be determined and laid down the rules of law applicable to them—I say, if, after all this, nine out of the twelve are agreed and are ready to render a verdict without the advice of the other three, it is very probable that the preponderance of evidence is on their side. In Nevada the three-fourths rule in civil cases has been in successful operation nearly twenty years, and bench, bar, and people alike, seem to be well satisfied with the result. Although this provision is in their State Constitution,[1] yet the Legislature by a two-thirds vote might introduce the rule of unanimity. That no attempt has been made to do so speaks volumes for the practical workings of the three-fourths rule. While I think that three fourths may safely be allowed to return a verdict in civil causes, I am inclined to believe that in criminal causes considerations of humanity demand, and the State can afford to grant every individual, such a strong presumption of innocence that only a unanimous verdict of twelve of his peers shall be able to overcome it. In civil causes, where a preponderance of evidence entitles either party to a verdict, it is illogical to require unanimity, but in criminal cases, where the defendant must be proved guilty beyond a reasonable doubt, it would be absurd to say that he may be convicted while a single voice from the jury-box is heard protesting that he is innocent. Should it be impossible for a jury in a criminal case to agree, they are discharged, and the defendant is put on trial again before another jury. So justice can be defeated only by the unanimous consent of twelve sworn men of the neighborhood, and, if justice may sometimes be delayed and extra expense incurred
- ↑ Constitution of Nevada, Article I, section 3.
