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than felonies and a better definition is
being worked on right now by the Commis-
sion for the study of revision of our crimi-
nal law.
THE CHAIRMAN: Any other questions
of the sponsor?
Delegate Marion.
DELEGATE MARION: Delegate Hender-
son, I wonder if you could tell us how many
other states have had experience in criminal
cases with juries of no less than six and
how many states there are and what their
experience has been.
THE CHAIRMAN: Delegate Henderson.
DELEGATE HENDERSON: I have a
lengthy memorandum which has been pre-
pared by the research staff here. I have not
personally done any research. I read here
that twenty-six state constitutions provide
for jury verdicts other than unanimous
decisions. Only six state constitutions pro-
vide for less than unanimity in criminal
cases less than felonies.
Your question was as to less than twelve ?
THE CHAIRMAN: Delegate Marion ask-
ed you as to states with a jury of six.
DELEGATE HENDERSON: Those states
that are given here are: Iowa, Nebraska,
Arizona, Missouri, South Dakota and Wash-
ington.
THE CHAIRMAN: Any further questions
of the sponsor?
Delegate Scanlan.
DELEGATE SCANLAN: Judge Hender-
son, my question is directed to the less than
unanimous verdict aspect of your proposal.
Is my understanding correct that the
mother country, England, which originally
had the unanimous verdict requirement in
criminal cases, has retreated from that and
now permits less than unanimous verdict
in criminal cases and one of the reasons
assigned for the change on this matter is
the large increase in jury tampering that
has grown up in recent years ?
THE CHAIRMAN: Delegate Henderson.
DELEGATE HENDERSON: I believe
that is true. They have changed their prac-
tice in that respect.
THE CHAIRMAN: Delegate Churchill
Murray, do you have a question?
DELEGATE E. C. MURRAY: Delegate
Scanlan asked my question.
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THE CHAIRMAN: Delegate Chabot, do
you have a question?
DELEGATE CHABOT: Yes, sir.
Delegate Henderson, could you indicate
how many of the states go as far as this
amendment would in permitting a less than
unanimous jury in a major criminal case,
whether it is called a felony or whatever
the most serious punishment would be ?
THE CHAIRMAN: Delegate Henderson.
DELEGATE HENDERSON: I think there
are only one or two cases which go all the
way. That is, the statute usually provides
for less than unanimity in non-felonious
cases. But that, I believe, is not by express
constitutional provision, but by action of
the legislature which has simply applied
the rule only to small juries in the inferior
courts, though not in the courts of higher
jurisdiction. That seems to be the pattern.
I believe there are only one or two that
apply it all the way along the line.
THE CHAIRMAN: Delegate Henderson's
time has expired.
The Chair recognizes Delegate Kiefer.
DELEGATE KIEFER: Mr. Chairman,
ladies and gentlemen, I must rise to op-
pose this amendment.
It is with reluctance that I go against
such a distinguished gentleman as Judge
Henderson. Nevertheless, the Committee
considered this at great length, and had a
considerable number of witnesses before it.
The only witness who appeared before
this Committee who was as I recall off-
hand, in favor of this provision was Judge
Henderson himself. We had Chief Judge
Foster of the Supreme Bench of Baltimore
City, we had representatives from the Bar
Association of Baltimore City, Maryland
State Bar Association, and we had other
judges, and individuals, all of whom were
unanimous in their opinion that the verdict
in a criminal case should be unanimous, and
that, generally speaking, there should be
not less than 12 jurors.
Now, I well recognize that some states
permit less than unanimous verdicts, but I
cannot categorize them any more than
Judge Henderson can. We went into this
thing very carefully. There are a number of
jurisdictions which make a provision for a
less than unanimous verdict or less than
twelve judges, or jurors, but they do this
by spelling out only in minor cases and only
under certain circumstances, and there is
only maybe one that will permit a less
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