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I hope that this will be carefully con-
sidered and approved by this Committee.
THE CHAIRMAN: Are there any ques-
tions of the sponsor of this amendment?
Delegate Weidemeyer, do you have any
questions ?
DELEGATE WEIDEMEYER: No, I
want to speak against it.
THE CHAIRMAN: Delegate Gleason, do
you have a question?
DELEGATE GLEASON: Yes.
THE CHAIRMAN: State the question.
DELEGATE GLEASON: Delegate Hen-
derson, am I reading this correctly, that
this would authorize the General Assembly
to provide in non-capital cases a jury of
ten with a verdict of six?
THE CHAIRMAN: Delegate Henderson.
DELEGATE HENDERSON: No, it still
retains the language of twelve. It requires
a twelve-man jury but permits ten of them
to bring in a verdict, either guilty or not
guilty, as the case may be.
THE CHAIRMAN: Delegate Henderson,
Delegate Groh —
DELEGATE GROH: Delegate Henderson,
in criminal cases of course, we have the
proposition that the State must prove the
case beyond a reasonable doubt.
How do you reconcile the position that if
two jurists are in doubt, you can still con-
vict? Is that not violating the whole con-
cept of reasonable doubt?
THE CHAIRMAN: Delegate Henderson.
DELEGATE HENDERSON: I do not
think so. I think that is the way you must
approach the thing, but there is certainly
nothing in the doctrine in my mind which
requires unanimity in that belief. If the
majority of them feel either for acquittal
or reversal, if the requisite ten agree, that
it enough for the verdict.
It prevents the hung jury problem and
it also avoids the question of jury tamper-
ing which has been one of the motives in
England for its passage. It also avoids the
question which I argued yesterday, that it
prevents having a veto power in a very
small minority.
THE CHAIRMAN: Are there any other
questions of the sponsor of the amend-
ment?
DELEGATE HARDWICKE: Mr. Chair-
man.
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THE CHAIRMAN: Delegate Hardwicke.
DELEGATE HARDWICKE: I would like
to ask this question of Delegate Henderson.
Mr. Chairman, I will preface the sentence
by saying it may sound like an arguing
question, but sincerely it is for information.
Before the Committee we had numerous
witnesses who insisted that the common law
privilege which is the unanimous verdict
was intended to give an accused the protec-
tion with regard to all of the twelve jurors.
In other words, the reasonable doubt was
with respect to all twelve, and if the doc-
trine related to that kind of unanimity,
would you care to comment on that? In
other words, is that the doctrine or is it
not the doctrine?
Do you agree or disagree with those
witnesses ?
THE CHAIRMAN: Delegate Henderson.
DELEGATE HENDERSON: I do not
agree. I do not think the doctrine of reason-
able belief or reasonable doubt has any place
in this problem of unanimity in the jury
which goes back into history as I suggested
yesterday. It probably went back to the time
when you had conjuration, in other words
you had to have twelve people to swear
with you or else you were guilty which is
just the reverse of what the situation be-
came later when the jury became a fact-
finding body and I think it is a very
unfortunate medieval survival to acquire
unanimity.
I suggested what the result would be, if
it were required by the Supreme Court.
You would not have any decisions at all.
T,HE CHAIRMAN: Delegate Blair, do
you have a question ?
DELEGATE BLAIR: Yes, sir.
THE CHAIRMAN: State your question.
DELEGATE BLAIR: Judge Henderson,
how many other states have departed from
the concept of the unanimity of the jury
verdicts ?
THE CHAIRMAN: Delegate Henderson.
DELEGATE HENDERSON: I have the
information here which was prepared by
the research department, Mr. Smock. It
states here there are at least six states
where the legislature provides for less than
twelve. They are listed here as Iowa, Neb-
raska, Ohio, Missouri, South Dakota and
Washington.
There are others, I think, which permit
less than the unanimous verdict. Here is
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