UNANIMITY: HISTORY, EMPIRICS, & MCDONALD

Zachary C. Smallwood, University of Oregon School of Law

Abstract

In light of the recent McDonald decision, which abandoned the concept of State experimentation and mandates States to mirror Constitutional standards of federal interpretations, unanimity once again becomes a relevant question to American jurisprudence. Given data, history, and policy considerations, McDonald dictates that Oregon’s failure to echo the federal Sixth Amendment standards is inconsistent. Accordingly, to allow Oregon to apply a watered-down Sixth Amendment standard as compared to its federal counterpart is to apply the two-track approach that defies the Court’s recent ruling in McDonald. Thus, unanimity ought to be preserved as a right essential to the Sixth Amendment and incorporated by the due process clause.