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Hastings Constitutional Law Quarterly

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I argue in this article that supermajority decision rules would be more appropriate than unanimity or majority rule for criminal jury convictions and that majority decision rules would be more appropriate than either unanimity or supermajoritarian rules for acquittals. I first summarize some of the advantages and disadvantages of various decision rules as a matter of general democratic theory. I next outline the arguments made for various decision rules in the context of the criminal jury. Finally, I offer an argument for supermajoritarian requirements for conviction rooted in our general constitutional commitment to supermajoritarianism. I present a coherentist account for a supermajority rule for conviction, but ultimately endorse a simple majority rule for acquittal: since the costs are asymmetric with respect to conviction and acquittal, I am persuaded that such asymmetry should be mirrored in the jury decision rule.

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