N.J. Constitutional Convention: Vol. 4, Page 744
While our courts have zealously guarded the right of trial by jury, it is noteworthy that they have repeatedly recognized that a jury trial was an instrument of justice which could and should be moulded to fit the ever-changing needs of a progressive society. Thus, while the right of trial by jury must remain "inviolate," it does not mean that it is "unalterable"6 Clayton v Clark, (Sup. Ct.) 55 N. J. L. 539, 540. and that it "in no sense imports immunity from all regulation."7 Humphrey v Eakeley, (Sup. Ct.) 72 N. J. L. 424, 426. The statute8 P. L. 1921, chapter 28, page 50. which permitted women to qualify as jurors was recognized as a "radical departure."9 State v Dolbow, supra, at page 567.
In bringing our Constitution up to date, therefore, it is high time that we realize that while unanimity of twelve jurors was an essential attribute at common law, our times require a change. Our Legislature cannot enact legislation permitting verdicts concurred in by less than all the jurors, because at the time of its adoption, the common law rule requiring unanimity was in force. Constitutional guaranties of right to trial by jury, where not qualified by any other constitutional provision, are implied limitations upon the power of the Legislature to provide for less than a unanimous verdict.10 53 Am. Jur. 697, sec. 1006.
Attempts to do away with the necessity of unanimity in a verdict by the Legislature (without a constitutional amendment permitting such legislation) have repeatedly been held unconstitutional in other states.11 New Hampshire - Opinion of the Justices, 41 N. H. 550; Indiana - Ewing v Duncan, (Ind. Sup. 1935) 197 N. E. 901; Arizona - 4 Ariz. 158, 36 Pac. 499; Montana - Kleinschmidt v Dunphy, 1 Mont. 118; reversed on other grounds, Dunphy v Kleinschmidt, 79 U. S. 610.
Aside from the repugnance which the unanimity rule bears to the majority rule in our form of government, five compelling reasons exist which favor the adoption of the proposed amendment.
- 1. From available statistics, the requirements for a unanimous verdict results in reported disagreements of four per cent of jury trials. (The Judicial Council of New York reported 283 disagreements out of 6,517 trials before the Supreme Court of New York, 1939 - 1941). Understandably, but none the less unfortunately, such disagreements usually occur in long, complicated trials. They entail further expense in costly retrials, loss of time and inconvenience to contestants and witnesses.
- 2. As previously indicated, the requirement for unanimity has led to many unjust compromise verdicts which, while not reported as such, have all the earmarks of compromise and the inability of the jurors to concur with each other upon the issues before them.
- 3. One recalcitrant or dishonest juror has the power under our present system to hold up the whole judicial process. Even where an honest juror refuses to surrender a conscientious conviction he
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