The right of trial by jury is secured to all and shall remain inviolate. But upon default of appearance or by consent of the parties expressed in such manner as the law may provide, all cases may be tried without a jury or before fewer than the number of jurors provided by law. In all civil actions, two-thirds of the jury may render a verdict, and a verdict so rendered shall have the same force and effect as if all had concurred therein. In all criminal action, the verdict shall be unanimous.

History

[History includes the sources, drafting, and ratification of the provision.]

Sources

[Sources include preceding constitutions including Montana 1889, Montana 1884, other state constitutions, and other textual sources of the provision.]

1884 Montana Constitution (proposed)

The right of trial by jury shall remain inviolate in criminal cases; but a jury in civil cases in all courts, or in criminal cases not of the grade of felony, may consist of less than twelve men, as may be prescribed by law. And the Legislative assembly may provide by law that, in civil cases, any number, not less than two-thirds of a jury, may find a verdict, and that such verdict, when so found, shall be taken and held to have the same force and effect as if all of such jury concurred therein. Hereafter, a grand jury shall consist of twelve men, any nine of whom, concurring, may find an indictment; Provided, The Legislative Assembly may change, regulate, or abolish the grand jury system. Mont. Const. art. I, § 23.

1889 Montana Constitution

The right of trial by jury shall be secured to ail, and remain inviolate, but in all civil cases and in all criminal cases not amounting to felony, upon default of appearance or by consent of the parties expressed in such manner as the law may prescribe, a trial by jury may be waived, or a trial had by any less number of jurors than the number provided by law. A jury in a justice's court both in civil cases and in cases of criminal misdemeanor shall consist of not more than six persons. In all civil actions and in all criminal cases not amounting to felony, two-thirds in number of the jury may render a verdict, and such verdict so rendered shall have the same force and effect as if all of such jury concurred therein. Mont. Const. art. III, § 23.

Drafting

Bill of Rights Committee Proposal (Comments)

The committee voted unanimously to make some changes in the section on trial by jury. The first of these permits the defendant to waive a jury trial in felony cases as well as civil and misdemeanor cases. The committee felt that expanding the choice of a defendant to waive a jury trial to include felony cases, the defendant could decide with the aid of his attorney whether to try his case before a jury or the judge sitting alone. The defendant may well desire to eliminate the time incarcerated while waiting for the next jury term or may feel in certain instances that his chances of fairly presenting his case are better without a jury.

The committee also felt that it was essential to strengthen the presumption of innocence in all criminal actions by requiring a unanimous verdict for misdemeanors as well as felonies. If it urged by the committee that since guilty must be clearly established in all criminal cases, there should be no distinction between the number of jurors in agreement required to convict of a misdemeanor or a felony. If guilty is clearly established, it is believed that the jury will be able to agree to convict. If guilty is not established, and several jurors cannot agree, it is a long established principle of justice that the accused ought not to be convicted. The loss of livelihood and lifetime criminal record occasioned by a criminal conviction are too damaging to permit less than a unanimous verdict.Montana Constitutional Convention, Vol. II, Bill of Rights Committee Proposal 641-642

Montana Constitutional Convention Floor Debate

Delegate Habedank: Delegate Habedank argued for an amendment to the right of trial by jury in Section 26 and the amendment would provide that the trial by jury portion of the 1972 Montana Constitution contain the same language as the 1889 Montana Constitution that allow for a jury to convict an individual of a criminal misdemeanor by a two-thirds vote of guilty as opposed to a unanimous verdict.5 Verbatim Transcript 1780 (Mar. 9, 1972). Delegate Habedank felt that the fact that a criminal defendant is able to appeal any misdemeanor conviction from justice court to district court and have that conviction reviewed de novo meant the convention delegates should not stray from the language in the 1889 Constitution.5 Verbatim Transcript 1781 (Mar. 9, 1972).

Delegate Foster: Delegate Foster argued to the delegates that he was "very strongly" against Delegate Habedank's amendment.Id. Delegate Foster articulated that if an individual is to be convicted of a crime the prosecution must prove their case beyond a reasonable doubt and this requires being found guilty by a unanimous jury verdict.Id. Delegate Foster said he found this right, the right that the prosecution prove one's guilty beyond a reasonable doubt by a unanimous verdict, was "a very basic right as an American citizen" and that by included the unanimous jury verdict requirement in the 1972 Montana Constitution, it would be a step in the right direct to "preserve this important right."Id.

Delegate Dahood: Delegate Dahood agreed with Delegate Foster and said "[t]he heart and soul of the American protective system of criminal justice is reasonable doubt."5 Verbatim Transcript 1782 (Mar. 9, 1972) Delegate Dahood said that if Montana is to have a sound criminal law system then the 1972 Constitution must include the unanimous jury verdict language because it would provide "consistency" and support a "logical run of reason throughout all of the law" in Montana.5 Verbatim Transcript 1783 (Mar. 9, 1972)

Delegate Campbell: Delegate Campbell also rose in opposition to Delegate Habedank's proposed amendment.5 Verbatim Transcript 1784 (Mar. 9, 1972) Delegate Campbell advocated for the unanimous verdict language because it is important that protection is given to "the individual, not the prosecutor."Id. Delegate Campbell argued that when a man's livelihood is at stake, there was no reason that a prosecutor should "have the easiest life possible to put criminal records on our citizens."Id.

After this debate the delegates voted against Delegate Habedank's amendment by a vote of 46 against and 28 for.5 Verbatim Transcript 1786 (Mar. 9, 1972) The full text of Article II Section 26 was then adopted by the convention delegates.5 Verbatim Transcript 1792 (Mar. 9, 1972)

Ratification

1972 Official Text with Explanation: Revises 1889 constitution by permitting a defendant to waive a jury trial in felony cases as well as civl and misdemeanor cases and by requiring all jurors (rather than 2 / 3) agree before a defendant may be convicted of a misdemeanor.

Interpretation

The requirement that the verdict be unanimous in all criminal cases is codified in Title 46 of the Montana code.Mont. Code Ann. § 46-16-603

Woirhaye v. Montana Fourth Judicial Dist. Court (1998)

The Montana Supreme Court looked to reinforce the intent of the framers of the Montana Constitution when it held in Woirhaye v. Montana Fourth Judicial Dist. Court that "[t]hese provisions in the Montana Constitution were modeled after Article III, Sections 16 and 23 of the 1889 Montana Constitution, with some changes. A comparison of the 1889 and the 1972 Montana Constitutions shows that the intent of the framers of the present Constitution was to strengthen the jury trial right in misdemeanor cases. Under Article III, Section 23 of the 1889 Montana Constitution, a person could be convicted of a misdemeanor by a jury verdict of two-thirds of the jury's number. However, the 1972 Montana Constitution strengthened the jury trial right by providing that in all criminal actions, both felony and misdemeanor, the verdict of the jury must be unanimous."Woirhaye v. Montana Fourth Judicial Dist. Court, 1998 MT 320, 292 Mont. 185, ¶ 17, 972 P.2d 800.

Commentary