Rethinking Retroactivity in Light of the Supreme Court’s Jury Unanimity Requirement

MICHAEL C. DORF

In light of the U.S. Supreme Court’s decision Monday in Ramos v. Louisiana, in which it held that the federal Constitution forbids states from convicting defendants except by a unanimous jury, Cornell law professor Michael C. Dorf discusses the Court’s jurisprudence on retroactivity. Dorf highlights some costs and benefits of retroactivity and argues that the Court’s refusal to issue advisory opinions limits its ability to resolve retroactivity questions in a way that responds to all the relevant considerations.

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State v. Malave

Docket: SCWC-18-0000332

Opinion Date: April 22, 2020

Judge: Mark E. Recktenwald

Areas of Law: Criminal Law

The Supreme Court affirmed the judgment of the intermediate court of appeals (ICA) affirming the judgment of the family court convicting Defendant on two counts of sexual assault in the first degree, holding that the ICA did not err in affirming the family court. At issue on appeal was the jurisdiction of the family court to try Defendant and the propriety of instructing the jury on a lesser included offense. The ICA affirmed, concluding that the family court had subject matter jurisdiction pursuant to Haw. Rev. Stat. 571-14(a)(1) and that there was no rational basis to support an instruction of the lesser included offense of sexual assault in the third degree. The Supreme Court affirmed, holding (1) although the jury should have been instructed to determine jurisdictional facts, the error was harmless; and (2) the family court was not obligated to instruct the jury on the lesser included offense of sexual assault in the third degree.