Last time, we reviewed the Court’s civil cases, asking whether divided decisions from the Court of Appeal were more likely to be reversed in whole or in part than unanimous ones. This time, we’re turning our attention to the criminal cases and finding a very different result.
In only four of the past thirty-one years were unanimous criminal decisions from the Court of Appeal more frequently reversed than decisions with a dissent. In most years, the numbers weren’t at all close (see 1991 – 75% divided cases reversed, 12.9% unanimous ones, 2003 – 80% to 24.14%, 2007 – 60% to 13.73% and 2018 – 60% to 22.22%).
Not surprisingly, our “not affirmed” comparison isn’t close either. In only five of the past thirty-one years were unanimous criminal cases either reversed outright, or reversed in part, at a higher rate than divided decisions.
But here’s the curious bit (and I don’t have a theory to explain this one yet) – all five of those years were between 2011 and 2020.
So yes, although it’s been a slightly less reliable signal in the past ten years, for the most part, if a criminal case with a dissent below gets granted review, it’s more likely to get reversed at the Supreme Court than a unanimous decision.
Join us back here next week as we turn our attention to a new issue.