Held: A conviction by a nonunanimous six-person jury in
a state criminal trial for a nonpetty offense, as contemplated by
provisions of the Louisiana Constitution and Code of Criminal
Procedure that permit a conviction by five out of the six jurors,
violates the right of an accused to trial by jury guaranteed by the
Sixth and Fourteenth Amendments. Pp.
441 U. S.
134-139.
(a) Lines must be drawn somewhere if the substance of the jury
trial right is to be preserved, and while this line-drawing process
"cannot be wholly satisfactory, for it requires attaching different
consequences to events which, when they lie near the line, actually
differ very little,"
Duncan v. Louisiana, 391 U.
S. 145,
391 U. S. 161,
conviction for a nonpetty offense by only five members of a
six-person jury presents a threat to preservation of the substance
of the jury trial guarantee and justifies requiring verdicts
rendered by such juries to be unanimous.
Cf. Ballew v.
Georgia, 435 U. S. 223. Pp.
441 U. S.
137-138.
(b) The near-uniform judgment of those States utilizing
six-member juries in trials of nonpetty offenses that the verdict
must be unanimous to convict, provides a useful guide in delimiting
the line between those jury practices that are constitutionally
permissible and those that are not. P.
441 U. S.
138.
(c) The State's substantial interest in reducing the time and
expense associated with the administration of its system of
criminal justice is insufficient justification for its use of
nonunanimous six-person juries. Any benefits that might accrue from
the use of such juries, as compared with requiring unanimity, are
speculative, at best, and, more importantly, when a State has
reduced the size of its juries to the minimum number permitted by
the Constitution, the additional authorization of nonunanimous
verdicts sufficiently threatens the constitutional principles
establishing the size threshold that any countervailing interest of
the State should yield. Pp.
441 U. S.
138-139.
360 So.
2d 831, reversed in part, affirmed in part, and remanded.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, BLACKMUN, POWELL, and STEVENS, JJ.,
joined. STEVENS, J., filed a concurring opinion,
post, p.
441 U. S. 139.
BRENNAN, .J., filed
Page 441 U. S. 131
an opinion concurring in part and dissenting in part, in which
STEWART and MARSHALL, JJ., joined,
post, p.
441 U.S. 140.
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
The Louisiana Constitution and Code of Criminal Procedure
provide that criminal cases in which the punishment imposed may be
confinement for a period in excess of six months "shall be tried
before a jury of six persons, five of whom must concur to render a
verdict." [
Footnote 1] We
granted certiorari to decide whether conviction by a nonunanimous
six-person jury in a state criminal trial for a nonpetty offense
as
Page 441 U. S. 132
contemplated by these provisions of Louisiana law violates the
rights of an accused to trial by jury guaranteed by the Sixth and
Fourteenth Amendments. [
Footnote
2] 439 U.S. 925 (1978).
Petitioners, an individual and a Louisiana corporation, were
jointly charged in two counts with the exhibition of two obscene
motion pictures. [
Footnote 3]
Pursuant to Louisiana law, they were tried before six-person jury,
which found both petitioners guilty as charged. A poll of the jury
after verdict indicated that the jury had voted unanimously to
convict petitioner Wrestle, Inc., [
Footnote 4] and had voted 5-11 to convict petitioner
Burch. Burch was sentenced to two consecutive 7-month prison terms,
which were suspended, and fined $1,000; Wrestle, Inc., was fined
$600 on each count.
Petitioners appealed their convictions to the Supreme Court
Page 441 U. S. 133
of Louisiana, where they argued that the provisions of Louisiana
law permitting conviction by a nonunanimous six-member jury
violated the rights of persons accused of nonpetty criminal
offenses to trial by jury guaranteed by the Sixth and Fourteenth
Amendments. [
Footnote 5] Though
acknowledging that the issue was "close," the court held that
conviction by a nonunanimous six-person jury did not offend the
Constitution.
State v. Wrestle, Inc., 360 So.
2d 831, 838 (1978). The court concluded that none of this
Court's decisions precluded use of a nonunanimous six-person
jury.
"'If 75 percent concurrence (9/12) was enough for a verdict as
determined in
Johnson v. Louisiana, 406 U. S.
356 . . . (1972), then requiring 83 percent concurrence
(5/6) ought to be within the permissible limits of
Johnson.'"
Ibid., quoting Hargrave, The Declaration of Rights of
the Louisiana Constitution of 1974, 3 La.L.Rev. 1, 56 n. 300
(1974). And our recent decision in
Ballew v. Georgia,
435 U. S. 223
(1978), striking down a Georgia law allowing conviction by a
unanimous five-person jury in nonpetty criminal cases, was
distinguishable in the Louisiana Supreme Court's view:
"[I]n
Williams [v. Florida, 399 U. S. 78
(1970)] the court held that a six-person jury was of sufficient
size to promote adequate group deliberation, to insulate members
from outside intimidation, and to provide a representative
cross-section of the community. These values, which
Ballew
held a five-person jury is inadequate to serve, are not necessarily
defeated because the six-person jury's verdict may be rendered by
five instead of by six persons."
360 So. 2d at 838.
Page 441 U. S. 134
Since the Louisiana Supreme Court believed that conviction by a
nonunanimous six-person jury was not necessarily foreclosed by this
Court's decisions, it stated that it preferred to "indulg[e] in the
presumption of federal constitutionality which must be afforded to
provisions of our state constitution."
Ibid.
We agree with the Louisiana Supreme Court that the question
presented is a "close" one. Nonetheless, we believe that conviction
by a nonunanimous six-member jury in a state criminal trial for a
nonpetty offense deprives an accused of his constitutional right to
trial by jury.
Only in relatively recent years has this Court had to consider
the practices of the several States relating to jury size and
unanimity.
Duncan v. Louisiana. 391 U.
S. 145 (1968), marked the beginning of our involvement
with such questions. The Court in
Duncan held that,
because trial by jury in "serious" criminal cases is "fundamental
to the American scheme of justice" and essential to due process of
law, the Fourteenth Amendment guarantees a state criminal defendant
the right to a jury trial in any case which, if tried in a federal
court, would require a jury under the Sixth Amendment.
Id.
at
391 U. S. 149,
391 U. S.
158-159. [
Footnote
6]
Two Terms later, in
Williams v. Florida, 399 U. S.
78,
399 U. S. 86
(1970), the Court held that this constitutional guarantee of trial
by jury did not require a State to provide an accused with a jury
of 12 members, and that Florida did not violate
Page 441 U. S. 135
the jury trial rights of criminal defendants charged with
nonpetty offenses by affording them jury panels comprised of only 6
persons. After canvassing the common law development of the jury
and the constitutional history of the jury trial right, the Court
concluded that the 12-person requirement was "a historical
accident," and that there was no indication that the Framers
intended to preserve in the Constitution the features of the jury
system as it existed at common law.
Id. at
399 U. S. 89-90.
Thus freed from strictly historical considerations, the Court
turned to examine the function that this particular feature
performs and its relation to the purposes of jury trial.
Id. at
399 U. S.
99-100. The purpose of trial by jury, as noted in
Duncan, is to prevent government oppression by providing a
"safeguard against the corrupt or overzealous prosecutor and
against the compliant, biased, or eccentric judge." 391 U.S. at
391 U. S. 156.
Given this purpose, the
Williams Court observed l;hat the
jury's essential feature lies in the
"interposition between the accused and his accuser of the common
sense judgment of a group of laymen, and in the community
participation and shared responsibility that results from that
group's determination of guilt or innocence."
399 U.S. at
399 U. S. 100.
These purposes could be fulfilled, the Court believed, so long as
the jury was of a sufficient size to promote group deliberation,
free from outside intimidation, and to provide a fair possibility
that a cross-section of the community would be represented on it.
Ibid. The Court concluded, however, that there is
"little reason to think that these goals are in any meaningful
sense less likely to be achieved when the jury numbers six, than
when it numbers --
particularly if the requirement of unanimity
is retained."
Ibid. (emphasis added). [
Footnote 7]
Page 441 U. S. 136
A similar analysis led us to conclude in 1972 that a jury's
verdict need not be unanimous to satisfy constitutional
requirements, even though unanimity had been the rule at common
law. Thus, in
Apodaca v. Oregon, 406 U.
S. 404 (1972), we upheld a state statute providing that
only 10 members of a 12-person jury need concur to render a verdict
in certain noncapital cases. [
Footnote 8] In terms of the role of the jury as a
safeguard against oppression, the plurality opinion perceived no
difference between those juries required to act unanimously and
those permitted to act by votes of 10 to 2. 406 U.S. at
406 U. S. 411.
Nor was unanimity viewed by the plurality as contributing
materially to the exercise of the jury's common sense judgment or
as a necessary precondition to effective application of the
requirement that jury panels represent a fair cross-section of the
community.
Id. at
406 U. S. 410,
406 U. S. 412.
[
Footnote 9]
Last Term, in
Ballew v. Georgia, 435 U.
S. 223 (1978), we considered whether a jury of less than
six members passes constitutional scrutiny, a question that was
explicitly reserved in
Williams v. Florida. See
399 U.S. at 91 n.
399 U. S. 28. The
Court, in separate opinions, held that conviction by a unanimous
five-person jury in a trial for a nonpetty offense deprives an
accused of his right to trial by jury. While readily
Page 441 U. S. 137
admitting that the line between six members and five was not
altogether easy to justify, at least five Members of the Court
believed that reducing a jury to five persons in nonpetty cases
raised sufficiently substantial doubts as to the fairness of the
proceeding and proper functioning of the jury to warrant drawing
the line at six.
See 435 U.S. at
435 U. S. 239
(opinion of BLACKMUN, J.);
id. at
435 U. S.
245-0246 (opinion of POWELL, J.). [
Footnote 10]
We thus have held that the Constitution permits juries of less
than 12 members, but that it requires at least 6.
Ballew v.
Georgia, supra; William v. Florida, supra. And we have
approved the use of certain nonunanimous verdicts in cases
involving 12-person juries.
Apodaca v. Oregon, supra,
(12);
Johnson v. Louisiana, 406 U.
S. 356 (1972) (9-3). These principles are not questioned
here. Rather, this case lies at the intersection of our decisions
concerning jury size and unanimity. As in
Ballew, we do
not pretend the ability to discern
a priori a bright line
below which the number of jurors participating in the trial or in
the verdict would not permit the jury to function in the manner
required by our prior cases. 435 U.S. at
435 U. S.
231-232 (opinion of BLACKMUN, J.);
id. at
435 U. S.
245-246 (opinion of POWELL, J.);
see Williams v.
Florida, supra at
399 U. S. 100.
But having already departed from the strictly historical
requirements of jury trial, it is inevitable that lines must be
drawn somewhere if the substance of the jury trial right is to be
preserved.
Cf. Scott v. Illinois, 440 U.
S. 367,
440 U. S. 372
(1979);
Baldwin v. New York, 399 U. S.
66,
399 U. S. 72-73
(1970) (plurality opinion);
Duncan v. Louisiana, 391 U.S.
at
391 U. S. 161.
Even the State concedes as much. Tr. of Oral Arg. 26-27.
Page 441 U. S. 138
This line-drawing process,
"although essential, cannot be wholly satisfactory, for it
requires attaching different consequences to events which, when
they lie near the line, actually differ very little."
Duncan v. Louisiana, supra at
391 U. S. 161;
see Baldwin v. New York, supra at
399 U. S. 72-73
(plurality opinion). However, much the same reasons that led us in
Ballew to decide that use of a five-member jury threatened
the fairness of the proceeding and the proper role of the jury lead
us to conclude now that conviction for a nonpetty offense by only
five members of a six-person jury presents a similar threat to
preservation of the substance of the jury trial guarantee, and
justifies our requiring verdicts rendered by six-person juries to
be unanimous. [
Footnote 11]
We are buttressed in this view by the current jury practices of the
several States. It appears that, of those States that utilize
six-member juries in trials of nonpetty offenses, only two,
including Louisiana, also allow nonunanimous verdicts. [
Footnote 12] We think that this
near-uniform judgment of the Nation provides a useful guide in
delimiting the line between those jury practices that are
constitutionally permissible and those that are not.
See
Baldwin v. New York, supra at
399 U. S. 70-72
(plurality opinion);
Duncan v. Louisiana, supra at
391 U. S. 161;
District of Columbia v. Clawans, 300 U.
S. 617,
300 U. S. 628
(1937).
The State seeks to justify its use of nonunanimous six-
Page 441 U. S. 139
person juries on the basis of the "considerable time" savings
that it claims results from trying cases in this manner. It asserts
that, under its system, juror deliberation time is shortened and
the number of hung juries is reduced. Brief for Respondent 14.
Undoubtedly, the State has a substantial interest in reducing the
time and expense associated with the administration of its system
of criminal justice. But that interest cannot prevail here. First,
on this record, any benefits that might accrue by allowing five
members of a six-person jury to render a verdict, as compared with
requiring unanimity of a six-member jury, are speculative, at best.
More importantly, we think that, when a State has reduced the size
of its juries to the minimum number of jurors permitted by the
Constitution, the additional authorization of nonunanimous verdicts
by such juries sufficiently threatens the constitutional principles
that led to the establishment of the size threshold that any
countervailing interest of the State should yield.
The judgment of the Louisiana Supreme Court affirming the
conviction of petitioner Burch is, therefore, reversed, and its
judgment affirming the conviction of petitioner Wrestle, Inc., is
affirmed. The case is remanded to the Louisiana Supreme Court for
proceedings not inconsistent with this opinion.
It is so ordered.
[
Footnote 1]
Article I, § 17, of the Louisiana Constitution provides:
"A criminal case in which the punishment may be capital shall be
tried before a jury of twelve persons, all of whom must concur to
render a verdict. A case in which the punishment is necessarily
confinement at hard labor shall be tried before a jury of twelve
persons, ten of whom must concur to render a verdict. A case in
which the punishment may be confinement at hard labor or
confinement without hard labor for more than six months shall be
tried before a jury of six persons, five of whom must concur to
render a verdict. The accused shall have a right to full
voir
dire examination of prospective jurors and to challenge jurors
peremptorily. The number of challenges shall be fixed by law.
Except in capital cases, a defendant may knowingly and
intelligently waive his right to a trial by jury."
Article 779(A), La.Code Crim.Proc.Ann. (West Supp. 1979),
states:
"A defendant charged with a misdemeanor in which the punishment
may be a fine in excess of five hundred dollars or imprisonment for
more than six months shall be tried by a jury of six jurors, five
of whom must concur to render a verdict."
[
Footnote 2]
The Sixth Amendment provides:
"In all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor; and to have the
Assistance of Counsel for his defense."
In
Duncan v. Louisiana, 391 U.
S. 145 (1968), the Court held that the right of trial by
jury was a fundamental right applicable to the States by virtue of
the Fourteenth Amendment.
[
Footnote 3]
At the time of petitioners' trial, the maximum penalty
prescribed for the crime of obscenity was a fine of not less than
$1,000, or imprisonment in the parish prison for not more than one
year, or both. La.Rev.Stat.Ann. § 14:106(G) (West 1974).
[
Footnote 4]
Because Wrestle, Inc., was convicted by a unanimous six-person
jury, it lacks standing to challenge the constitutionality of the
provisions of Louisiana law allowing conviction by a nonunanimous
six-member jury.
See, e.g., Duke Power Co. v. Carolina
Environmental Study Group, Inc., 438 U. S.
59,
438 U. S. 72
(1978);
Arlington Heights v. Metropolitan Housing Dev.
Corp., 429 U. S. 252,
429 U. S.
260-261 (1977);
United States v. Raines,
362 U. S. 17,
362 U. S. 21
(1960). And in
Williams v. Florida, 399 U. S.
78 (1970), this Court held that conviction by a
unanimous six-person jury does at violate an accused's right to
trial by jury. Accordingly, Wrestle, Inc., has not been denied its
constitutional right to trial by jury.
[
Footnote 5]
Although petitioners did not raise the jury trial issue in the
trial court, the Louisiana Supreme Court held that, under state
law, it could consider petitioners' claim, and it disposed of that
claim.
State v. Wrestle, Inc., 360 So.
2d 831, 837 (1978). The federal question therefore is properly
raised in this Court.
See New Jersey v. Portash,
440 U. S. 450,
440 U. S. 455
(1979);
Jenkins v. Georgia, 418 U.
S. 153,
418 U. S. 157
(1974);
Raley v. Ohio, 360 U. S. 423,
360 U. S. 436
(1959).
[
Footnote 6]
In
Duncan v. Louisiana, supra at
391 U. S. 159,
the Court reaffirmed the long-established view that "petty
offenses" may be tried without a jury, and in
Baldwin v. New
York, 399 U. S. 66,
399 U. S. 69
(1970), the plurality opinion of MR. JUBTICE WHITE concluded that
"no offense can be deemed
petty' for purposes of the right to
trial by jury where imprisonment for more than six months is
authorized." See Ballew v. Georgia, 435 U.
S. 223, 435 U. S. 229
(1978) (opinion of BLACKMUN, J.). Because the Louisiana obscenity
statute under which petitioners were charged authorized
imprisonment for more than six months, see n 3, supra, petitioners were
entitled under the Constitution to be tried by a jury.
[
Footnote 7]
The Court also believed that a jury of 12 was neither more
reliable as a factfinder, more advantageous to the defendant, nor
more representative of the variety of viewpoints in the community
than a jury of 6. 399 U.S. at
399 U. S.
100-102.
[
Footnote 8]
Johnson v. Louisiana, 406 U. S. 356
(1972), was decided the same day as
Apodaca v. Oregon and
held that conviction by a 9-3 verdict in certain noncapital cases
did not violate the Due Process Clause for failure to satisfy the
reasonable doubt standard. Unlike
Apodaca, Johnson
involved a trial held prior to
Duncan v. Louisiana,
391 U. S. 145
(1968), which the Court, in
DeStefano v. Woods,
392 U. S. 631
(1968), held was not to be applied retroactively, and therefore did
not implicate the Sixth Amendment as applied to the States through
the Fourteenth. 406 U.S. at
406 U. S.
358.
[
Footnote 9]
MR. JUSTICE POWELL concurred in the judgment in
Apodaca v.
Oregon, 406 U.S. at
406 U. S. 366.
He concluded that, although Sixth Amendment history and precedent
required jury unanimity in federal trials, the Due Process Clause
of the Fourteenth Amendment does not incorporate all the elements
of a jury trial required by the Sixth Amendment, and does not
prevent Oregon from permitting conviction by a verdict of 10-2.
Id. at
406 U. S.
369-380.
[
Footnote 10]
MR. JUSTICE WHITE concurred in the judgment on the ground that a
jury of fewer than six persons would not satisfy the fair
cross-section requirement of the Sixth and Fourteenth Amendments.
Ballew v. Georgia, 435 U.S. at
435 U. S. 245.
See also id. at
435 U. S. 246
(opinion of BRENNAN, J., joining opinion of BLACKMUN, J., insofar
as it holds that the Sixth and Fourteenth Amendments require juries
in criminal trials to contain more than five persons).
[
Footnote 11]
We, of course, intimate no view as to the constitutionality of
nonunanimous verdicts rendered by juries comprised of more than six
members.
[
Footnote 12]
Of the 25 States that apparently allow six-person juries in the
trials of at least some nonpetty cases, only Louisiana and Oklahoma
appear to permit a verdict to be rendered by a less than unanimous
jury.
See La.Const., Art. I, § 17; La.Code Crim.Proc.Ann.,
Art. 779(A) (West Supp. 1979); Okla.Const., Art. 2, § 19;
Okla.Stat., Tit. 22, § 601 (1971),
Houchin v. State, 97
Okla.Cr. 268, 262 P.2d 173 (1953);
Pierce v. State, 96
Okla.Cr. 76, 248 P.2d 633 (1952). The Constitution of the State of
Idaho allows, but does not rcquire, nonunanimous six-person juries
in certain circumstances; however, the Idho criminal rules appear
to requirc verdicts of six-person juries to be unanimous.
See Idaho Const., Art. I, § 7; Idaho Rule Crim. Proc.
31(a).
MR. JUSTICE STEVENS, concurring.
Even though I have not changed the views I expressed in
Marks v. United States, 430 U. S. 188,
430 U. S. 198;
Smith v. United States, 431 U. S. 291,
431 U. S.
311-321; and
Splawn v. California, 431 U.
S. 595,
431 U. S.
602-605, I do not believe that I have the authority to
vote to modify the judgment below on a ground not fairly subsumed
within the question presented by the petition for certiorari.* That
question is whether conviction by a nonunanimous
Page 441 U. S. 140
six-person jury of a nonpetty offense violates the Sixth and
Fourteenth Amendments. Because this is the only question addressed
by the Court, and because I agree with the Court's resolution of
this question, I join its opinion.
*
See this Court's Rule 23(1)(C) ("Only the questions
set forth in the petition or fairly comprised therein will be
considered y the court");
Mazer v. Stein, 347 U.
S. 201,
347 U. S. 208,
and n. 6;
General Talking Pictures Corp. v. Western Electric
Co, 304 U. S. 175,
304 U. S.
177-179.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR
JUSTICE MARSHALL join, concurring in part and dissenting in
part.
For the reasons set forth in
Johnson v. Louisiana,
406 U. S. 356,
406 U. S. 380
(Douglas, J., dissenting),
406 U. S. 395 (BRENNAN, J., dissenting),
406 U. S. 397
(STEWART, J., dissenting),
406 U. S. 399 (MARSHALL, J., dissenting) (1972), and
Apodaca v. Oregon, 406 U. S. 404,
406 U. S. 414
(1972) (STEWART, J., dissenting), I agree that petitioner Burch's
criminal conviction by a nonunanimous jury verdict must be reversed
as a violation of his right to jury trial guaranteed by the Sixth
and Fourteenth Amendments. However, I dissent from the Court's
disposition insofar as it authorizes a retrial of petitioner Burch
and affirms the conviction of petitioner Wrestle, Inc. Petitioners
were convicted on charges of exhibiting allegedly obscene motion
pictures in violation of La.Rev.Stat.Ann. § 14:106(A)(3) (West
1974). That statute, in my view, is overbroad, and therefore
facially unconstitutional.
See Paris Adult Theatre I v.
Slaton, 413 U. S. 49,
413 U. S. 73
(1973) (BRENNAN, J., dissenting). Accordingly, I would reverse the
convictions of both petitioners and declare that the
unconstitutionality of the statute precludes a constitutional
conviction of either for its alleged violation.
See Ballew v.
Georgia, 435 U. S. 223,
435 U. S. 246
(1978) (opinion of BRENNAN, J.).