1. New York Judiciary Law § 749-aa, 29 McKinney's L. N.Y. pp.
511-515, providing for the administrative selection of a special or
"blue ribbon" jury panel from the general jury panel in counties of
one million or more inhabitants and the use in certain classes of
cases of juries drawn from this special panel, does not, on its
face, deny defendants in criminal cases due process of law or equal
protection of the laws contrary to the Fourteenth Amendment. Pp.
332 U. S.
270-272.
(a) This Court cannot find it constitutionally forbidden to set
up in a metropolis with congested court calendars administrative
procedures in advance of trial to eliminate from the jury panel
those who, in a large proportion of cases, would be rejected by the
court after its time had been taken in examination to ascertain the
disqualifications. P.
332 U. S.
271.
(b) These are local matters with which local authority must and
does have considerable latitude to cope, for they affect the
administration of justice which is a local responsibility. P.
332 U. S.
271.
(c) There is nothing in the standards prescribed for the
selection of the special panel which, on its face, is prohibited by
the Constitution. Pp.
332 U. S.
267-268,
332 U. S.
270-272.
2. Petitioners have not sustained the burden of showing that
their trial by a jury drawn from such a special panel denied them
equal protection of the laws. Pp.
332 U. S.
272-286.
(a) It is not proven that laborers, operatives, craftsmen,
foremen, and service employees were systematically, intentionally,
and deliberately excluded from the special panel. Pp.
332 U. S.
273-277.
(b) Nor is it proven that women were so excluded -- especially
in view of the fact that three women talesmen were examined and one
served on the jury in this case. Pp.
332 U. S.
277-278.
(c) The elimination from the special panel of persons who, in
replying to a questionnaire, expressed a preference to serve during
certain months is of no constitutional significance, and of no
prejudice to petitioners. P.
332 U. S.
278.
Page 332 U. S. 262
(d) Petitioners have not sustained the burden of proving that,
in 1945, when they were tried, the special panel was so composed as
to be more prone to convict than the general panel. Pp.
332 U. S.
278-286.
3. The statute providing for the special jury does not violate
the Due Process Clause of the Fourteenth Amendment.
Glasser v.
United States, 315 U. S. 60;
Thiel v. Southern Pacific Co., 328 U.
S. 217;
Ballard v. United States, 329 U.
S. 187, distinguished. Pp.
332 U. S.
286-296.
(a) There being no constitutional requirement that juries shall
include women, their partial exclusion from the general and special
jury panels (by making their service voluntary, instead of
compulsory) was not a denial of due process. Pp.
332 U. S.
289-290.
(b) A lack of proportional representation of an economic class
comprising laborers, craftsmen, and service employees, which does
not result from an intentional and purposeful exclusion of any
class but from tests of intelligence, citizenship and understanding
of English applied alike to all prospective jurors, does not
violate the Due Process Clause. Pp.
332 U. S.
290-294.
4. In considering whether the statute is administered so as to
produce unconstitutional results, this Court must examine the
evidence and reach its own conclusions as to the facts. P.
332 U. S.
272.
5. Since Congress has considered the specific application of the
Fourteenth Amendment to the state jury systems and has found only
discriminations on account of "race, color, or previous condition
of servitude" to deserve general legislative condemnation (8 U.S.C.
§ 44), one who would have the judiciary intervene on other grounds
must comply with the exacting requirements of proving clearly that
in his own case the procedure has gone so far afield that its
results are a denial of equal protection or due process. Pp.
332 U. S.
282-284.
6. It is fundamental in questioning the composition of a jury
that a mere showing that a class was not represented in a
particular jury is not enough; there must be a clear showing that
its absence was caused by discrimination. P.
332 U. S.
284.
7. When discrimination of an unconstitutional kind in the
selection of a jury is alleged, the burden of proving it purposeful
and intentional is on the defendant. P.
332 U.S. 285.
8. In considering whether the method of selecting a jury
violates the Equal Protection Clause of the Fourteenth Amendment,
the inquiry is whether defendants received less favorable treatment
than others. P.
332 U.S.
285.
9. This Court may exert a supervisory power over federal
proceedings with greater freedom to reflect its notions of good
policy than it
Page 332 U. S. 263
may constitutionally exert over proceedings in state courts, and
these expressions of policy are not necessarily embodied in the
concept of due process. P.
332 U. S. 287.
10. The commandments of the Sixth and Seventh Amendments, which
require jury trial in criminal and certain civil cases, are not
made applicable to the states by the Due Process Clause of the
Fourteenth Amendment. P.
332 U. S.
288.
11. Due process requires a real hearing by a tribunal unbiased
by interest in the event; but an accused is not entitled to a
set-up that will give a chance of escape after he is properly
proven guilty. He has no constitutional right to friends on the
jury. Pp.
332 U. S.
288-289.
12. The state's right to apply tests of intelligence,
citizenship, and understanding of English in selecting jurors is
not open to doubt, even though they disqualify a disproportionate
number of manual workers. P.
332 U. S.
291.
13. This Court is unable to say that mere exclusion of jurors of
one's occupation renders a jury unconstitutional, even though the
occupation tends to give those who practice it a particular and
distinctive viewpoint. P. 292,
n 35.
14. There is some discretion left in the states to say that
persons in some occupations are more needed at their work than on
jury duty and, perhaps, that some have occupational attitudes that
make it appropriate to leave them off the list so long as an
unexceptionable list remains on call. P. 292,
n 35.
15. The function of this Court under the Fourteenth Amendment
with reference to state juries is not to prescribe procedures, but
is essentially to protect the integrity of the trial process by
whatever method the state sees fit to employ. P.
332 U. S.
294.
16. Beyond requiring conformity to standards of fundamental
fairness that have won legal recognition, this Court adheres to a
policy of self-restraint in interpreting the Fourteenth Amendment,
and will not use that Amendment to impose uniform procedures upon
the several states, whose legal systems stem from diverse sources
of law and reflect different historical influences. Pp.
332 U. S.
294-295.
17. No violation of a federal statute being alleged, a
successful challenge to this judgment under the Due Process Clause
depends on a showing that these defendants have had a trial so
unfair as to amount to a taking of their liberty without due
process of law, and such a showing has not been made. P.
332 U. S.
296.
296 N.Y. 510, 68 N.E.2d 453, affirmed.
Page 332 U. S. 264
In a state court in New York County, a special or so-called
"blue ribbon" jury impaneled pursuant to N.Y.Judiciary Law §
749-aa, 29 McKinney L. N.Y. pp. 51115, convicted petitioners of
extortion and conspiracy to extort. The Appellate Division of the
Supreme Court of New York affirmed. 270 App.Div. 261, 59 N.Y.S.2d
127. The Court of Appeals of New York affirmed. 296 N.Y. 510, 68
N.E.2d 453. This Court granted certiorari. 329 U.S. 697.
Affirmed, p.
332 U. S.
296.
MR. JUSTICE JACKSON delivered the opinion of the Court.
These cases present the same issue, a challenge to the
constitutionality of the special or so-called "blue ribbon" jury as
used by state courts in the State and County of New York.
Such a jury found Fay and Bove guilty of conspiracy to extort
and of extortion. Bove was Vice-President of the International Hod
Carriers, Building and Common Laborers' Union of America. Fay was
Vice-President of the International Union of Operating Engineers.
The City of New York awarded contracts for construction of an
extensive project known as the Delaware Water Supply system to
several large construction concerns. It was not denied that Fay and
Bove collected
Page 332 U. S. 265
from these contractors upwards of $300,000. But it was denied
that payment was induced by threats to do unlawful injury to person
or property. The defense claimed that the payments were voluntary
-- bribes, perhaps, but no extortion -- that these men were paid
merely for undertaking to assist the contractors to avoid labor
trouble, to prevent jurisdiction or unauthorized strikes, and to
"handle the labor situation," and that Fay and Bove rendered
service as agreed.
The indictment charged the crimes in seven counts. One was
dismissed by the court; the remaining six were submitted to the
jury. The jury acquitted the defendants on three of the counts,
disagreed on another, and convicted on two counts. The convictions
were affirmed on appeal by the Appellate Division of the Supreme
Court, [
Footnote 1] which
reviews both law and fact, [
Footnote 2] and by the Court of Appeals. [
Footnote 3] No federal question is raised as
to the merits of the finding of guilt, and we are to assume that
the convictions were warranted by the evidence and, except for
questions as to the special jury, were regular. While there was
challenge to the panel from which this jury was drawn, on ground of
denial of federal due process and equal protection, each individual
juror was accepted by the defendants without challenge for cause.
The challenge to the special jury panel was not discussed by either
of the appellate courts of the State, but the federal questions
were sufficiently and timely raised throughout, and were overruled
by all state courts. A dual system of juries present easy
possibilities of violation of the Fourteenth Amendment, and we took
these cases by certiorari to examine the charges of
unconstitutionality. 329 U.S. 697.
Page 332 U. S. 266
The question is whether a warranted conviction by a jury
individually accepted as fair and unbiased should be set aside on
the ground that the makeup of the panel from which they were drawn
unfairly narrows the choice of jurors and denies defendants due
process of law or equal protection of the laws in violation of the
Fourteenth Amendment to the Federal Constitution. If answered in
the affirmative, it means that no conviction by these special
juries is constitutionally valid, and all would be set aside if the
question had been properly raised at or before trial.
The defendants raise no question as to the constitutionality of
the general statutes of New York which prescribe the
qualifications, disqualifications, and exemptions for ordinary jury
service. Neither is any question raised as to the administration of
these general statutes by which the population of New York County,
numbering some 1,800,000, is sifted to produce a general jury panel
of about 60,000, unless it be that there is discrimination against
women. [
Footnote 4] It is from
this panel that defendants insist, apart from any objection they
may have as to improper exclusion of women even from the general
panel, they had a constitutional right to have their trial jury
drawn. The statutes advanced as a standard may be roughly
summarized:
To qualify as a juror, a person must be an American citizen and
a resident of the county; not less than 21 nor more than 70 years
old; the owner or spouse of an owner of property of the value of
$250; in possession of his or her natural faculties and not infirm
or decrepit; not convicted of a felony or a misdemeanor involving
moral turpitude; intelligent; of sound mind and good character;
Page 332 U. S. 267
well informed; able to read and write the English language
understandingly. [
Footnote 5]
From those qualified, the following classes are exempt from
service: clergymen, physicians, dentists, pharmacists, embalmers,
optometrists, attorneys, members of the Army, Navy, or Marine
Corps, or of the National Guard or Naval Militia, firemen,
policemen, ship's officers, pilots editors, editorial writers,
sub-editors, reporters and copy readers. [
Footnote 6]
Women are equally qualified with men, [
Footnote 7] but, as they also are granted exemption,
[
Footnote 8] a woman drawn may
serve or not, as she chooses.
The attack is focused upon the statutes and sifting procedures
which shrink the general panel to the special or "blue ribbon"
panel of about 3,000.
Special jurors are selected from those accepted for the general
panel by the county clerk, but only after each has been subpoenaed
for personal appearance and has testified under oath as to his
qualification and fitness. [
Footnote 9] The statute prescribes standards for their
selection by declaring ineligible and directing elimination of
these classes: (1) All who have been disqualified or who claim and
are allowed exemption from general service. (2) All who have been
convicted of a criminal offense, or found guilty of fraud or
misconduct by judgment of any civil court. (3) All who possess such
conscientious opinions with regard to the death penalty as would
preclude their finding a defendant guilty if the crime charged
by
Page 332 U. S. 268
punishable with death. (4) All who doubt their ability to lay
aside an opinion or impression formed from newspaper reading or
otherwise, or to render an impartial verdict upon the evidence
uninfluenced by any such opinion on impression or whose opinion of
circumstantial evidence is such as would prevent their finding a
verdict of guilty upon such evidence, or who avow such a prejudice
against any law of the State as would preclude finding a defendant
guilty of a violation of such law, or who avow such a prejudice
against any particular defense to a criminal charge as would
prevent giving a fair and impartial trial upon the merits of such
defense, or who avow that they cannot in all cases give to a
defendant who fails to testify as a witness in his own behalf the
full benefit of the statutory provision that such defendants'
neglect or refusal to testify as a witness in his own behalf shall
not create any presumption against him. [
Footnote 10]
The special jury panel is not one brought into existence for
this particular case, nor for any special class of offenses or type
of accused. It is part of the regular machinery of trial in
counties of one million or more inhabitants. In its sound
discretion, the court may order trial by special jury on
application of either party in a civil action and by either the
prosecution or defense in criminal cases. The motion may be granted
only on a showing that, "by reason of the importance or intricacy
of the case, a special jury is required" or "the issue to be tried
has been so widely commented upon . . . that an ordinary jury
cannot without delay and difficulty be obtained," or that, for any
other reason,
"the due, efficient and impartial administration of justice in
the particular case would be
Page 332 U. S. 269
advanced by the trial of such an issue by a special jury.
[
Footnote 11]"
This special jury statute is not recent, nor is the practice
under it novel. The progenitor of this statute, like it in all
pertinent respects, was enacted in 1896, but was repealed and
simultaneously reenacted in substantially its present form in 1901.
[
Footnote 12] It was soon
attacked as on its face violating the State Constitution. The claim
of one convicted by a special jury that it was an unconstitutional
body because its restrictive composition denied due process of law
was rejected by the Court of Appeals in a well considered opinion.
People v. Dunn, 157 N.Y. 528, 52 N.E. 572. The attack then
was made from the opposite direction. One convicted by an ordinary
jury claimed that it was an unconstitutional body. This claim that
the special panel had withdrawn twenty-five hundred "men of
presumably superior intelligence," 162 N.Y. at 362, 56 N.E. at 759,
too, was rejected by the Court of Appeals.
People v.
Meyer, 162 N.Y. 357, 56 N.E. 758.
Then, in 1901, an attack on the constitutionality of the statute
was rejected by this Court. One Hall had been convicted of murder
by a special jury and sentenced to death. He sued out a writ of
habeas corpus which was denied below. He challenged the special
panel and claimed that his conviction by its verdict was a denial
of due process of law and of equal protection of the laws in
violation of the Fourteenth Amendment because the jury was
"taken from a particular body of citizens and not from the
general body of the county as was provided in all cases wherein
such special jury was not drawn."
This Court affirmed,
Hall v. Johnson, 186 U.S. 480,
citing,
Page 332 U. S. 270
among other authorities,
Brown v. New Jersey,
175 U. S. 172,
which upheld a state statute for a "struck jury." [
Footnote 13]
Since these decision, the special jury has been in continuous
use in New York County in important cases. The District Attorney
cites over one hundred murder convictions, on verdict of the
special jury, considered by the Court of Appeals which affirmed
judgments of death. We are asked, however, to reconsider the
question and, in the light of more recent trends of decision and of
particular facts about the present operation of the jury system not
advanced in support of the argument in earlier case, to disapprove
the special jury system.
We fail to perceive on its face any constitutional offense in
the statutory standards prescribed for the special panel. The Act
does not exclude, or authorize the clerk to exclude, any person or
class because of race, creed, color, or occupation. It imposes no
qualification of an economic nature beyond that imposed by the
concededly valid general panel statute. Each of the grounds of
elimination is reasonably and closely related to the juror's
suitability for the kind of service the special panel requires or
to his fitness to judge the kind of cases for which it is most
frequently utilized. Not all of the grounds of elimination would
appear relevant to the issues of the present case. But we know of
no right of defendants to have a specially constituted panel which
would include all persons who might
Page 332 U. S. 271
be fitted to hear their particular and unique case. This panel
is for service in a wide variety of cases, and its eliminations
must be judged in that light. We cannot overlook that one of the
features which has tended to discredit jury trials is interminable
examination and rejection of prospective jurors. In a metropolis
with notoriously congested court calendars, we cannot find it
constitutionally forbidden to set up administrative procedures in
advance of trial to eliminate from the panel those who, in a large
proportion of cases, would be rejected by the court after its time
had been taken in examination to ascertain the disqualifications.
Many of the standards of elimination which the clerk is directed to
apply in choice of the panel are those the court would have to
apply to excuse a juror on challenge for cause.
These are matters with which local authority must and does have
considerable latitude to cope, for they affect the administration
of justice, which is a local responsibility. For example, in this
case, the time of the trial court and its entire retinue of
attendants was taken while eighty-nine prospective jurors were
examined. How many more would have been examined if the clerk had
not already eliminated those who admit that they would not give
defendants benefit of the rule that their neglect or refusal to
testify in their own behalf would not create a presumption against
them? Neither of these defendants saw fit to take the witness
stand. The defendants themselves have complained of the exceptional
publicity given to the charges in the case. How many more jurors
would have been examined if the clerk had not already eliminated
those who felt themselves subject to influence by publicity? These
are practical matters in administering justice in which we will
take care not to hamstring local authority by artificial or
doctrinaire requirements.
Page 332 U. S. 272
It has consistently been held that a jury is not rendered
constitutionally invalid by failure of the statute to set forth any
standards for selection.
Murray v. Louisiana, 163 U.
S. 101,
163 U. S. 108;
Franklin v. South Carolina, 218 U.
S. 161,
218 U. S.
167-168;
Akins v. Texas, 325 U.
S. 398,
325 U. S. 403;
see also Ex parte Virginia, 100 U.
S. 339,
100 U. S. 348.
We find nothing in the standards New York has prescribed which, on
its face, is prohibited by the Constitution. There remain, however,
more serious questions as to whether the special jury Act has been
so administered as to deny due process to the defendants and
whether the dual system of jury panels as administered denied equal
protection of the laws.
As to the actual results of application of the statute, the
litigants are in controversy. The New York courts, doubtless
influenced by the fact that long ago they had upheld similar
statutes, made no findings of fact and wrote no opinion on the
subject. It is to be regretted that we must deal with questions of
fact without aid of findings by the courts whose experience with
the system and proximity to the local conditions with which the
special jury customs are so interwoven would entitle their findings
to very great weight. We would, in any case, be obliged on a
constitutional question to reach our own conclusions, after full
allowance of weight to findings of the state courts, and in this
case must examine the evidence.
Norris v. Alabama,
294 U. S. 587,
294 U. S. 590;
Lisenba v. California, 314 U. S. 219,
314 U. S.
237-238;
Ashcraft v. Tennessee, 322 U.
S. 143,
322 U. S.
148.
The allegations of fact upon which defendants ask us to hold
these special panels unconstitutional come to three: (1) That
laborers, operatives, craftsmen, foremen, and service employees
were systematically, intentionally, and deliberately excluded from
the panel. (2) That
Page 332 U. S. 273
women were in the same way excluded. (3) That the special panel
is so composed as to be more prone to convict than the general
panel.
(1) The proof that laborers and such were excluded consists of a
tabulation of occupations as listed in the questionnaires filed
with the clerk. The table received in evidence is set out in the
margin. [
Footnote 14] It is
said in criticism of this list that it shows the industry in which
these
Page 332 U. S. 274
persons work, rather than whether they are laborers or
craftsmen; that is, "mechanics" may be and probably are also
laborers; "bankers" may be clerks. Certainly the tabulation does
not show the relation of these jurors to the industry in which they
were classified, as, for example, whether they were owners or
financially interested, or merely employees. It does not show
absence or exclusion of wage earners or of union members, although
none listed themselves as "laborers," for several of these classes
are obviously of the employee, rather than the entrepreneur
character. One of petitioners' tables showed that 38% of the
special panel were "clerical, sales, and kindred workers." Three of
those examined as jurors in this case were members of labor unions.
Two were peremptorily challenged by the People, and the one
accepted by the prosecution was challenged by the defense.
It is sought to give significance to this exhibit showing the
breakdown into occupations of some 2,700 special jurors, however,
by reference to a tabulation of occupations of some 920,000
employees and persons seeking employment in Manhattan. The
comparison is said to show a great disparity between the percentage
of jurors of each occupation represented on the jury list of 1945
and the occupational distribution of the number of employed persons
or experienced persons seeking employment in
Page 332 U. S. 275
Manhattan in 1940. This table was not put in evidence, but is
reproduced in the margin. [
Footnote 15] Apart from the discrepancy of five years in
the dates of the data and the
Page 332 U. S. 276
differences in classification of occupations, the two tables do
not afford statistical proof that the jury percentages are the
result of discrimination. Such a conclusion would be justified only
if we knew whether the application of the proper jury standards
would affect all occupations alike, of which there is no evidence
and which we regard as improbable. The percentage of persons
employed or seeking employment in each occupation does not
establish even an approximate ratio for those of each occupation
that should appear in a fairly selected jury panel. The former is
not limited, as the latter must be, to those over 21 or under 70
years of age. It is common knowledge that many employed and seekers
of employment in New York are not, as jurors must be, citizens of
the United States. How many could not meet the property
qualifications? How many could not read and write the English
language understandingly? It is only after effect is given to these
admittedly constitutional requirements that we would have any
figures which determined or even suggested the effect of the
additional disqualifications imposed on special jurors.
An occupational comparison of the special panel with the general
panel might afford some ground for an opinion on the effect of the
particular practices complained of in the composition of the
special panel. But no such comparison is offered. Petitioners' only
statement as to the comparative makeup of the general and special
panels is as follows:
"While the defect of discrimination against women, particularly
those who are not members of so-called 'civic conscious'
organizations, permeates both the general and special juries, there
is no evidence whatever that laborers, operatives, service
employees, craftsmen, and foremen, are excluded from the general
jury panel."
What is more to the point is that petitioners adduced no
Page 332 U. S. 277
evidence whatever that the occupational composition of the
general panel is substantially different from that of the special.
If they are the same, then petitioner's assertion that Question 23,
referred to below, somehow separates the rich from the poor is
obviously without merit. It is not unlikely that the requirements
of citizenship, property, and literacy disqualify a greater
proportion of laborers, craftsmen, and service employees than of
some other classes. Those who are illiterate or, if literate in
their own, are unable to speak or write the English language,
naturally find employment chiefly in manual work. It is impossible
from the defendants' evidence in this case to find that the
distribution of the jury panel among occupations is not the result
of the application of legitimate standards of disqualification.
On the other hand, the evidence that there has been no
discrimination as to occupation in selection of the panel, while
from interested witnesses, whose duty it was to administer the law,
is clear and positive, and is neither contradicted nor improbable.
The testimony of those in charge of the selection, offered by the
defendants themselves, is that, without occupational
discrimination, they applied the standards of the statute to all
whom they examined. We are unable to find that this evidence is
untrue.
(2) As to the exclusion of women, it will be remembered that the
law of New York gives to women the privilege to serve, but does not
impose service as a duty. It is said to have been found impractical
to compel large numbers of women, who have an absolute exemption,
to come to the clerk's office for examination, since they so
generally assert their exemption. Hence, only those who volunteer
or are suggested as willing to serve by other women or by
organizations, including the League of Women Voters, are
Page 332 U. S. 278
subpoenaed for examination. Some effort is made by the officials
also to induce women to volunteer. But the evidence does not show
that women are excluded from the special jury. In this case, three
women talesmen were examined. One was pronounced "satisfactory" by
both sides, and served on the jury.
As to both women and men, it is complained that eliminations
resulted unfairly from use of a questionnaire, which asked, "What
months of the year between October 1 and June 30 would you prefer
to serve (Name two or more months)." Those who stated a preference,
and they were many, were excluded from the special panel although
they continued eligible for the general panel. The reason given for
this is that service on the general panel can be adjusted to such
preferences, while the special panel, because of the nature of the
cases tried before it, may require service at any time and for long
periods. We think the phrasing of this question is less than candid
in view of this purpose. But we find no evidence that it operates
more misleadingly on women than on men, or on one occupation or
class than on others. While it does not commend itself, it appears
to be an administrative ineptitude of no constitutional
significance and of no prejudice to these defendants.
(3) A more serious allegation against the special jury panel is
that it is more inclined than the general panel to convict.
Extensive studies have been made by the New York State Judicial
Council which is under the duty of continuous study of the
procedures of the courts and of making recommendations for
improvement to the Legislature. [
Footnote 16] It is on studies and criticisms by this
official body that petitioners base their charge here that the
special jury is a convicting jury in an unconstitutional sense.
Page 332 U. S. 279
In 1937, the Council recommended abolition of struck juries,
[
Footnote 17] foreign
juries, [
Footnote 18] and
special juries. [
Footnote
19] It said that
"A well administered ordinary jury system should produce jurors
of as high calibre for every action as the special jury system
attempts to provide in exceptional cases. [
Footnote 20]"
The recommendation was followed by the Legislature except as to
special juries. In 1938, the Judicial Council renewed its
recommendation as to these. It summarized that its data "indicate
that special juries are prone to convict." [
Footnote 21] In a study of certain types of
homicide cases, it found that, in 1933 and 1934, special juries
convicted in eighty-three percent and eighty-two percent of the
cases, while ordinary juries those years convicted in forty-three
percent and thirty-seven percent, respectively. It reported
that
"The Judicial Council believes that every petit jury should be
of uniformly high calibre and capable of giving a fair trial in all
cases. To attain this goal, the ordinary jury, as now provided, may
be in need of improvement. It is, however, unjust, and should be
unnecessary, to select supposedly
Page 332 U. S. 280
special juries in specific cases. [
Footnote 22]"
The Council next year reported that the general panel had not
been considered adequate, largely because in its selection the
standards of the statute had not been followed, and that a complete
reexamination of the general panel was undertaken. [
Footnote 23] From time to time, the Council
renewed its recommendation. In 1945, it proposed that the special
jury "be abolished as unnecessary and undesirable." It said,
"It is undisputed that the revised jury system for New York City
recommended by the Judicial Council and in operation since 1940 has
succeeded in improving the quality of jurors generally by applying
to all jurors the high standards which formerly were required only
of special jurors. Thus, the necessity for special jurors no longer
exists. [
Footnote 24]"
While the Judicial Council has pointed out and investigated the
different conviction ratios, it has at no time suggested that the
special jury has been inclined to convict except where conviction
was warranted. New York extends an appeal on law and fact as matter
of right. [
Footnote 25] If
there were a tendency to convict improperly, the Judicial Council,
which includes the Chief Judge of the Court of Appeals and the
Presiding Justice of the Appellate Division, which courts review
these cases, would know it. Despite the Council's desire to abolish
this jury, no such reasons were ever as signed. No statistics are
produced to show that special juries have been more often reversed
on the facts than ordinary ones. Of course, it would be impossible
for us to say, even were we to examine the cases in detail, whether
the difference in percentage of
Page 332 U. S. 281
convictions indicated a too great readiness to convict on the
part of special juries or a too great readiness to acquit on the
part of ordinary juries, or whether the disparity reflected a
difference between the ordinary case and those selected for special
jury trial, rather than a reflection of an attitude on the part of
either panel. It may result from the greater attention and better
counsel which the prosecution gives to these important cases.
These defendants were convicted March 15, 1945, when the
statistics offered here as to relative propensity of the two juries
to convict were more than ten years old, and when the conditions
which may have produced the discrepancy in ratio of convictions had
long since been corrected.
The evidence in support of these objections may well, as the
Judicial Council thought, warrant a political or social judgment
that this special panel in 1945 was "unnecessary and undesirable,"
and that the Legislature should abolish it. But it is quite another
matter to say that this Federal Court has a mandate from the
Constitution to disable the special jury by setting aside its
convictions. The great disparity between a legislative policy or a
political judgment, on the one hand, and a constitutional or legal
judgment, on the other, finds striking illustration in the position
taken by the highest judicial personages in New York State who
joined in the recommendation to abolish the special jury.
Two members [
Footnote 26]
of the Council who joined in proposing legislation to abolish the
dual system sat in this case and abstained from putting their
legislative recommendation into a court decision -- they sustained
as constitutional the system they would abolish as matter of
policy. Our function concerns only constitutionality, and we turn
to
Page 332 U. S. 282
the bearing of federal constitutional provisions on the legal
issues.
It is not easy, and it should not be easy, for defendants to
have proceedings set aside and held for naught on constitutional
grounds when they have accepted as satisfactory all of the
individual jurors who sat in their case, the jury exercised such
discriminating and dispassionate judgment as to acquit them on
three of the five counts submitted, and their conviction on a full
judicial review of the facts and law has been found justified. This
Court has long dealt, and must continue to deal, with these
controversies from state courts with self-imposed restraints
intended to protect itself and the state against irresponsible
exercise of its unappealable power.
While this case does not involve any question as to exclusion of
Negroes or any other race, the defendants rely largely upon a
series of decisions in which this Court has set aside state court
convictions of Negroes because Negroes were purposefully and
completely excluded from the jury. However, because of the long
history of unhappy relations between the two races, Congress has
put these cases in a class by them selves. The Fourteenth
Amendment, in addition to due process and equal protection clauses,
declares that "The Congress shall have power to enforce, by
appropriate legislation, the provisions of this article." So
empowered, the Congress, on March 1, 1875, enacted that
"no citizen possessing all other qualifications which are or may
be prescribed by law shall be disqualified for service as grand or
petit juror in any court of the United States, or of any State on
account of race, color, or previous condition of servitude,"
and made it a crime for any officer to exclude any citizen on
those grounds. 18 Stat. 336-37, 8 U.S.C. § 44. For us, the majestic
generalities of the Fourteenth Amendment are thus reduced to a
concrete statutory command when cases involve race or color which
is
Page 332 U. S. 283
wanting in every other case of alleged discrimination. This
statute was a factor so decisive in establishing the Negro case
precedents that the Court even hinted that there might be no
judicial power to intervene except in matters authorized by Acts of
Congress. Referring to the provision empowering Congress to enforce
the Fourteenth Amendment, it said that
"All of the amendments derive much of their force from this
latter provision. It is not said the
judicial power of the
general government shall extend to enforcing the prohibitions and
to protecting the rights and immunities guaranteed. It is not said
that branch of the government shall be authorized to declare void
any action of a State in violation of the prohibitions. It is the
power of Congress which has been enlarged. Congress is authorized
to
enforce the prohibitions by appropriate
legislation."
(Italics in original.)
Ex parte Virginia, 100 U.
S. 339,
100 U. S.
345.
It is significant that this Court never has interfered with the
composition of state court juries except in cases where this
guidance of Congress was applicable. In an opinion by Mr. Justice
Holmes, it unanimously made short work of rejecting a claim that
the Fourteenth Amendment prohibits the state from excluding from
the jury certain occupational groups such as lawyers, preachers,
ministers, doctors, dentists, and engineers and firemen of railroad
trains.
Rawlins v. Georgia, 201 U.
S. 638.
Cf. Brown v. New Jersey, 175 U.
S. 172.
We do not mean that no case of discrimination in jury drawing
except those involving race or color can carry such unjust
consequences as to amount to a denial of equal protection or due
process of law. But we do say that, since Congress has considered
the specific application of this Amendment to the State jury
systems and has found only these discriminations to deserve general
legislative condemnation, one who would have the judiciary
intervene on grounds not covered by statute must comply
Page 332 U. S. 284
with the exacting requirements of proving clearly that, in his
own case, the procedure has gone so far afield that its results are
a denial of equal protection or due process. [
Footnote 27]
These rules to confine our use of power to responsible limits
have been formulated and applied even in cases where the federal
race and color statute applied. Certainly they should apply with
equal, if not greater, rigor in cases that are outside the
statute.
It is fundamental in questioning the composition of a jury that
a mere showing that a class was not represented in a particular
jury is not enough; there must be a clear showing that its absence
was caused by discrimination, and in nearly all cases it has been
shown to have persisted over many years. [
Footnote 28]
Virginia v. Rives, 100 U.
S. 313,
100 U. S.
322-323;
Martin v. Texas, 200 U.
S. 316,
200 U. S.
320-321;
Thomas v. Texas, 212 U.
S. 278,
212 U. S. 282;
Smith v.
Texas, 311
Page 332 U. S. 285
U.S. 128;
Hill v. Texas, 316 U.
S. 400;
Akins v. Texas, supra. Also, when
discrimination of an unconstitutional kind is alleged, the burden
of proving it purposeful and intentional is on the defendant.
Tarrance v. Florida, 188 U. S. 519;
Martin v. Texas, 200 U. S. 316;
Norris v. Alabama, 294 U. S. 587;
Snowden v. Hughes, 321 U. S. 1,
321 U. S. 8-9;
Akins v. Texas, 325 U. S. 398,
325 U. S.
400.
Our only source of power or guidance for interfering in this
case with the state court jury system is found in the cryptic words
of the Fourteenth Amendment, unaided by any word from Congress or
any governing precedent in this Court. We consider first the clause
which forbids a state to "deny to any person within its
jurisdiction the equal protection of the laws." This prohibits
prejudicial disparities before the law. Under it, a system which
might be constitutionally unobjectionable if applied to all may be
brought within the prohibition if some have more favorable
treatment. The inquiry under this clause involves defendants'
standing before the law relative to that of others accused.
If it were proved that, in 1945, an inequality between the
special jury's record of convictions and that of the ordinary jury
continued as it was found by the Judicial Council to have prevailed
in 1933-34, some foundation would be laid for a claim of unequal
treatment. No defendant has a right to escape an existing mechanism
of trial merely on the ground that some other could be devised
which would give him a better chance of acquittal. But, in this
case, an alternative system actually was provided by the state to
other defendants. A state is not required to try all classes of
offenses in the same forum. But a discretion, even if vested in the
court, to shunt a defendant before a jury so chosen as greatly to
lessen his chances while others accused of a like offense are tried
by a jury so drawn as to be more favorable to them would hardly be
"equal protection of the laws." Perhaps
Page 332 U. S. 286
it could be shown that the difference in percentages of
convictions was not due to a difference in attitude of the jurors,
but to a difference in the cases that were selected for special
jury trial, or to a more intensive preparation and effort by the
prosecution in cases singled out for such trial. But a ratio of
conviction so disparate, if it continued until 1945, might, in
absence of explanation, be taken to indicate that the special jury
was, in contrast to its alternate, organized to convict. A
defendant could complain of this inequality even if it were shown
that a special jury court never had convicted any defendant who did
not deserve conviction.
But the defendants have failed to show by any evidence whatever
that this disparity in ratio of conviction existed in 1945 when
they were tried. They show that it ever existed only by the studies
and conclusions of the Judicial Council. The same source shows that
it was corrected before these defendants were tried. As we have
pointed out, this official body challenged the fairness of this
dual system as formerly constituted, and, as early as 1937,
declared that "[a] well considered jury system will insure an
impartial cross-section of the community on every petit jury,"
[
Footnote 29] and set out
means to achieve it. We know of no reason why we should ignore or
discredit their assurance that, by administrative improvements in
the selection of the ordinary juries, they became the substantial
equivalent of the special jury before these trials took place.
We hold, therefore, that defendants have not carried the burden
of showing that the method of their trial denied them equal
protection of the law.
The defendants' other objection is grounded on that clause of
the Fourteenth Amendment which provides, "nor shall any State
deprive any person of life, liberty, or property, without due
process of law." It comprises
Page 332 U. S. 287
objections which might be urged against any jury made up as the
special jury was, even if it were the only jury in use in the
state. It does not depend upon comparison with the jury facilities
afforded other defendants.
This Court, however, has never entertained a defendant's
objections to exclusions from the jury except when he was a member
of the excluded class.
Rawlins v. Georgia, 201 U.
S. 638,
201 U. S. 640.
Cf. Strauder v. West Virginia, 100 U.
S. 303. Relief has been held unavailable to a negro who
objected that all white persons were purposely excluded from the
grand jury that indicted him.
Haraway v. State, 203 Ark.
912, 159 S.W.2d 733. Nevertheless, we need not here decide whether
lack of identity with an excluded group would alone defeat an
otherwise well established case under the Amendment.
These defendants rely heavily on arguments drawn from our
decisions in
Glasser v. United States, 315 U. S.
60;
Thiel v. Southern Pacific Co., 328 U.
S. 217, and
Ballard v. United States,
329 U. S. 187. The
facts in the present case are distinguishable in vital and obvious
particulars from those in any of these cases. But those decisions
were not constrained by any duty of deference to the authority of
the State over local administration of justice. They dealt only
with juries in federal courts. Over federal proceedings we may
exert a supervisory power with greater freedom to reflect our
notions of good policy than we may constitutionally exert over
proceedings in state courts, and these expressions of policy are
not necessarily embodied in the concept of due process.
The due process clause is one of comprehensive generality, and,
in reducing it to apply in concrete cases, there are different
schools of thought. One is that its content on any subject is to be
determined by the content of certain relevant other Amendments in
the Bill of Rights which originally imposed restraints on only the
federal
Page 332 U. S. 288
Government but which the Fourteenth Amendment deflected against
the states. The other theory is that the clause has an independent
content apart from, and in addition to, any and all other
Amendments. This meaning is derived from the history, evolution,
and present nature of our institutions, and is to be spelled out
from time to time in specific cases by the judiciary.
To treat first of the former doctrine, it steadily has been
ruled that the commandments of the Sixth and Seventh Amendments,
which require jury trial in criminal and certain civil cases, are
not picked up by the due process clause of the Fourteenth so as to
become limitations on the states. "This court has ruled that
consistently with those amendments trial by jury may be modified by
a state or abolished altogether."
Palko v. Connecticut,
302 U. S. 319,
302 U. S. 324,
and cases there cited. Unless we are now so to change our
interpretation as to withdraw from the states the power so lately
conceded to be theirs, this would end the matter under the view
that the force of the due process clause is exhausted when it has
applied the principles of other relevant Amendments.
But this Court has construed it to be inherent in the
independent concept of due process that condemnation shall be
rendered only after a trial in which the hearing is a real one, not
a sham or pretense.
Palko v. Connecticut, 302 U.
S. 319,
302 U. S. 327;
Mooney v. Holohan, 294 U. S. 103;
Moore v. Dempsey, 261 U. S. 86. Trial
must be held before a tribunal not biased by interest in the event.
Tumey v. Ohio, 273 U. S. 510.
Undoubtedly a system of exclusions could be so manipulated as to
call a jury before which defendants would have so little chance of
a decision on the evidence that it would constitute a denial of due
process. A verdict on the evidence, however, is all an accused can
claim; he is not entitled to a set-up that will give a chance of
escape after he is properly proven guilty. Society also has a right
to a fair trial. The defendant's
Page 332 U. S. 289
right is a neutral jury. He has no constitutional right to
friends on the jury.
To establish the unfairness of this tribunal and the lack of due
process afforded to one who is being tried before it, the
defendants assert two defects in its composition: first, that it
unconstitutionally excluded women, and second, that it
unconstitutionally excluded laborers, craftsmen, service employees,
and others of like occupation, amounting in sum to the exclusion of
an economic class.
Assuming that defendants, not being women, have standing to
complain of exclusion of women from the general and special jury
panels, we are unable to sustain their objection. Approximately
7,000 women were on the general panel of 60,000, and 30 were on the
special panel. One served on the jury which convicted the
petitioners. The proportion of women on the jury panels did not
equal their proportion of the population. There may be no logical
reason for this, but there is an historical one. Until recently,
and for nearly a half-century after the Fourteenth Amendment was
adopted, it was universal practice in the United States to allow
only men to sit on juries. The first state to permit women jurors
was Washington, and it did not do so until 1911. [
Footnote 30] In 1942, only 28 states
permitted women to serve on juries, and they were still
disqualified in the other 20. Moreover, in 15 of the 28 states
which permitted women to serve, they might claim exemption because
of their sex. [
Footnote 31]
It would, in the light of this history,
Page 332 U. S. 290
take something more than a judicial interpretation to spell out
of the Constitution a command to set aside verdicts rendered by
juries unleavened by feminine influence. The contention that women
should be on the jury is not based on the Constitution, it is based
on a changing view of the rights and responsibilities of women in
our public life, which has progressed in all phases of life,
including jury duty, but has achieved constitutional compulsion on
the states only in the grant of the franchise by the Nineteenth
Amendment. We may insist on their inclusion on federal juries
where, by state law, they are eligible, [
Footnote 32] but woman jury service has not so become
a part of the textual or customary law of the land that one
convicted of crime must be set free by this Court if his state has
lagged behind what we personally may regard as the most desirable
practice in recognizing the rights and obligations of
womanhood.
The other objection which petitioners urge under the due process
clause is that the special jury panel was invalidated by exclusion
of an economic group comprising such specified classifications as
laborers, craftsmen, and service employees. They argue that the
jury panel was chosen
"with a purpose to obtain persons of conservative views, persons
of the upper economic and social stratum in New York County,
persons having a tendency to convict defendants accused of crime,
and to exclude those who might understand the point of view of the
laboring man."
As we have pointed out, there is no proof of exclusion of these.
[
Footnote 33]
Page 332 U. S. 291
At most, the proof shows lack of proportional representation,
and there is an utter deficiency of proof that this was the result
of a purpose to discriminate against this group as such. The
uncontradicted evidence is that no person was excluded because of
his occupation or economic status. All were subjected to the same
tests of intelligence, citizenship and understanding of English.
The state's right to apply these tests is not open to doubt even
though they disqualify, especially in the conditions that prevail
in New York, a disproportionate number of manual workers. A fair
application of literacy, intelligence, and other tests would hardly
act with proportional equality on all levels of life. The most that
the evidence does is to raise, rather than answer, the question
whether there was an unlawful disproportionate representation of
lower income groups on the special jury.
Even in the Negro cases, this Court has never undertaken to say
that a want of proportionate representation of groups which is not
proved to be deliberate and intentional is sufficient to violate
the Constitution.
Akins v. Texas, 325 U.
S. 398. If the Court has hesitated to require
proportional representation where but two groups need be considered
and identification of each group is fairly clear, how much more
imprudent would it be to require proportional representation of
economic classes. The occupations which are said to comprise the
economic class allegedly excluded from the special panel are
separated by such uncertain lines that the defendants' two exhibits
are based on different classifications which are numerous and
overlapping.
No significant difference in viewpoint between those allegedly
excluded and those permitted to serve has been
Page 332 U. S. 292
proved, and nothing in our experience permits us to assume it.
[
Footnote 34] It would
require large assumptions to say that one's present economic
status, in a society as fluid as ours, determines his outlook in
the trial of cases in general, or of this one in particular. There
is, of course, legitimate conflict of interest among economic
groups, but they are so many and so overlie each other that not all
can be significant. There is entrepreneur and wage-earner, consumer
and producer, taxpayer and civil servant, foreman and laborer,
white-collar worker and manual laborer. But we are not ready to
assume that these differences of function degenerate into a
hostility such that one cannot expect justice at the hands of
occupations and groups other than his own. Were this true, an
extremely rich man could rarely have a fair trial, for his class is
not often found sitting on juries. [
Footnote 35]
Nor is there any such persuasive reason for dealing with
purposeful occupational or economic discriminations, if they do
exist as presumptive constitutional violations, as would be the
case with regard to purposeful discriminations because of race or
color. We do not need to find
Page 332 U. S. 293
prejudice in these latter exclusions,
but cf. Strauder v.
West Virginia, 100 U. S. 303,
100 U. S.
306-309, for Congress has forbidden them, and a tribunal
set up in defiance of its command is an unlawful one whether we
think it unfair or not. But, as to other exclusions, we must find
them such as to deny a fair trial before they can be labeled as
unconstitutional.
There may be special cases where exclusion of laborers would
indicate that those sitting were prejudiced against labor
defendants, as where a labor leader is on trial on charges growing
out of a labor dispute. The situation would be similar to that of a
Negro who confronts a jury on which no Negro is allowed to sit. He
might very well say that a community which purposely discriminates
against all Negroes discriminates against him. But it is quite
different if we assume that "persons of conservative views" do
predominate on the special jury. Does it follow that "liberals"
would be more favorably disposed toward a defense that nominal
labor leaders were hiring out to employers to "handle" their labor
problems? Does it follow that a jury from the "upper economic and
social stratum" would be more disposed to convict those who so
undertake to serve two masters than "those who might understand the
point of view of the laboring man"? We should think it might be the
other way about, and defendants offer nothing but assertion to
convince us. Our attention, moreover, is called to federal court
records which show that Fay reported a net taxable income of over
$65,000 for the years 1940 to 1942, while Bove reported over
$39,000 for a similar period, both of them exclusive of the sums
received from the contractors and involved in these charges. These
earnings do not identify them very closely with the viewpoint of
the depressed classes. The group with which they might be most
closely identified is organized labor. But it cannot be claimed
that union members were excluded from this special panel, since
three
Page 332 U. S. 294
union members were called for examination on this particular
jury, two being rejected by the People and one by the defendants
themselves. The defendants have shown no intentional and purposeful
exclusion of any class, and they have shown none that was
prejudicial to them. They have had a fair trial, and no reason
appears why they should escape its results.
The function of this federal Court under the Fourteenth
Amendment in reference to state juries is not to prescribe
procedures, but is essentially to protect the integrity of the
trial process by whatever method the state sees fit to employ. No
device, whether conventional or newly devised, can be set up by
which the judicial process is reduced to a sham and courts are
organized to convict. They must be organized to hear, try, and
determine on the evidence and the law. But, beyond requiring
conformity to standards of fundamental fairness that have won legal
recognition, this Court always has been careful not so to interpret
this Amendment as to impose uniform procedures upon the several
states whose legal systems stem from diverse sources of law and
reflect different historical influences. [
Footnote 36]
Page 332 U. S. 295
We adhere to this policy of self-restraint, and will not use
this great centralizing Amendment to standardize administration of
justice and stagnate local variations in practice. The jury system
is one which has undergone great modifications in its long history,
see People v. Dunn, 157 N.Y. 528, 52 N.E. 572, and it is
still undergoing revision and adaptation to adjust it to the
tensions of time and locality. In no place are American
institutions put to greater strain than in the City of New York,
with its some seven and a half million inhabitants gathered from
the four corners of the earth and a daily transient flow of two
million, with all that this implies of difficulty in law
enforcement. The citizen there, as in other jurisdictions, has been
called for jury service to perform a variety of functions -- the
grand jury, the petit jury, the sheriff's jury, the coroner's jury,
the foreign jury, the struck jury,
Page 332 U. S. 296
and the special jury. The states have had different and
constantly changing tests of eligibility for service. Evolution of
the jury continues even now, and many experiments are under way
that were strange to the common law. Some states have taken
measures to restrict its use; others, where jury service is a
hardship, diminish the required number of jurors. Some states no
longer require the unanimous verdict; others add alternate or
substitute jurors to avoid mistrial in case of sickness or death.
Some states have abolished the general verdict, and require answers
to specific questions. [
Footnote
37] Well has it been said of our power to limit state action
that
"To stay experimentation in things social and economic is a
grave responsibility. Denial of the right to experiment may be
fraught with serious consequences to the nation. It is one of the
happy incidents of the federal system that a single courageous
state may, if its citizens choose, serve as a laboratory, and try
novel social and economic experiments without risk to the rest of
the country."
Mr. Justice Brandeis, dissenting in
New State Ice Co. v.
Liebmann, 285 U. S. 262,
285 U. S.
311.
As there is no violation of a federal statute alleged, the
challenge to this judgment under the due process clause must stand
or fall on a showing that these defendants have had a trial so
unfair as to amount to a taking of their liberty without due
process of law. On this record, we think that showing has not been
made.
Affirmed.
* Together with No. 452,
Bove v. New York, also on
certiorari to the same Court.
[
Footnote 1]
270 App.Div. 261, 59 N.Y.S.2d 127.
[
Footnote 2]
Code of Criminal Procedure, §§ 520, 543-a, 66 McKinney's
Consolidated Laws of New York, part 2, 328, 329, 429.
[
Footnote 3]
296 N.Y. 510, 68 N.E.2d 453.
[
Footnote 4]
But 7,000 of the 60,000 on the general jury panel, or 11%, are
women. It is almost frivolous to assert that there is a bias
against their inclusion on juries.
Cf. Akins v. Texas,
325 U. S. 398,
325 U. S.
403.
[
Footnote 5]
Judiciary Law, Consol.Laws, c. 30, § 596, 29 McKinney's
Consolidated Laws of New York (pocket part) 131, 132.
[
Footnote 6]
Judiciary Law, § 599, 29 McKinney's Consolidated Laws of New
York (pocket part) 133, 134.
[
Footnote 7]
Judiciary Law, § 596,
supra.
[
Footnote 8]
Judiciary Law, § 599,
supra.
[
Footnote 9]
Judiciary Law, § 749-aa3, 29 McKinney's Consolidated Laws of New
York 512, 513.
[
Footnote 10]
Judiciary Law, § 749-aa2, 29 McKinney's Consolidated Laws of New
York 512.
[
Footnote 11]
Judiciary Law, § 749-aa4, 29 McKinney's Consolidated Laws of New
York 513, 514.
[
Footnote 12]
N.Y.Laws 1896, c. 378; N.Y.Laws 1901, c. 602.
[
Footnote 13]
The other cases cited in the per curiam affirmance were
Storti v. Massachusetts, 183 U. S. 138,
183 U. S. 141,
and
Andrews v. Swartz, 156 U. S. 272,
both of which disapprove the use of habeas corpus as a substitute
for writ of error. It is not clear, therefore, how much the
affirmance of the
Hall case depended on that procedural
ground, rather than on a disposition of the merits. Moreover, the
grounds urged against the special jury in that case related to its
selection from a panel which was only a segment of the general
panel, and did not assert the exclusion of particular groups.
[
Footnote 14]
The table was prepared at the request of petitioners' counsel by
an attorney who testified that he "found various occupations
listed" and "tried to classify them to groups, making them not too
numerous."
Total number of special jurors on file
in New York County Clerk's Office . . . . 2,911
Total number with classifiable
occupations . . . . . . . . . . . . . . . 2,743
Auditors and accountants. . . . . . . . . . 166
Bankers . . . . . . . . . . . . . . . . . . 170
Manufacturers . . . . . . . . . . . . . . . 106
Real Estate Brokers . . . . . . . . . . . . 117
Retired . . . . . . . . . . . . . . . . . . 62
Architects and engineers. . . . . . . . . . 229
Educators, teachers, librarians . . . . . . 27
Executives, managers of industrial
enterprises . . . . . . . . . . . . . . . 470
Stock brokers . . . . . . . . . . . . . . . 185
Salesmen, promoters of business
enterprises and advertising men . . . . . 438
Newspaper men, editorial writers and
others engaged in the dissemination
of information. . . . . . . . . . . . . . 148
Mechanics . . . . . . . . . . . . . . . . . 5
Insurance men . . . . . . . . . . . . . . . 166
Travel agency men . . . . . . . . . . . . . 10
Civil service employees . . . . . . . . . . 21
Office clerks . . . . . . . . . . . . . . . 94
Retail merchants. . . . . . . . . . . . . . 144
Entertainers. . . . . . . . . . . . . . . . 26
Building and construction
superintendents . . . . . . . . . . . . . 70
Chemists and physicists . . . . . . . . . . 66
Attorneys . . . . . . . . . . . . . . . . . 5
Laborers. . . . . . . . . . . . . . . . . . None
Labor union representatives . . . . . . . . 1
Housewives. . . . . . . . . . . . . . . . . 20
- There are only about 30 women on the entire special jury list
-
Petitioners' attorneys requested the Bureau of Labor Statistics
of the United States Department of Labor to conform the
classifications of the above table to the Census classifications.
In the table thus prepared, twenty-one persons are classed as civil
service employees and a note cautions that "Some members of this
group undoubtedly belong elsewhere, as under service trades, or
laborers." One hundred and sixty-five persons are listed as
unclassifiable in the Bureau's table.
[
Footnote 15]
bwm:
OCCUPATIONS OF EMPLOYED PERSONS (EXCEPT ON PUBLIC EMERGENCY
WORK) AND OF EXPERIENCED WORKERS SEEKING WORK, RESIDING
IN MANHATTAN IN THE WEEK OF MARCH 24 TO 30, 1940, COMPARED
WITH OCCUPATIONS OF SPECIAL JURORS ON FILE IN NEW YORK
COUNTY CLERK'S OFFICE, JANUARY 31, 1945.
=================================================================================================
Experienced Labor Force [a]
--------------------------------------------------------
Total Males
Occupation
--------------------------------------------------------
Special
Jurors
Seek- Seek-
Em- ing Em- ing
Total ployed work, Total ployed work,
[c] experi- [c] experi-
enced enced
-------------------------------------------------------------------------------------------------
A B C D E F G
Total [b] . . . . . . . . 921,183 778,202 142,981 589,431
489,618 99,813 2,664
Professional and semiprofes-
sional . . . . . . . . . . . 111,600 98,343 13,275 61,191 53,416
7,775 501
Proprietors, managers and offi-
cials. . . . . . . . . . . . 85,969 81,234 4,735 73,732 69,509
4,223 1,146
Clerical, sales, and kindred
workers. . . . . . . . . . . 196,037 169,066 26,971 112,316
95,853 16,463 1,012
Craftsmen, foreman and kindred
workers. . . . . . . . . . . 70,497 54,217 16,280 67,504 51,618
15,886 5
Operatives and kindred workers 156,581 128,253 28,328 98,493
79,562 18,931 ----
Service workers. . . . . . . . 254,595 216,992 37,603 131,121
110,157 20,955 ----
Laborers, except farm. . . . . 45,375 29,869 15,506 44,578
29,293 15,285 ----
Farmers, farm managers, farm
laborers . . . . . . . . . . 529 228 301 505 210 295 ----
Percent Percent
Total . . . . . . . . . . 100.0 100.0 100.0 100.0 100.0 100.0
100.0
Professional and semiprofes-
sional . . . . . . . . . . . 12.1 12.6 9.3 10.4 10.9 7.8
18.8
Proprietors, managers and offi-
cials. . . . . . . . . . . . 9.3 10.4 3.3 12.5 14.2 4.2 43.0
Clerical, sales, and kindred
workers. . . . . . . . . . . 21.3 21.7 18.9 19.1 19.6 16.5
38.0
Craftsmen, foremen and kindred
workers. . . . . . . . . . . 7.7 7.0 11.4 11.4 10.5 15.9 6.2
Operatives and kindred workers 17.0 16.5 19.8 16.7 16.2 19.0
----
Service workers. . . . . . . . 27.6 27.9 26.3 22.2 22.5 21.0
----
Laborers, except farm. . . . . 4.9 3.8 10.8 7.6 6.0 15.3
----
Farmers, farm managers, farm
laborers . . . . . . . . . . 0.1 [d] 0.2 0.1 [d] 0.3 ----
=================================================================================================
ewm:
[a] Includes the employed (except those on public emergency
work) and experienced workers seeking work. Source: U.S. Bureau of
the Census. Sixteenth Census of the United States, 1940, Population
v. III, part 4, New York State Table 10a, pp. 363-365.
[b] Omitting the unclassified, as well as housewives, retired
persons, and others not in the labor force.
[c] Except on public emergency work.
[d] Less than one-tenth of one percent.
[
Footnote 16]
Judiciary Law, §§ 40-48, 29 McKinney's Consolidated Laws of New
York 58-62, (pocket part, 1946) 17.
[
Footnote 17]
To obtain a struck jury, the commissioner of jurors or the
county clerk, in the presence of the parties, selected from the
general jury list the names of forty-eight persons whom he deemed
most indifferent between the parties and best qualified to try the
case. The parties then alternately would each strike off twelve
names from the list. The jury was chosen from the remaining
twenty-four names.
[
Footnote 18]
The foreign jury was chosen from a county adjoining that where
the trial was to be held, in cases which it was thought a more
impartial jury would thus be had. It lost its usefulness because of
the ease with which a change of venue might be obtained. Code of
Criminal Procedure, § 344.2, 66 McKinney's Consolidated Laws of New
York, part 1, 622.
[
Footnote 19]
Third Annual Report of the Judicial Council of the New York
(1937) 123-28.
[
Footnote 20]
Id. at 127.
[
Footnote 21]
Fourth Annual Report of the Judicial Council of the New York
(1938) 46.
[
Footnote 22]
Id. at 47.
[
Footnote 23]
Fifth Annual Report of the Judicial Council of the New York
(1939) 42-43.
[
Footnote 24]
Eleventh Annual Report of the Judicial Council of the New York
(1945) 49-50.
[
Footnote 25]
See note 2
supra.
[
Footnote 26]
Loughran, Ch.J., New York Court of Appeals, and Martin, P.J.,
App.Div. (1st Dep't).
[
Footnote 27]
It is unnecessary to decide whether the equal protection clause
of the Fourteenth Amendment might, of its own force, prohibit
discrimination on account of race in the selection of jurors, so
that such discrimination would violate the due process clause of
the same Amendment. Nor need we decide whether the due process
clause alone outlaws such discrimination.
Cf. Hill v.
Texas, 316 U. S. 400,
316 U. S.
406:
"But no state is at liberty to impose upon one charged with
crime a discrimination in its trial procedure which the
Constitution, and an Act of Congress passed pursuant to the
Constitution, alike forbid. . . . [I]t is our duty as well as the
state's to see to it that, throughout the procedure for bringing
him to justice, he shall enjoy the protection which the
Constitution guarantees. Where, as in this case, timely objection
has laid bare a discrimination in the selection of grand jurors,
the conviction cannot stand, because the Constitution prohibits the
procedure by which it was obtained. Equal protection of the laws is
something more than an abstract right. It is a command which the
state must respect, the benefits of which every person may
demand."
[
Footnote 28]
Official records of the New York county clerk show that, in the
five-year period, 1940-44, 2,407 new jurors were put on the special
panel which is maintained at about 3,000, and 2,692 persons were
removed from the list.
[
Footnote 29]
Third Annual Report of the Judicial Council of the New York
(1937) 123.
[
Footnote 30]
1911 Laws of Washington, c. 57.
See Carson, Women
Jurors (1928).
[
Footnote 31]
Report to the Judicial Conference of the Committee on Selection
of Jurors (1942) 23. A later bulletin of the Women's Bureau of the
United States Department of Labor showed that, in 1945, 31 States
permitted jury service by women, exemption being allowed in 15 of
them. But 17 States still withheld their approval of women on
juries. A pamphlet of the Women's Bureau, as yet unpublished, shows
that, at this time, four more states find women acceptable as
jurors.
[
Footnote 32]
See Judicial Code, §§ 275, 276, 28 U.S.C. §§ 411, 412;
Ballard v. United States, 329 U.
S. 187.
[
Footnote 33]
It is worth comment that the annual reports of the Judicial
Council, on which petitioners heavily rely, although they urge
strongly and persistently that the special jury be abolished, do
not give as one of the reasons the social makeup of the panel. This
is odd, if that reason were valid, since the Council obviously was
interested in urging all good reasons which would support it strong
disapproval and its reiterated recommendation.
[
Footnote 34]
Cf. Rawlins v. Georgia, 201 U.
S. 638,
201 U. S.
640:
"The nature of the classes excluded was not such as was likely
to affect the conduct of the members as jurymen, or to make them
act otherwise than those who were drawn would act."
[
Footnote 35]
We are unable to say that mere exclusion of jurors of one's
occupation renders a jury unconstitutional, even though the
occupation tends to give those who practice it a particular and
distinctive viewpoint. New York has some 20,000 policemen
presumably otherwise qualified for jury service. It is not unknown
that a defendant is a policeman. Can he not be constitutionally
tried if policemen are exempt from service or even excluded from
the panel? There is some discretion left in the states to say that
some occupations are more needed at their work than on jury duty
and, perhaps, that some have occupational attitudes that make it
appropriate to leave them off the list so long as an
unexceptionable list remains on call.
Cf. Rawlins v.
Georgia, 201 U. S. 638.
See Knox, Selection of Federal Jurors, 31 Journal of the
American Judicature Society 9, 11.
[
Footnote 36]
While English common law is the source from which it often is
assumed a uniform system was derived by the States of the United
States, it must not be overlooked that many of them have been
deeply influenced by Roman and civil law to which their history
exposed them. None of the territory west of the Alleghenies was
more than briefly or casually subject to common law before the
Revolution. French civil law prevailed in most of the Ohio and
Mississippi Valleys from their settlement until Wolfe's decisive
victory before Quebec in 1763. Its ascendancy in the north then was
broken, and, in 1803, the Louisiana Purchase ended French
sovereignty in the rest of the Mississippi area. Louisiana
continues, however, a system of law based on the Code Napoleon. The
Southwest and Florida once were Spanish.
See Colvin,
Participation of the United States of America with the Republics of
Latin America in the Common Heritage of Roman and Civil Law, 10
Proceedings of the Eighth American Scientific Congress 467.
Even among the early seaboard States, the English common law had
rivals. The Swedes on the banks of the Delaware held one of the
earliest jury trials on this continent. The Governor followed
Swedish law and custom in calling to his aid in judging
"assistants" who were selected from among "the principal and wisest
inhabitants" and were both judges and jurors, and sometimes
witnesses.
See 1 Johnson, The Swedish Settlements on the
Delaware (1911) 450
et seq. In New York, there was a deep
and persistent influence from Roman Dutch law. Upon capitulation of
New Amsterdam, it was stipulated that certain Dutch law and
judgments and customs should be respected. But even beyond this, in
the organization of the courts, the Dutch rule persisted although
contrary to the "Duke's Laws" enacted by the conqueror. The history
of the early Dutch influence in New York court procedure was
preserved by the diligence and foresight of Judge Daly. 1 E.D.
Smith's Reports (New York Common Pleas) xvii, xxxiv, xxxvii. The
Roman-Dutch element in New York law is recognized by its courts,
e.g., Dunham v. Williams, 37 N.Y. 251, 253;
Van
Giessen v. Bridgford, 83 N.Y. 348, 356;
Smith v.
Rentz, 131 N.Y. 169, 175, 30 N.E. 54.
[
Footnote 37]
See 8 Encyclopedia of the Social Sciences 492.
MR. JUSTICE MURPHY, dissenting.
The equal protection clause of the Fourteenth Amendment
prohibits a state from convicting any person by use of a jury which
is not impartially drawn from a cross-section of the community.
That means that juries must
Page 332 U. S. 297
be chosen without systematic and intentional exclusion of any
otherwise qualified group of individuals.
Smith v. Texas,
311 U. S. 128.
Only in that way can the democratic traditions of the jury system
be preserved.
Thiel v. Southern Pacific Co., 328 U.
S. 217,
328 U. S. 220;
Glasser v. United States, 315 U. S.
60,
315 U. S. 85. It
is because I believe that this constitutional standard of jury
selection has been ignored in the creation of the so-called "blue
ribbon" jury panel in this case that I am forced to dissent.
Preliminarily, it should be noted that legislation by Congress
prohibiting the particular kind of inequality here involved is
unnecessary to enable us to strike it down under the Constitution.
While Congress has the power to enforce by appropriate legislation
the provisions of the Fourteenth Amendment, and has done so
relative to discrimination in jury selection on the basis of race
or color, its failure to legislate as to economic or other
discrimination in jury selection does not permit us to stand idly
by. We have consistently interfered with state procedure and state
legislation when we felt that they were inconsistent with the
Fourteenth Amendment or with the federal commerce power despite
Congressional silence on the matter involved.
See, e.g., West
Virginia State Board of Education v. Barnette, 319 U.
S. 624;
Nippert v. Richmond, 327 U.
S. 416;
Morgan v. Virginia, 328 U.
S. 373. And so, in this case, we are entitled to judge
the action of New York by constitutional standards without regard
to the absence of relevant federal legislation.
The constitutional vice inherent in the type of "blue ribbon"
jury panel here involved is that it rests upon intentional and
systematic exclusion of certain classes of people who are
admittedly qualified to serve on the general jury panel. Whatever
may be the standards erected by jury officials for distinguishing
between those eligible
Page 332 U. S. 298
for such a "blue ribbon" panel and those who are not, the
distinction itself is an invalid one. It denies the defendant his
constitutional right to be tried by a jury fairly drawn from a
cross-section of the community. It forces upon him a jury drawn
from a panel chosen in a manner which tends to obliterate the
representative basis of the jury.
The selection of the "blue ribbon" panel in this case rests upon
the "degree of intelligence as revealed by the questionnaire"sent
to prospective jurors, augmented by personal interviews. The
questionnaire, however, does not purport to be a test of native
intelligence, nor does it appear to offer any sound basis for
distinguishing the intelligence of one person from another. The
undeniable result has been to permit the jury officials to
formulate whatever standards they desire, whether in terms of
"intelligence" or some other factor, to eliminate persons from the
"blue ribbon" panel even though they admittedly are qualified for
general jury service. That fact is strikingly borne out by the
statistics compiled in this case as to the personnel of the "blue
ribbon" panel. Certain classes of individuals are totally
unrepresented on the panel, despite their general qualifications
and despite the fact that high intelligence is to be found in such
classes.
bwm:
Percentage of Percentage of
total experienced representation on
labor forces in "blue ribbon"
Manhattan. panel.
Professional and semi-professional . . . . 12.1 18.8
Proprietors, managers and officials. . . . 9.3 43
Clerical, sales and kindred workers. . . . 21.3 38
Craftsmen, foremen and kindred
workers. . . . . . . . . . . . . . . . . 7.7 O.2
Operatives and kindred workers . . . . . . 17 0
Service workers. . . . . . . . . . . . . . 27.6 0
Laborers . . . . . . . . . . . . . . . . . 4.9 0
Farmers. . . . . . . . . . . . . . . . . . O.1 0
ewm:
Page 332 U. S. 299
Such statistics can only mean that the jury officials have
evolved some standard other than that of "intelligence" to exclude
certain persons from the "blue ribbon" panel. And that standard is
apparently of an economic or social nature, unjustified by the
democratic principles of the jury system.
The Court points out some of the difficulties involved in
comparing the personnel of the panel with 1940 census figures. But
we are dealing here with a very subtle and sophisticated form of
discrimination which does not lend itself to easy or precise proof.
The proof here is adequate enough to demonstrate that this panel,
like every discriminatorily selected "blue ribbon" panel, suffers
from a constitutional infirmity. That infirmity is the denial of
equal protection to those who are tried by a jury drawn from a
"blue ribbon" panel. Such a panel is narrower and different from
that used in forming juries to try the vast majority of other
accused persons. To the extent of that difference, therefore, the
persons tried by "blue ribbon" juries receive unequal
protection.
In addition, as illustrated in this case, the distinction that
is drawn in fact between "blue ribbon" jurors and general jurors is
often of such a character as to destroy the representative nature
of the "blue ribbon" panel. There is no constitutional right to a
jury drawn from a group of uneducated and unintelligent persons.
Nor is there any right to a jury chosen solely from those at the
lower end of the economic and social scale. But there is a
constitutional right to a jury drawn from a group which represents
a cross-section of the community. And a cross-section of the
community includes persons with varying degrees of training and
intelligence, and with varying economic and social positions. Under
our Constitution, the jury is not to be made the representative of
the most intelligent, the most wealthy, or the most successful,
nor
Page 332 U. S. 300
of the least intelligent, the least wealthy or the least
successful. It is a democratic institution, representative of all
qualified classes of people.
Smith v. Texas, supra. To the
extent that a "blue ribbon" panel fails to reflect this democratic
principle, it is constitutionally defective.
The Court demonstrates rather convincingly that it is difficult
to prove that the particular petitioners were prejudiced by the
discrimination practiced in this case. Yet that should not excuse
the failure to comply with the constitutional standard of jury
selection. We can never measure accurately the prejudice that
results from the exclusion of certain types of qualified people
from a jury panel. Such prejudice is so subtle, so intangible, that
it escapes the ordinary methods of proof. It may be absent in one
case and present in another; it may gradually and silently erode
the jury system before it becomes evident. But it is no less real
or meaningful for our purposes. If the constitutional right to a
jury impartially drawn from a cross-section of the community has
been violated, we should vindicate that right even though the
effect of the violation has not yet put in a tangible appearance.
Otherwise that right may be irretrievably lost in a welter of
evidentiary rules.
Since this "blue ribbon" panel falls short of the constitutional
standard of jury selection, the judgments below should be
reversed.
MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS and MR. JUSTICE RUTLEDGE
join in this dissent.