Under Massachusetts' two-tier court system, a person accused of
certain crimes is tried in the first instance in the lower tier,
where no trial by jury is available. If convicted, he may appeal to
the second tier, and, if he was convicted after a proceeding on a
not-guilty plea, or by "admitting sufficient findings of fact," he
is entitled to a trial de novo
by jury in the second tier.
Appellant, after he pleaded not guilty and after his motion for a
jury trial was denied, was tried and convicted in a first-tier
court. He then appealed to the second tier, and after
unsuccessfully moving to dismiss on grounds that he had been
deprived of his constitutional right to a speedy jury trial in the
first instance and had been subjected to double jeopardy, he waived
a jury trial and was again convicted. The Massachusetts Supreme
Judicial Court affirmed, holding that the denial of appellant's
request to be tried by a jury at his first trial did not violate
his constitutional right to a speedy trial or to a trial by jury,
and that the Massachusetts procedure did not violate the
constitutional prohibition against putting a person twice in
1. The Massachusetts two-tier court system does not deprive an
accused of his Fourteenth Amendment right to a jury trial, but
absolutely guarantees trial by jury to persons accused of serious
crimes, and the manner specified for exercising this right is fair
and not unduly burdensome. Callan v. Wilson, 127 U.
, distinguished. Pp. 427 U. S.
(a) Within the system, the jury serves its function of
protecting an accused from prosecutorial and judicial misconduct.
Pp. 427 U. S.
(b) That an accused may undertake the financial cost of an
additional trial does not unconstitutionally burden the right to a
jury trial because he is not required to pursue a defense at the
lower tier. Moreover, if an accused is indigent, the State is
required to furnish him counsel without cost. Pp. 427 U. S.
(c) Nor does the possibility of a harsher sentence at the second
tier impermissibly burden the accused's right to a jury
Page 427 U. S. 619
trial. North Carolina v. Pearce, 395 U.
; Colten v. Kentucky, 407 U.
. P. 427 U. S.
(d) Where appellant no longer urges that he was denied his
constitutional right to a speedy trial, and there is no evidence
that there is a greater delay in obtaining a jury in Massachusetts
than there would be if the two-tier system were abandoned, it
cannot properly be contended that the system unconstitutionally
burdens the right to a jury trial by imposing the increased
psychological and physical hardships of two trials. Pp.
427 U. S.
2. The Massachusetts procedure does not violate the Double
Jeopardy Clause of the Fifth Amendment made applicable to the
States by the Fourteenth, and appellant's claim that, because he
had been placed once in jeopardy and convicted, the State may not
retry him when he decides to "appeal" and secure a trial de
is without merit. An accused who elects to be tried
is in no different position from a convicted
defendant who successfully appeals on the basis of the trial record
and gains a reversal of his conviction and a remand for a new
trial. Nothing in the Double Jeopardy Clause prohibits a State from
affording a defendant two opportunities to avoid conviction and
secure an acquittal. Pp. 427 U. S.
___ Mass. ___, 330
BLACKMUN, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, POWELL, and REHNQUIST, JJ., joined.
POWELL, J., filed a concurring opinion, post,
427 U. S. 632
STEVENS, J., filed a dissenting opinion, in which BRENNAN, STEWART,
and MARSHALL, JJ., joined, post,
p. 427 U. S.
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
The Commonwealth of Massachusetts long ago established a
"two-tier" system of trial courts for certain
Page 427 U. S. 620
crimes. A person accused of such a crime is tried in the first
instance in the lower tier. No trial by jury is available there. If
convicted, the defendant may take a timely "appeal" to the second
tier and, if he so desires, have a trial de novo
The issues here presented are (1) whether, where the Constitution
guarantees an accused a jury trial, it also requires that he be
permitted to exercise that right at the first trial in the lower
tier, and (2) whether the Massachusetts procedure violates the
Double Jeopardy Clause of the Fifth Amendment made applicable to
the States by the Fourteenth. Benton v. Maryland,
395 U. S. 784
Massachusetts is one of several States having a two-tier system
of trial courts for criminal cases. See Colten v.
Kentucky, 407 U. S. 104
407 U. S. 112
n. 4 (1972). Some States provide a jury trial in each tier; others
provide a jury only in the second tier, but allow an accused to
bypass the first; and still others, like Massachusetts, do not
allow an accused to avoid a trial of some sort at the first tier
before he obtains a trial by jury at the second.
The first tier of the Massachusetts system is composed of
district courts of the State's several counties, and the Municipal
Court of the city of Boston. Mass.Gen.Laws Ann. c. 218, § 1 (Supp.
1976-1977). These courts have jurisdiction over violations of
municipal ordinances, over misdemeanors except criminal libel, over
felonies having a maximum potential sentence of not more than five
years, and over specified felonies having a maximum potential
sentence in excess of five years. § 26.
A criminal proceeding in the first-tier court is begun with the
issuance of a complaint. An accused then has two statutory
alternatives. He may plead guilty at arraignment and be sentenced
by the court. If he is dissatisfied
Page 427 U. S. 621
with the sentence, he may appeal. C. 278, § 18. In that case,
however, the accused is not entitled to a trial de novo
respecting his guilt or innocence; he is limited, instead, to a
challenge to his sentence. Commonwealth v. Crapo,
Mass. 209, 98 N.E. 702 (1912).
If, on the other hand, the accused pleads not guilty in the
first tier, he is tried by the judge without a jury. An acquittal
there terminates the proceeding. After a judgment of guilty,
however, he may appeal either to the superior court, where a
12-person jury is available, c. 278, §§ 2 and 18 (1972 and Supp.
1976-1977), or to the jury division of the district court, where a
jury of six is available. C. 218, § 27A; c. 278, § 18 (Supp.
1976-1977). See also Mann v. Commonwealth,
359 Mass. 661,
, 333 (1971); Jones v. Robbins,
329, 336, 341-342 (1857); Mass.Gen.Laws Ann. c. 278, § 18A
Unlike the two-tier Kentucky system under consideration in
Colten v. Kentucky, supra,
an accused in Massachusetts
does not avoid trial in the first instance by pleading guilty.
Nevertheless, he achieves essentially the same result by an
established, informal procedure known as "admitting sufficient
findings of fact." Tr. of Oral Arg. 31. See also id.
13, 32-33. This procedure is used "[i]f the defendant wishes to
waive a trial in the District Court and save his rights for a trial
in the Superior Court on the appeal." 30 K. Smith, Massachusetts
Practice, Criminal Practice and Procedure § 754 (1970). The trial
court then hears only enough evidence to assure itself that there
is probable cause to believe that the defendant has committed the
offense with which he is charged. The court, however, does make a
finding of guilt and enter a judgment of conviction.
Once a person convicted in the district Court indicates
Page 427 U. S. 622
that he is going to appeal, [Footnote 1
] his conviction is vacated. He may suffer
adverse collateral consequences from the conviction, such as
revocation of parole or of his driver's license. Mass.Gen.Laws Ann.
c. 90, §§ 24(1)(b) and (c) (1969 and Supp. 1976-1977). See
Almeida v. Lucey, 372 F.
(Mass.), summarily aff'd,
419 U.S. 806
(1974); Boyle v. Registrar of Motor Vehicles,
, 53 (1975). Moreover, if the accused
"fails to enter and prosecute his appeal, he shall be defaulted
on his recognizance and the superior court may impose sentence upon
him for the crime of which he was convicted, as if he had been
convicted in said court."
Mass.Gen.Laws Ann. c. 278, § 24 (1972).
If an accused does appeal and does not default, he may, upon
request, be tried de novo
by a jury. If, again, he is
found guilty, he may appeal, as of right, to the Massachusetts
Appeals Court or to the Supreme Judicial Court, where he may raise
both factual and legal claims of error. §§ 28, 28B (1972).
On February 1, 1974, in the District Court of Northern Norfolk,
appellant Ludwig was charged with operating a
Page 427 U. S. 623
motor vehicle "negligently . . . so that the lives and safety of
the public might be endangered," App 3a, in violation of
Mass.Gen.Laws Ann. c. 90, § 24(2)(a) (Supp. 1976-1977). This
offense carries a maximum penalty of a fine of § 200, or two years'
imprisonment, or both. On the same day, Ludwig was arraigned and
pleaded not guilty.
At the commencement of trial on March 11, appellant moved for a
"speedy trial by jury," citing the Fifth and Sixth Amendments. The
motion was denied, and, after a brief trial, the court adjudged
Ludwig guilty and imposed a fine of § 20. Thereafter, appellant
asserted his statutory right to a trial de novo
six-man jury in the District Court.
In the de novo
proceeding, appellant filed a "motion to
dismiss" on the grounds that he had been deprived of his federal
constitutional right to a speedy jury trial in the first instance,
and that he had been subjected to double jeopardy. App. 5a-6a. The
motion was denied. At the second trial on April 5, appellant waived
a jury and, after trial by the court, again was adjudged guilty,
and again was fined § 20.
On appeal, the Supreme Judicial Court of Massachusetts affirmed
the judgment of conviction. ___ Mass. ___, 330
(1975). Relying on its earlier decision in
Whitmarsh v. Commonwealth,
366 Mass. 212, 316
(1974), appeal dismissed,
421 U.S. 957
(1975), the court held that the denial of appellant's request to be
tried by a jury at his first trial did not violate his right to a
speedy trial or to a trial by jury as guaranteed by the Sixth and
Fourteenth Amendments, and that the Massachusetts procedure did not
violate the constitutional prohibition against putting a person
twice in jeopardy.
The present appeal to this Court followed. We noted
Page 427 U. S. 624
probable jurisdiction, 423 U.S. 945 (1975), in order to consider
the issues recited in the opening paragraph of this opinion.
] See Costarelli
v. Massachusetts, 421 U. S. 193
The standard against which we judge whether the Massachusetts
two-tier system violates an individual's constitutional right to
trial by jury is the Fourteenth Amendment's guarantee that no
person may be deprived "of life, liberty, or property, without due
process of law." In giving content to this sweeping proscription in
the jury trial context, the Court in the past has considered two
distinct issues: whether a State is ever obliged to grant an
accused a jury trial, and whether certain features of the 18th
century common law jury are inherent in the right.
In Duncan v. Louisiana, 391 U.
(1968), the Court resolved the first issue by
reference to, and in the light of, the Sixth Amendment. It held
that the right to a jury trial in a "serious" criminal case was
"fundamental to the American scheme of justice." Id.
391 U. S. 149
Accordingly, it held that the
"Fourteenth Amendment guarantees a right of jury trial in all
criminal cases which -- were they to be tried in a federal court --
would come within the Sixth Amendment's guarantee."
Only when an accused is charged with a "petty"
offense, usually defined by reference to the maximum
Page 427 U. S. 625
punishment that might be imposed, does the Constitution permit
the Federal Government and the State to deprive him of his liberty
without affording him an opportunity to have his guilt determined
by a jury. Baldwin v. New York, 399 U. S.
(1970) (plurality opinion).
In Williams v. Florida, 399 U. S.
(1970), and in Apodaca v. Oregon,
406 U. S. 404
(1972) (plurality opinion), the Court dealt with the second issue
by considering whether particular features of the 18th century
common law jury are essential, or merely incidental, to the central
purpose of the jury trial requirement. The jury, it was observed,
acts as "an inestimable safeguard against the corrupt or
overzealous prosecutor and against the compliant, biased, or
eccentric judge.'" Williams v. Florida, 399 U.S. at
399 U. S. 100,
quoting Duncan v. Louisiana, 391 U.S. at 391 U. S. 156.
The Court held in Williams that a jury of 12 is not
required in order that this central purpose be served. Similar
analysis led to the holding in Apodaca that the jury's
verdict need not be unanimous. What is important is that the
verdict reflect the common sense judgment of a group of laymen;
this it may do even if it is only a majority verdict,
"as long as [the jury] consists of a group of laymen
representative of a cross-section of the community who have the
duty and the opportunity to deliberate, free from outside attempts
at intimidation, on the question of a defendant's guilt."
406 U.S. at 406 U. S.
These two issues are not again in controversy in the present
case. It is indisputable that the Massachusetts two-tier system
does afford an accused charged with a serious offense the absolute
right to have his guilt determined by a jury composed and operating
in accordance with the Constitution. Within the system, the jury
serves its function of protecting against prosecutorial and
Page 427 U. S. 626
judicial. misconduct. It does so directly at the second tier of
the Massachusetts system, and it may also have an indirect effect
on first-tier trials.
"Even where defendants are satisfied with bench trials, the
right to a jury trial very likely serves its intended purpose of
making judicial or prosecutorial unfairness less likely."
Duncan v. Louisiana,
391 U.S. at 391 U. S.
This is not to say that we are unaware of a remote possibility
that an accused in Massachusetts may be faced at his first trial
with an overzealous prosecutor and a judge who is either unable or
unwilling to control him. But in such a case, he may protect
himself from questionable incarceration by appealing, and insisting
upon a trial by jury.
Even though the Massachusetts procedure does not deprive an
accused of his Fourteenth Amendment right to a jury trial, the
question remains whether it unconstitutionally burdens the exercise
of that right: (1) by imposing the financial cost of an additional
trial; (2) by subjecting an accused to a potentially harsher
sentence if he seeks a trial de novo
in the second tier;
and (3) by imposing the increased psychological and physical
hardships of two trials.
Appellant charges that the Massachusetts system financially
burdens the accused by requiring that he twice defend himself and
by causing a loss of wages if he is employed. Although these
burdens are not unreal, and although they may, in an individual
case, impose a hardship, we conclude that they do not impose an
unconstitutional burden on the exercise of the right to a trial by
jury. In Massachusetts, the accused may enjoy his right to trial by
jury expeditiously by invoking the above-described procedure of
"admitting sufficient findings of fact." He, therefore, need not
pursue, in any real sense, a defense at the lower tier. The
Page 427 U. S. 627
may utilize that proceeding fruitfully as a discovery tool and
find the strengths and the weaknesses of the State's case against
him. And, of course, if ar accused is indigent, the State is
required to furnish him counsel without cost before he may be
deprived of his liberty. Argersinger v. Hamlin,
407 U. S. 25
The question whether the possibility of a harsher sentence at
the second tier impermissibly burdens the exercise of an accused's
right to a trial by jury is controlled by the decisions in
North Carolina v. Pearce, 395 U.
(1969), and Colten v. Kentucky,
407 U. S. 104
(1972). These cases establish that the mere possibility of a
harsher sentence does not unconstitutionally burden an accused's
right to a trial by jury. In Pearce,
a new trial was
sought, by taking an appeal, because of error at the first trial.
a new trial was sought in order to secure more
ample safeguards available at the higher tier. We see no need to
reach a different result here, where a new trial is sought in order
to obtain a jury. [Footnote 3
Due process is violated only by the vindictive imposition of an
increased sentence. The Court in Colten
held that the
danger of such sentencing does not inhere in the two-tier system.
] 407 U.S. at
407 U. S.
Page 427 U. S. 628
We are not oblivious to the adverse psychological and physical
effects that delay in obtaining the final adjudication of one's
guilt or innocence may engender. Protection against unwarranted
delay, with its concomitant side effects on the accused, of course,
is primarily the function of the Speedy Trial Clause of the Sixth
Amendment, made applicable to the States by means of the
Fourteenth. Klopfer v. North Carolina, 386 U.
(1967). Appellant does not continue to press the
Page 427 U. S. 629
made below, that he was denied his constitutional right to a
speedy trial. Further, it is nearly always true that an accused may
obtain a faster adjudication of his guilt or innocence by waiving a
jury trial even in those States where he may have one in the first
instance. No one has seriously charged, however, that the fact that
trials by jury are not scheduled so quickly as trials before a
judge impermissibly burdens the constitutional right to trial by
jury. Finally we are uncertain whether the delay in obtaining a
jury trial is increased by the de novo
decreased. Appellant has not presented any evidence to show that
there is a greater delay in obtaining a jury in Massachusetts than
there would be if the Commonwealth abandoned its two-tier system.
We are reluctant to attribute to Massachusetts a perverse
determination to maintain an inefficient system whose very purpose
is to increase efficiency.
Our disposition of this case does not require us to disturb the
holding in Callan v. Wilson, 127 U.
(1888). In Callan,
this Court considered
the validity of a District of Columbia two-tier trial system that
provided for trial by jury only in the second tier. The Court
"Except in that class or grade of offences called petty
offences, which, according to the common law, may be proceeded
against summarily in any tribunal legally constituted for that
purpose, the guarantee of an impartial jury to the accused in a
criminal prosecution, conducted either in the name, or by or under
the authority of, the United States, secures to him the right to
enjoy that mode of trial from the first moment, and in whatever
court, he is put on trial for the offence charged."
at 127 U. S. 557
Reconsideration of Callan
is not required here for two
reasons. First, as the Court there recognized, the sources
Page 427 U. S. 630
of the right to jury trial in the federal courts are several,
and include Art. III, § 2, cl. 3, of the Constitution. That
provision requires, in pertinent part, that "[t]he Trial of all
Crimes . . . shall be by Jury." This language, which might be read
as prohibiting, in the absence of a defendant's consent, a federal
trial without a jury is, of course, not applicable to the States.
Second, to the extent that the decision in Callan
rested on a determination that the right to trial by jury in a
serious criminal case was unduly burdened by a requirement that an
accused first be tried without a jury, it is not controlling here.
Unlike the District of Columbia system, which apparently required
that an accused be "fully tried" in the first tier, 127 U.S. at
127 U. S. 557
Massachusetts permits an accused to circumvent trial in the first
tier by admitting to sufficient findings of fact.
The modes of exercising federal constitutional rights have
traditionally been left, within limits, to state specification. In
this case, Massachusetts absolutely guarantees trial by jury to
persons accused of serious crimes, and the manner it has specified
for exercising this right is fair and not unduly burdensome.
The final contention is that the Massachusetts procedure
violates the Double Jeopardy Clause. The basis of appellant's
contention is that "the de novo
procedure forces the
accused to the risk' of two trials." Brief for Appellant 66.
Appellee responds by quoting from North Carolina v.
Pearce, 395 U.S. at 395 U. S.
"At least since 1896, when United States v. Ball,
163 U. S.
, was decided, it has been settled that this
constitutional guarantee imposes no limitations whatever upon the
power to retry
a defendant who has succeeded in getting
his first conviction set aside."
(Emphasis in original.) Brief for Appellee 31.
Page 427 U. S. 631
We agree that there is no double jeopardy violation posed by the
Massachusetts system. The history of the Double Jeopardy Clause and
its interpretation were canvassed by the Court only last Term in
United States v. Wilson, 420 U. S. 332
(1975); United States v. Jenkins, 420 U.
(1975); and Serfass v. United States,
420 U. S. 377
(1975), and need not be repeated here. It is sufficient to say:
"Although the form and breadth of the prohibition varied widely,
the underlying premise was generally that a defendant should not be
twice tried or punished for the same offense. . . . Writing in the
17th century, Lord Coke described the protection afforded by the
principle of double jeopardy as a function of three related common
law pleas: autrefois acquit, autrefois convict,
United States v. Wilson,
420 U.S. at 420 U. S.
-340. In this case, only the concept represented by
the common law plea of autrefois convict
is presently at
issue. The Massachusetts system presents no danger of prosecution
after an accused has been pardoned; nor is there any doubt that
acquittal at the first tier precludes reprosecution. Instead, the
argument appears to be that, because the appellant has been placed
once in jeopardy and convicted, the State may not retry him when he
informs the trial court of his decision to "appeal" and to secure a
trial de novo.
Appellant's argument is without substance. The decision to
secure a new trial rests with the accused alone. A defendant who
elects to be tried de novo
in Massachusetts is in no
different position than is a convicted defendant who successfully
appeals on the basis of the trial record and gains a reversal of
his conviction and a remand of his case for a new trial. Under
Page 427 U. S. 632
circumstances, it long has been clear that the State may
reprosecute. United States v. Ball, 163 U.
(1896). The only difference between an appeal on
the record and an appeal resulting automatically in a new trial is
that a convicted defendant in Massachusetts may obtain a "reversal"
and a new trial without assignment of error in the proceedings at
his first trial. Nothing in the Double Jeopardy Clause prohibits a
State from affording a defendant two opportunities to avoid
conviction and secure an acquittal.
The judgment is affirmed.
It is so ordered.
Massachusetts Gen.Laws Ann. c. 218, § 31 (1958), governs the
execution of sentence. If a sentence of six months or less is
imposed, the convicted defendant apparently must state immediately
that he intends to appeal. If the sentence exceeds six months, the
defendant has one day, before commitment, in which to decide
whether to appeal. Although the statute provides that a defendant
be informed of his right to appeal, it is unclear whether he also
is to be informed that, by appealing, he may secure a trial by
jury. Since appellant Ludwig did appeal and then expressly waived a
jury in the second tier, we need not address the question whether a
failure to take an appeal would constitute a knowing and
intelligent waiver of the right to trial by jury. See Boykin v.
Alabama, 395 U. S. 238
395 U. S. 243
There is a division of opinion concerning the validity of the
two-tier procedure typified by the Massachusetts system.
Compare State v. Holliday,
109 R.I. 93, 280
(1971), with Manns v. Commonwealth,
322, 191 S.E.2d 810 (1972); Walker v.
Dillard, 363 F.
, 924-925 (WD Va.1973), rev'd on other
523 F.2d 3 (CA4), cert. denied,
423 U.S. 906
(1975); Whitmarsh v. Commonwealth,
366 Mass. 212,
(1974), appeal dismissed,
421 U.S. 957
(1975); Boyle v. Registrar of Motor Vehicles,
There is no question, of course, that a person who is accused of
crime may receive a fair trial before a magistrate or judge.
Cf. Argersinger v. Hamlin, 407 U. S.
(1972). Indeed, the fact that one accused of a
"petty" offense punishable by up to six months imprisonment has no
constitutional right to be tried by a jury reflects that judgment.
In this respect, the present case differs from Ward v. Village
of Monroeville, 409 U. S. 57
In support of the contrary contention, appellant cites
United States v. Jackson, 390 U.
(196), where the Court held unconstitutional a
provision of the Federal Kidnaping Act that permitted the death
penalty to be imposed only if recommended by a jury. This
provision, by not setting forth a "procedure for imposing the death
penalty upon a defendant who waives the right to jury trial or upon
one who pleads guilty," id.
at 390 U. S. 571
discouraged the assertion of the accused's Sixth Amendment right to
demand a trial by jury. In contrast, here, the same range of
penalties is available at both tiers.
Appellant also refers to an incident in which a
"trial judge in the Municipal Court of Boston announced that he
would impose a one-year suspended jail sentence if the defendant
would forgo his 'right to appeal' for a trial by jury, or otherwise
he would impose a one-year sentence. When this attorney objected to
the choice, the trial judge . . . [stated]: 'Take your pick, one
year suspended with no appeal, or one year with appeal.'"
Brief for Appellant 37. Dampening the exercise of a
constitutional right, by a method such as that, may be corrected,
of course, in individual instances. See North Carolina v.
Pearce, 395 U. S. 711
The example, moreover, is not helpful to appellant here. He was
not subjected to vindictive sentencing. He received a nominal fine
of $20 at both proceedings. Further, the suggestion that vindictive
sentencing is a serious problem in Massachusetts is belied by
another of appellant's claims:
"In Massachusetts, however, the record of the lower court
proceedings, including the sentence imposed, is transmitted to the
superior court. . . . If the accused is convicted again, the
resentencing judge, as a matter of practice, usually inquires
initially as to why the lower court sentence should not be
Brief for Appellant 43. It is argued that this procedure
"manifestly discourages appeals.'" Ibid. We are unable
to see why. If the chances are great that an accused who has been
convicted at the first tier will receive the same sentence at the
second tier if he is again convicted, there is little reason not to
appeal and take the "risk" of an acquittal.
MR. JUSTICE POWELL, concurring.
I join the opinion of the Court, as I understand it to be
consistent with my view that the right to a jury trial afforded by
the Fourteenth Amendment is not identical to that guaranteed by the
Sixth Amendment. See
my opinion in Apodaca v.
reported at 406 U.S. at 406 U. S.
-380 (1972) (concurring in judgment). *
I add only that
Callan v. Wilson, 127 U. S. 540
(1888), is distinguishable most simply by the applicability to that
case of the Sixth Amendment.
* The plurality opinion in Apodaca v. Oregon
reported at 406 U. S. 406
404. My opinion is appended to the Court's opinion in Johnson
v. Louisiana, 406 U. S. 356
(1972), commencing at 405 U. S.
MR. JUSTICE STEVENS, with whom MR. JUSTICE BRENNAN, MR. JUSTICE
STEWART, and MR. JUSTICE MARSHALL join, dissenting.
The question in this case is whether Massachusetts may convict a
defendant of a crime and sentence him to prison for a period of
five years without a jury trial. The Court answers the question in
the affirmative for two reasons. First, the conviction is almost
Page 427 U. S. 633
since the defendant may have it vacated by an immediate appeal;
and second, the defendant may minimize the burden of the trial by,
in effect, stipulating that the proof need not establish his guilt
beyond a reasonable doubt. To put it mildly, I find these reasons
Almost a century ago, the Court decided that a comparable
procedure was unconstitutional. Referring to a federal criminal
proceeding, a unanimous Court stated:
"But the argument, made in behalf of the government, implies
that, if Congress should provide the Police Court with a grand
jury, and authorize that court to try, without a petit jury, all
persons indicated even for crimes punishable by confinement in the
penitentiary -- such legislation would not be an invasion of the
constitutional right of trial by jury, provided the accused, after
being tried and sentenced in the Police Court, is given an
unobstructed right of appeal to, and trial by jury in, another
court to which the case may be taken. We cannot assent to that
interpretation of the Constitution. Except in that class or grade
of offences called petty offences, which, according to the common
law, may be proceeded against summarily in any tribunal legally
constituted for that purpose, the guarantee of an impartial jury to
the accused in a criminal prosecution, conducted either in the
name, or by or under the authority of, the United States, secures
to him the right to enjoy that mode of trial from the first moment,
and in whatever court, he is put on trial for the offence charged.
In such cases, a judgment of conviction not based upon a verdict of
guilty by a jury is void. To accord to the accused a right to be
tried by a jury, in an appellate court, after he has been once
Page 427 U. S. 634
otherwise than by a jury, in the court of original jurisdiction,
and sentenced to pay a fine or be imprisoned for not paying it,
does not satisfy the requirements of the Constitution."
Callan v. Wilson, 127 U. S. 540
127 U. S.
-557. As is evident from the Court's language, its
holding did not rest on any difference between the way the
guarantee of the right to a trial by jury is described in Art. III,
§ 2, cl. 3, and the way the right is described in the Sixth
Amendment. The Court's holding reflected the Court's appraisal of
the value of the right to a trial by jury.
Before refusing to follow a precedent so nearly in point, I
should think the Court would at least ask why Massachusetts
the defendant to stand trial in the first tier
before permitting him to have a jury trial. This is a requirement
the defendant cannot waive. It is also a requirement which -- as
far as the record, the briefs, the oral argument, or the opinion
announced by the Court today, shed any light on the matter -- is
totally irrational. [Footnote 2/1
All of the legitimate benefits of the two-tier system could be
obtained by giving the defendant the right to waive the first-tier
The only reason I can perceive for not allowing such a waiver
illustrates the vice of the system. A defendant
Page 427 U. S. 635
who can afford the financial and psychological burden of one
trial may not be able to withstand the strain of a second. Thus, as
a practical matter, a finding of guilt in the first-tier proceeding
will actually end some cases that would have been tried by a jury
if the defendant had the right to waive the first-tier proceeding.
And since the nonjury trial is less expensive and time consuming,
the State receives the benefit of an expedited disposition in such
a case. The Court quite properly does not rely on any such
justification because, if valid, it would justify the complete
elimination of jury trials.
There are several reasons why I cannot accept the Court's naive
assumption that the first-tier proceeding is virtually meaningless.
If it is meaningless for the defendant, it must be equally
meaningless for the Commonwealth. But if so, why does the
Commonwealth insist on the requirement that the defendant must
submit to the first trial? Only, I suggest because it believes the
number of jury trials that would be avoided by the required
practice exceeds the number that would take place in an optional
system. In short, the very purpose of the requirement is to
discourage jury trials by placing a burden on the exercise of the
The burden, in my opinion, is significant. A second trial of the
same case is never the same as the first. Lawyers and witnesses are
stale; opportunities for impeachment that may have little or much
actual significance are present in the second trial that were not
present in the first; a witness may be available at one time but
not the other; the tactics on cross-examination, or on the
presentation of evidence, in the first trial will be influenced by
judgment of what may happen at the second; the strategy in a
nonjury trial may be different than in a proceeding before a jury.
Clearly, if a defendant
Page 427 U. S. 636
has participated in a full first-tier nonjury trial, his jury
trial in the second tier is significantly different from the normal
The Court responds by indicating that "Massachusetts permits an
accused to circumvent trial in the first tier by admitting to
sufficient findings of fact." [Footnote
] But if we presume that the defendant is innocent until
proved guilty, we must also assume that the innocent defendant
would deny or contradict the evidence offered by the prosecutor.
The choice between admitting the truth and also the prima
sufficiency of evidence the defendant considers false or
misleading, on the one hand, or insisting on a full nonjury trial
on the other, is not an insignificant price to pay for the exercise
of a constitutional right.
Page 427 U. S. 637
Nor does the right to a trial de novo
by taking an
immediate appeal make the judge's guilty finding and sentence
entirely meaningless. Apart from any legal consequence, the finding
certainly tarnishes the defendant's reputation. [Footnote 2/3
] The finding, and the first judge's
sentencing determination may have a greater impact on the second
trial judge than the mere return of an indictment. Moreover, if we
presume that at least some laymen have some knowledge of the law,
we must also recognize the likelihood that some jurors at the
second-tier trial will be aware of the first conviction. Such
awareness inevitably compromises the defendant's presumption of
innocence. Moreover, a judge's instructions cannot adequately avoid
this risk of prejudice without creating the additional risk of
letting other jurors know about the first conviction.
Unquestionably, in a great majority of proceedings the two-tier
system may expedite the disposition of cases and, indeed, may give
a defendant two opportunities to establish his innocence. But that
fact is of no significance to the individual who wants only one
trial and who wants that trial to be conducted before a jury. The
Constitution guarantees him that protection; that guarantee is not
fulfilled by a State which eventually offers the defendant the kind
of trial he is entitled to receive in the first instance. Cf.
Ward v. Village of Monroeville, 409 U. S.
, 409 U. S. 61
The burden on the right to a jury trial imposed by Massachusetts is
Page 427 U. S. 638
because the Commonwealth has offered no legitimate justification
for its requirement of a first-tier nonjury trial.
Callan v. Wilson, 127 U. S. 540
correctly decided; it should be followed. I respectfully
At oral argument, the Assistant Attorney General of the
Commonwealth was asked to explain the reason for the
"QUESTION: Well, why not, when the man is going to appeal, why
just say, Well, since you're going to appeal and you're going to
get a jury trial, you don't have to go through this other one. What
good is the first hearing to the State, where you know the man is
going to appeal and ask for a jury trial?"
"What benefit does the State have for the first tier?"
"MR. IRWIN: Well, in the situation that you gave, Mr. Justice
Marshall, I would say the State really has no benefit if what
you're suggesting is, the situation that I think you are, that
where they know he's going to appeal."
Tr. of Oral Arg. 34-35.
at 427 U. S. 630
This conclusion is based largely on the following comments made by
counsel at oral argument:
"QUESTION: In your Massachusetts system, is he able to stand
aside at the first tier? As was the case in Kentucky, in Colten
"MR. HAGOPIAN: No, he can't."
"QUESTION: What does he do?"
"MR. HAGOPIAN: The most he can do is just sit with his counsel,
the government will put on their witnesses; he can -- there is an
informal procedure, that's not statutory, what's known as
submitting to informal admissions of facts. Which means that you're
not really going to contest the trial, you'll allow hearsay to go
on. The government still puts its parade of witnesses on. But it's
a means of speeding up the first tier trial. But he's still
convicted if found guilty. But there's no way of bypassing that at
Tr. of Oral Arg. 13.
Without questioning the accuracy of those comments as they apply
in many proceedings, it should be noted that this is not a
procedure set forth in any written statute or rule, and conceivably
may or may not be followed by some of the many judges who preside
at first-tier proceedings. In all events, for reasons stated in the
text, I consider it an insufficient justification for not allowing
the defendant an unequivocal right to waive the first trial
To dramatize this point, we might make the not entirely
unrealistic hypothetical assumption that a defendant might suddenly
suffer a fatal heart attack when the trial judge announces his
finding and sentence. More realistically, we need simply recognize
the fact that many convicted defendants will be unwilling to
undergo the ordeal of a second trial after being found guilty by a