Florida has a rule of criminal procedure requiring a defendant
who intends to rely on an alibi to disclose to the prosecution the
names of his alibi witnesses; the prosecution must, in turn,
disclose to the defense the names of witnesses to rebut the alibi.
Failure to comply can result in exclusion of alibi evidence at
trial (except for the defendant's own testimony) or, in the case of
the State, exclusion of the rebuttal evidence. Petitioner, who was
charged with robbery, complied with the rule after failing to be
relieved of its requirements. His pretrial motion to impanel a
12-man jury, instead of the six-man jury Florida law provides for
noncapital cases, was denied. At trial, the State used a deposition
of petitioner's alibi witness to impeach the witness. Petitioner
was convicted, and the appellate court affirmed. Petitioner claims
that his Fifth Amendment rights were violated, on the ground that
the notice-of-alibi rule required him to furnish the State with
information useful in convicting him, and that his Sixth Amendment
right was violated on the ground that the six-man jury deprived him
of the right to "trial by jury" under the Sixth Amendment.
Held:
1. Florida's notice-of-alibi rule does not violate the Fifth
Amendment as made applicable to the States by the Fourteenth
Amendment. Pp.
399 U. S.
80-86.
(a) This discovery rule is designed to enhance the search for
truth in criminal trials by giving both the accused and the State
opportunity to investigate certain facts crucial to the issue of
guilt or innocence, and comports with requirements for due process
and a fair trial. Pp.
399 U. S. 81
82.
(b) The rule, at most, accelerated the timing of petitioner's
disclosure of an alibi defense, and thus did not violate the
privilege against compelled self-incrimination. Pp.
399 U. S.
82-86.
2. The constitutional guarantee of a trial by jury does not
require that jury membership be fixed at 12, a historically
accidental figure. Although accepted at common law, the Framers did
not explicitly intend to forever codify as a constitutional
requirement a feature not essential to the Sixth Amendment's
purpose of interposing
Page 399 U. S. 79
between the defendant and the prosecution the common sense
judgment of his peers. Pp.
399 U. S. 86-103.
224 So. 2d 406, affirmed.
MR. JUSTICE WHITE delivered the opinion of the Court.
Prior to his trial for robbery in the State of Florida,
petitioner filed a "Motion for a Protective Order," seeking to be
excused from the requirements of Rule 1.200 of the Florida Rules of
Criminal Procedure. That rule requires a defendant, on written
demand of the prosecuting attorney, to give notice in advance of
trial if the defendant intends to claim an alibi, and to furnish
the prosecuting attorney with information as to the place where he
claims to have been and with the names and addresses of the alibi
witnesses he intends to use. [
Footnote 1] In his motion, petitioner openly declared his
intent to claim an alibi, but objected to the further disclosure
requirements on the ground that the rule "compels the Defendant in
a criminal case to be a witness against himself" in violation of
his Fifth and Fourteenth Amendment rights. [
Footnote 2] The motion was denied. Petitioner also
filed a pretrial motion to impanel a 12-man jury instead of the
six-man
Page 399 U. S. 80
jury provided by Florida law in all but capital cases. [
Footnote 3] That motion too was denied.
Petitioner was convicted as charged and was sentenced to life
imprisonment. [
Footnote 4] The
District Court of Appeal affirmed, rejecting petitioner's claims
that his Fifth and Sixth Amendment rights had been violated. We
granted certiorari. [
Footnote
5] 396 U.S. 955 (1969).
I
Florida's "notice of alibi" rule is, in essence, a requirement
that a defendant submit to a limited form of pretrial discovery by
the State whenever he intends to rely at trial on the defense of
alibi. In exchange for the defendant's disclosure of the witnesses
he proposes to use to establish that defense, the State, in turn,
is required to notify the defendant of any witnesses it proposes to
offer in rebuttal to that defense. Both sides are under a
continuing duty promptly to disclose the names and addresses of
additional witnesses bearing on the alibi as they become available.
The threatened sanction for failure to comply is the exclusion at
trial of the defendant's alibi evidence -- except for his own
testimony -- or, in the case of the State, the exclusion of the
State's evidence offered in rebuttal of the alibi. [
Footnote 6]
In this case, following the denial of his Motion for a
Protective Order, petitioner complied with the alibi
Page 399 U. S. 81
rule and gave the State the name and address of one Mary Scotty.
Mrs. Scotty was summoned to the office of the State Attorney on the
morning of the trial, where she gave pretrial testimony. At the
trial itself, Mrs. Scotty, petitioner, and petitioner's wife all
testified that the three of them had been in Mrs. Scotty's
apartment during the time of the robbery. On two occasions during
cross-examination of Mrs. Scotty, the prosecuting attorney
confronted her with her earlier deposition in which she had given
dates and times that, in some respects, did not correspond with the
dates and times given at trial. Mrs. Scotty adhered to her trial
story, insisting that she had been mistaken in her earlier
testimony. [
Footnote 7] The
State also offered in rebuttal the testimony of one of the officers
investigating the robbery who claimed that Mrs. Scotty had asked
him for directions on the afternoon in question during the time
when she claimed to have been in her apartment with petitioner and
his wife. [
Footnote 8]
We need not linger over the suggestion that the discovery
permitted the State against petitioner in this case deprived him of
"due process" or a "fair trial." Florida law provides for liberal
discovery by the defendant against the State, [
Footnote 9] and the "notice of alibi" rule is
itself carefully hedged with reciprocal duties requiring state
disclosure to the defendant. Given the ease with which an alibi can
be fabricated, the State's interest in protecting itself against an
eleventh-hour defense is both obvious and legitimate. Reflecting
this interest, "notice of alibi" provisions, dating at least from
1927, [
Footnote 10]
Page 399 U. S. 82
are now in existence in a substantial number of States.
[
Footnote 11] The adversary
system of trial is hardly an end in itself; it is not yet a poker
game in which players enjoy an absolute right always to conceal
their cards until played. [
Footnote 12] We find ample room in that system, at least
as far as "due process" is concerned, for the instant Florida rule,
which is designed to enhance the search for truth in the criminal
trial by insuring both the defendant and the State ample
opportunity to investigate certain facts crucial to the
determination of guilt or innocence.
Petitioner's major contention is that he was "compelled . . . to
be a witness against himself," contrary to the command of the Fifth
and Fourteenth Amendments, because the "notice of alibi" rule
required him to give the State the name and address of Mrs. Scotty
in advance of trial, and thus to furnish the State with information
useful in convicting him. No pretrial statement of petitioner was
introduced at trial, but, armed with Mrs. Scotty's name and address
and the knowledge
Page 399 U. S. 83
that she was to be petitioner's alibi witness, the State was
able to take her deposition in advance of trial and to find
rebuttal testimony. Also, requiring him to reveal the elements of
his defense is claimed to have interfered with his right to wait
until after the State had presented its case to decide how to
defend against it. We conclude, however, as has apparently every
other court that has considered the issue, [
Footnote 13] that the privilege against
self-incrimination is not violated by a requirement that the
defendant give notice of an alibi defense and disclose his alibi
witnesses. [
Footnote 14]
The defendant in a criminal trial is frequently forced to
testify himself and to call other witnesses in an effort to reduce
the risk of conviction. When he presents his witnesses, he must
reveal their identity and submit them to cross-examination which,
in itself, may prove incriminating or which may furnish the State
with leads to
Page 399 U. S. 84
incriminating rebuttal evidence. That the defendant faces such a
dilemma demanding a choice between complete silence and presenting
a defense has never been thought an invasion of the privilege
against compelled self-incrimination. The pressures generated by
the State's evidence may be severe, but they do not vitiate the
defendant's choice to present an alibi defense and witnesses to
prove it, even though the attempted defense ends in catastrophe for
the defendant. However "testimonial" or "incriminating" the alibi
defense proves to be, it cannot be considered "compelled" within
the meaning of the Fifth and Fourteenth Amendments. Very similar
constraints operate on the defendant when the State requires
pretrial notice of alibi and the naming of alibi witnesses. Nothing
in such a rule requires the defendant to rely on an alibi or
prevents him from abandoning the defense; these matters are left to
his unfettered choice. [
Footnote
15] That choice must
Page 399 U. S. 85
be made, but the pressures that bear on his pretrial decision
are of the same nature as those that would induce him to call alibi
witnesses at the trial: the force of historical fact beyond both
his and the State's control and the strength of the State's case
built on these facts. Response to that kind of pressure by offering
evidence or testimony is not compelled self-incrimination
transgressing the Fifth and Fourteenth Amendments.
In the case before us, the "notice of alibi" rule, by itself, in
no way affected petitioner's crucial decision to call alibi
witnesses or added to the legitimate pressures leading to that
course of action. At most, the rule only compelled petitioner to
accelerate the timing of his disclosure, forcing him to divulge at
an earlier date information that the petitioner from the beginning
planned to divulge at trial. Nothing in the Fifth Amendment
privilege entitles a defendant as a matter of constitutional right
to await the end of the State's case before announcing the nature
of his defense, any more than it entitles him to await the jury's
verdict on the State's case-in-chief before deciding whether or not
to take the stand himself.
Petitioner concedes that, absent the "notice of alibi" rule, the
Constitution would raise no bar to the court's granting the State a
continuance at trial on the ground of surprise as soon as the alibi
witness is called. [
Footnote
16] Nor
Page 399 U. S. 86
would there be self-incrimination problems if, during that
continuance, the State was permitted to do precisely what it did
here prior to trial: take the deposition of the witness and find
rebuttal evidence. But if so utilizing a continuance is permissible
under the Fifth and Fourteenth Amendments, then surely the same
result may be accomplished through pretrial discovery, as it was
here, avoiding the necessity of a disrupted trial. [
Footnote 17] We decline to hold that the
privilege against compulsory self-incrimination guarantees the
defendant the right to surprise the State with an alibi
defense.
II
In
Duncan v. Louisiana, 391 U.
S. 145 (1968), we held that the Fourteenth Amendment
guarantees a right to trial by jury in all criminal cases that --
were they to be tried in a federal court -- would come within the
Sixth Amendment's guarantee. Petitioner's trial for robbery on July
3, 1968, clearly falls within the scope of that holding.
See
Baldwin v. New York, ante, p.
399 U. S. 66;
DeStefano v. Woods, 392 U. S. 631
(1968). The question in this case, then, is whether the
constitutional guarantee of a trial by "jury" necessarily requires
trial by exactly 12 persons, rather than some lesser number -- in
this case, six. We hold that the 12-man panel is not a necessary
ingredient of "trial by jury," and that respondent's refusal to
impanel more than the six members provided for by Florida law did
not violate petitioner's Sixth Amendment rights as applied to the
States through the Fourteenth.
We had occasion in
Duncan v. Louisiana, supra, to
review briefly the oft-told history of the development
Page 399 U. S. 87
of trial by jury in criminal cases. [
Footnote 18] That history revealed a long tradition
attaching great importance to the concept of relying on a body of
one's peers to determine guilt or innocence as a safeguard against
arbitrary law enforcement. That same history, however, affords
little insight into the considerations that gradually led the size
of that body to be generally fixed at 12. [
Footnote 19] Some have suggested that the number
12 was fixed upon simply because that was the number of the
presentment jury from the hundred, from which the petit jury
developed. [
Footnote 20]
Page 399 U. S. 88
Other, less circular but more fanciful reasons for the number 12
have been given, "but they were all brought forward after the
number was fixed," [
Footnote
21] and rest on little more than mystical or superstitious
insights into the significance of "12." Lord Coke's explanation
that the "
number of twelve is much respected in
holy
writ, as 12
apostles, 12
stones, 12
tribes, etc.," [
Footnote 22] is typical. [
Footnote 23] In
Page 399 U. S. 89
short, while, sometime in the 14th century, the size of the jury
at common law came to be fixed generally at 12, [
Footnote 24] that particular feature of the
jury system appears to have been a historical accident, unrelated
to the great
Page 399 U. S. 90
purposes which gave rise to the jury in the first place.
[
Footnote 25] The question
before us is whether this accidental feature of the jury has been
immutably codified into our Constitution.
This Court's earlier decisions have assumed an affirmative
answer to this question. The leading case so construing the Sixth
Amendment is
Thompson v. Utah, 170 U.
S. 343 (1898). There, the defendant had been tried and
convicted by a 12-man jury for a crime committed in the Territory
of Utah. A new trial was granted, but, by that time, Utah had been
admitted as a State. The defendant's new trial proceeded under
Utah's Constitution, providing for a jury of only eight members.
This Court reversed the resulting conviction, holding that Utah's
constitutional provision was an
ex post facto law as
applied to the defendant. In reaching its conclusion, the Court
announced that the Sixth Amendment was applicable to the
defendant's trial when Utah was a Territory, and that the jury
referred to in the Amendment was a jury "constituted, as it was at
common law, of twelve persons, neither more nor less." 170 U.S. at
170 U. S. 349.
Arguably unnecessary for the result, [
Footnote 26]
Page 399 U. S. 91
this announcement was supported simply by referring to the Magna
Carta, [
Footnote 27] and by
quoting passages from treatises which noted -- what has already
been seen -- that, at common law, the jury did indeed consist of
12. Noticeably absent was any discussion of the essential step in
the argument: namely, that every feature of the jury as it existed
at common law -- whether incidental or essential to that
institution -- was necessarily included in the Constitution
wherever that document referred to a "jury." [
Footnote 28] Subsequent decisions have
reaffirmed the
Page 399 U. S. 92
announcement in
Thompson, often in dictum [
Footnote 29] and usually by relying
-- where there was any discussion of the issue at all -- solely on
the fact that the common law jury consisted of 12. [
Footnote 30]
See Patton v. United
States, 281 U. S. 276,
281 U. S. 288
(1930); [
Footnote 31]
Rasmussen v. United States, 197 U.
S. 516,
197 U. S. 519
(1905);
Maxwell v. Dow, 176 U. S. 581,
176 U. S. 586
(1900).
While "the intent of the Framers" is often an elusive quarry,
the relevant constitutional history casts considerable doubt on the
easy assumption in our past decisions that, if a given feature
existed in a jury at common law in 1789, then it was necessarily
preserved in the Constitution.
Page 399 U. S. 93
Provisions for jury trial were first placed in the Constitution
in Article III's provision that "[t]he Trial of all Crimes . . .
shall be by Jury; and such Trial shall be held in the State where
the said Crimes shall have been committed." [
Footnote 32] The "very scanty history [of this
provision] in the records of the Constitutional Convention"
[
Footnote 33] sheds little
light either way on the intended correlation between Article III's
"jury" and the features of the jury at common law. [
Footnote 34] Indeed, pending and after the
adoption of the Constitution, fears were expressed that Article
III's provision failed to preserve the common law right to be tried
by a "jury of the vicinage." [
Footnote 35] That concern, as well as the concern
Page 399 U. S. 94
to preserve the right to jury in civil, as well as criminal,
cases, furnished part of the impetus for introducing amendments to
the Constitution that ultimately resulted in the jury trial
provisions of the Sixth and Seventh Amendments. As introduced by
James Madison in the House, the Amendment relating to jury trial in
criminal cases would have provided that:
"The trial of all crimes . . . shall be by an impartial jury of
freeholders of the vicinage, with the requisite of unanimity for
conviction, of the right of challenge, and other accustomed
requisites. . . . [
Footnote
36]"
The Amendment passed the House in substantially this form, but,
after more than a week of debate in the Senate, it returned to the
House considerably altered. [
Footnote 37] While records of the actual debates that
occurred in
Page 399 U. S. 95
the Senate are not available, [
Footnote 38] a letter from Madison to Edmund Pendleton on
September 14, 1789, indicates that one of the Senate's major
objections was to the "vicinage" requirement in the House version.
[
Footnote 39] A conference
committee was appointed. As reported in a second letter by Madison
on September 23, 1789, the Senate remained opposed to the vicinage
requirement, partly because, in its view, the then-pending
judiciary bill -- which was debated at the same time as the
Amendment -- adequately preserved the common law vicinage feature,
making it unnecessary to freeze that requirement into the
Constitution. "The Senate," wrote Madison:
"are . . . inflexible in opposing a definition of the
locality of Juries. The vicinage, they contend, is either
too vague or too strict a term; too vague if depending on limits to
be fixed by the pleasure of the law, too strict if limited to the
county. It was proposed to insert after the word Juries, 'with the
accustomed requisites,' leaving the definition to be construed
according to the judgment of professional
Page 399 U. S. 96
men. Even this could not be obtained. . . . The Senate suppose
also that the provision for vicinage in the Judiciary bill will
sufficiently quiet the fears which called for an amendment on this
point. [
Footnote 40]"
The version that finally emerged from the Committee was the
version that ultimately became the Sixth Amendment, ensuring an
accused:
"the right to a speedy and public trial, by an impartial jury of
the State and district wherein the crime shall have been committed,
which district shall have been previously ascertained by law. . .
."
Gone were the provisions spelling out such common law features
of the jury as "unanimity," or "the accustomed requisites." And the
"vicinage" requirement itself had been replaced by wording that
reflected a compromise between broad and narrow definitions of that
term, and that left Congress the power to determine the actual size
of the "vicinage" by its creation of judicial districts. [
Footnote 41]
Three significant features may be observed in this sketch of the
background of the Constitution's jury trial provisions. First, even
though the vicinage requirement was as much a feature of the common
law jury as was the 12-man requirement, [
Footnote 42] the mere reference to "trial by jury" in
Article III was not interpreted to include that feature. Indeed, as
the subsequent debates over the Amendments indicate, disagreement
arose over whether the feature should be included at all in its
common law sense, resulting in the compromise described above.
Second, provisions that would have explicitly
Page 399 U. S. 97
tied the "jury" concept to the "accustomed requisites" of the
time were eliminated. Such action is concededly open to the
explanation that the "accustomed requisites" were thought to be
already included in the concept of a "jury." But that explanation
is no more plausible than the contrary one: that the deletion had
some substantive effect. Indeed, given the clear expectation that a
substantive change would be effected by the inclusion or deletion
of an explicit "vicinage" requirement, the latter explanation is,
if anything, the more plausible. Finally, contemporary legislative
and constitutional provisions indicate that, where Congress wanted
to leave no doubt that it was incorporating existing common law
features of the jury system, it knew how to use express language to
that effect. Thus, the Judiciary bill, signed by the President on
the same day that the House and Senate finally agreed on the form
of the Amendments to be submitted to the States, provided in
certain cases for the narrower "vicinage" requirements that the
House had wanted to include in the Amendments. [
Footnote 43] And the Seventh Amendment,
providing for jury trial in civil cases, explicitly added that "no
fact tried by a jury, shall be otherwise reexamined in any Court of
the United States, than according to the rules of the common law."
[
Footnote 44]
Page 399 U. S. 98
We do not pretend to be able to divine precisely what the word
"jury" imported to the Framers, the First Congress, or the States
in 1789. It may well be that the usual expectation was that the
jury would consist of 12, [
Footnote 45] and that hence, the most likely
conclusion
Page 399 U. S. 99
to be drawn is simply that little thought was actually given to
the specific question we face today. But there is absolutely no
indication in "the intent of the Framers" of an explicit decision
to equate the constitutional and common law characteristics of the
jury. Nothing in this history suggests, then, that we do violence
to the letter of the Constitution by turning to other than purely
historical considerations to determine which features of the jury
system, as it existed at common law, were preserved in the
Constitution. The relevant inquiry, as we see it, must be the
function that the particular feature performs and its relation to
the
Page 399 U. S. 100
purposes of the jury trial. Measured by this standard, the
12-man requirement cannot be regarded as an indispensable component
of the Sixth Amendment.
The purpose of the jury trial, as we noted in
Duncan,
is to prevent oppression by the Government.
"Providing an accused with the right to be tried by a jury of
his peers gave him an inestimable safeguard against the corrupt or
overzealous prosecutor and against the compliant, biased, or
eccentric judge."
Duncan v. Louisiana, supra, at
391 U. S. 156.
Given this purpose, the essential feature of a jury obviously lies
in the interposition between the accused and his accuser of the
common sense judgment of a group of laymen, and in the community
participation and shared responsibility that results from that
group's determination of guilt or innocence. The performance of
this role is not a function of the particular number of the body
that makes up the jury. To be sure, the number should probably be
large enough to promote group deliberation, free from outside
attempts at intimidation, and to provide a fair possibility for
obtaining a representative cross-section of the community. But we
find little reason to think that these goals are in any meaningful
sense less likely to be achieved when the jury numbers six than
when it numbers 12 -- particularly if the requirement of unanimity
is retained. [
Footnote 46]
And, certainly the reliability of the jury
Page 399 U. S. 101
as a factfinder hardly seems likely to be a function of its
size.
It might be suggested that the 12-man jury gives a defendant a
greater advantage, since he has more "chances" of finding a juror
who will insist on acquittal and thus prevent conviction. But the
advantage might just as easily belong to the State, which also
needs only one juror out of twelve insisting on guilt to prevent
acquittal. [
Footnote 47]
What few experiments have occurred -- usually in the civil area --
indicate that there is no discernible difference between the
results reached by the two different-sized juries. [
Footnote 48] In short, neither currently
available evidence nor theory [
Footnote 49] a suggests that the 12-man
Page 399 U. S. 102
jury is necessarily more advantageous to the defendant than a
jury composed of fewer members.
Similarly, while, in theory, the number of viewpoints
represented on a randomly selected jury ought to increase as the
size of the jury increases, in practice, the difference between the
12-man and the six-man jury in terms of the cross-section of the
community represented seems likely to be negligible. Even the
12-man jury cannot insure representation of every distinct voice in
the community, particularly given the use of the peremptory
challenge. As long as arbitrary exclusions of a particular class
from the jury rolls are forbidden,
see, e.g., Carter v. Jury
Commission, 396 U. S. 320,
396 U. S.
329-330 (1970), the concern that the cross-section will
be significantly diminished if the jury is decreased in size from
12 to six seems an unrealistic one.
We conclude, in short, as we began: the fact that the jury at
common law was composed of precisely 12 is a historical accident,
unnecessary to effect the purposes of the jury system and wholly
without significance "except to mystics."
Duncan v. Louisiana,
supra, at
391 U. S. 182
(HARLAN, J., dissenting). To read the Sixth Amendment as
Page 399 U. S. 103
forever codifying a feature so incidental to the real purpose of
the Amendment is to ascribe a blind formalism to the Framers which
would require considerably more evidence than we have been able to
discover in the history and language of the Constitution or in the
reasoning of our past decisions. We do not mean to intimate that
legislatures can never have good reasons for concluding that the
12-man jury is preferable to the smaller jury, or that such
conclusions -- reflected in the provisions of most States and in
our federal system [
Footnote
50] -- are in any sense unwise. Legislatures may well have
their own views about the relative value of the larger and smaller
juries, and may conclude that, wholly apart from the jury's primary
function, it is desirable to spread the collective responsibility
for the determination of guilt among the larger group. In capital
cases, for example, it appears that no State provides for less than
12 jurors -- a fact that suggests implicit recognition of the value
of the larger body as a means of legitimating society's decision to
impose the death penalty. Our holding does no more than leave these
considerations to Congress and the States, unrestrained by an
interpretation of the Sixth Amendment that would forever dictate
the precise number that can constitute a jury. Consistent with this
holding, we conclude that petitioner's Sixth Amendment rights, as
applied to the States through the Fourteenth Amendment, were not
violated by Florida's decision to provide a six-man, rather than a
12-man, jury. The judgment of the Florida District Court of Appeal
is
Affirmed.
MR. JUSTICE BLACKMUN took no part in the consideration or
decision of this case.
Page 399 U. S. 104
|
399 U.S.
78app|
APPENDIX TO OPINION OF THE COURT
Fla.Rule Crim.Proc. 1.200:
"Upon the written demand of the prosecuting attorney, specifying
as particularly as is known to such prosecuting attorney, the
place, date and time of the commission of the crime charged, a
defendant in a criminal case who intends to offer evidence of an
alibi in his defense shall, not less than ten days before trial or
such other time as the court may direct, file and serve upon such
prosecuting attorney a notice in writing of his intention to claim
such alibi, which notice shall contain specific information as to
the place at which the defendant claims to have been at the time of
the alleged offense and, as particularly as is known to defendant
or his attorney, the names and addresses of the witnesses by whom
he proposes to establish such alibi. Not less than five days after
receipt of defendant's witness list, or such other times as the
court may direct, the prosecuting attorney shall file and serve
upon the defendant the names and addresses (as particularly as are
known to the prosecuting attorney) of the witnesses the State
proposes to offer in rebuttal to discredit the defendant's alibi at
the trial of the cause. Both the defendant and the prosecuting
attorney shall be under a continuing duty to promptly disclose the
names and addresses of additional witnesses which come to the
attention of either party subsequent to filing their respective
witness lists as provided in this rule. If a defendant fails to
file and serve a copy of such notice as herein required, the court
may exclude evidence offered by such defendant for the purpose of
proving an alibi, except the testimony of the defendant himself. If
such notice is given by a
Page 399 U. S. 105
defendant, the court may exclude the testimony of any witness
offered by the defendant for the purpose of proving an alibi if the
name and address of such witness as particularly as is known to
defendant or his attorney is not stated in such notice. If the
prosecuting attorney fails to file and serve a copy on the
defendant of a list of witnesses as herein provided, the court may
exclude evidence offered by the state in rebuttal to the
defendant's alibi evidence. If such notice is given by the
prosecuting attorney, the court may exclude the testimony of any
witness offered by the prosecuting attorney for the purpose of
rebutting the defense of alibi if the name and address of such
witness as particularly as is known to the prosecuting attorney is
not stated in such notice. For good cause shown, the court may
waive the requirements of this rule."
[
Footnote 1]
The full text of the rule is set out in the appendix to this
opinion,
infra at
399 U. S. 104. Subsequent references to an appendix are
to the separately bound appendix filed with the briefs in this case
[hereinafter "App."].
[
Footnote 2]
See App. 5.
[
Footnote 3]
Fla.Stat. § 913 .10 (1) (1967):
"Twelve men shall constitute a jury to try all capital cases,
and six men shall constitute a jury to try all other criminal
cases."
[
Footnote 4]
See App. 82.
[
Footnote 5]
The Supreme Court of Florida had earlier held that it was
without jurisdiction to entertain petitioner's direct appeal from
the trial court.
See id. at 92. Under Florida law, the
District Court of Appeal became the highest court from which a
decision could be had.
See Fla.Const., Art. V, § 4(2);
Fla.App.Rule 2.1a(5)(a);
Ansin v. Thurston, 101 So. 2d
808, 810 (1958).
[
Footnote 6]
"For good cause shown," the court may waive the requirements of
the rule. Fla.Rule Crim.Proc. 1.200.
[
Footnote 7]
See App. 58-60.
[
Footnote 8]
Id. at 65-66.
[
Footnote 9]
See Fla.Rule Crim.Proc. 1.220. These discovery
provisions were invoked by petitioner in the instant case.
See App. 3, 4, 8.
[
Footnote 10]
See Epstein, Advance Notice of Alibi, 55 J.Crim.L.C.
& P.S. 29, 32 (1964).
[
Footnote 11]
In addition to Florida, at least 15 States appear to have alibi
notice requirements of one sort or another.
See Ariz.Rule
Crim.Proc. 192B (1956); Ind.Ann.Stat. §§ 9-1631 to 9-1633 (1956);
Iowa Code § 777.18 (1966); Kan.Stat.Ann. § 62-1341 (1964);
Mich.Comp.Laws §§ 768.20, 768.21 (1948); Minn.Stat. § 630.14
(1967); N.J.Rule 3:5-9 (1958); N.Y.Code Crim.Proc. § 295 (1958);
Ohio Rev.Code Ann. § 2945.58 (1954); Okla.Stat., Tit. 22, § 585
(1969); Pa.Rule Crim.Proc. 312 (1970); S.D.Comp.Laws §§ 23-37-5,
23-37-6 (1967); Utah Code Ann. § 77-22-17 (1953); Vt.Stat.Ann.,
Tit. 13, §§ 6561, 6562 (1959); Wis.Stat. § 955.07 (1961).
See
generally 6 J. Wigmore, Evidence § 1855b (3d ed.1940).
We do not, of course, decide that each of these alibi notice
provisions is necessarily valid in all respects; that conclusion
must await a specific context and an inquiry, for example, into
whether the defendant enjoys reciprocal discovery against the
State.
[
Footnote 12]
See, e.g., Brennan, The Criminal Prosecution: Sporting
Event or Quest for Truth?, 1963 Wash.U.L.Q. 279, 292.
[
Footnote 13]
E.g., State v. Stump, 254 Iowa 1181,
119 N.W.2d 210,
cert. denied, 375 U.S. 853 (1963);
State v.
Baldwin, 47 N.J. 379,
221 A.2d
199,
cert. denied, 385 U.S. 980 (1966);
People v.
Rakiec, 260 App.Div. 452, 457-458, 23 N.Y.S.2d 607, 612-613
(1940);
Commonwealth v. Vecchiolli, 208 Pa.Super. 483, 224
A.2d 96 (1966);
see Jones v. Superior
Court, 58 Cal. 2d 56,
372 P.2d 919 (1962); Louisell, Criminal Discovery and
Self-Incrimination: Roger Traynor Confronts the Dilemma, 53
Calif.L.Rev. 89 (1965); Traynor, Ground Lost and Found in Criminal
Discovery, 39 N.Y.U.L.Rev. 228 (1964); Comment, The
Self-Incrimination Privilege: Barrier to Criminal Discovery?, 51
Calif.L.Rev. 135 (1963); 76 Harv.L.Rev. 838 (1963).
[
Footnote 14]
We emphasize that this case does not involve the question of the
validity of the threatened sanction, had petitioner chosen not to
comply with the "notice of alibi" rule. Whether and to what extent
a State can enforce discovery rules against a defendant who fails
to comply, by excluding relevant, probative evidence is a question
raising Sixth Amendment issues which we have no occasion to
explore.
Cf. Brief for
Amicus Curiae 17-26. It is
enough that no such penalty was exacted here.
[
Footnote 15]
Petitioner's apparent suggestion to the contrary is simply not
borne out by the facts of this case. The mere requirement that
petitioner disclose in advance his intent to rely on an alibi in no
way "fixed" his defense as of that point in time. The suggestion
that the State, by referring to petitioner's proposed alibi in
opening or closing statements might have "compelled" him to follow
through with the defense in order to avoid an unfavorable inference
is a hypothetical totally without support in this record. The first
reference to the alibi came from petitioner's own attorney in his
opening remarks; the State's response did not come until after the
defense had finished direct examination of Mrs. Scotty. Petitioner
appears to raise this issue as a possible defect in alibi notice
requirements in general, without seriously suggesting that his
choice of defense at trial in this case would have been different
but for his prior compliance with the rule. Indeed, in his Motion
for a Protective Order, petitioner freely disclosed his intent to
rely on an alibi; his only objection was to the further requirement
that he disclose the nature of the alibi and the name of the
witness. On these facts, then, we simply are not confronted with
the question of whether a defendant can be compelled in advance of
trial to select a defense from which he can no longer deviate. We
do not mean to suggest, though, that such a procedure must
necessarily raise serious constitutional problems.
See State ex
rel. Simoi v. Burke, 41 Wis.2d 129, 137,
163 N.W.2d
177, 181 (1968) ("[i]f we are discussing the right of a
defendant to defer until the moment of his testifying the election
between alternative and inconsistent alibis, we have left the
concept of the trial as a search for truth far behind").
[
Footnote 16]
See Reply Brief for Petitioner 2 and n. 1.
[
Footnote 17]
It might also be argued that the "testimonial" disclosures
protected by the Fifth Amendment include only statements relating
to the historical facts of the crime, not statements relating
solely to what a defendant proposes to do at trial.
[
Footnote 18]
See Duncan v. Louisiana, 391 U.
S. 145,
391 U. S.
151-154 (1968).
[
Footnote 19]
In tracing the development of the jury from the time when the
jury performed a different, "inquisitory" function, James B. Thayer
notes the following:
"In early times, the inquisition had no fixed number. In the
Frankish empire, we are told of 66, 41, 20, 17, 13, 11, 8, 7, 53,
15, and a great variety of other numbers. So also, among the
Normans, it varied much, and 'twelve has not even the place of the
prevailing
rundzahl;' the documents show all sorts of
numbers -- 4, 5 6, 12, 13-18, 21, 27, 30, and so on. It seems to
have been the recognitions under Henry II that established twelve
as the usual number; even then, the number was not uniform."
The Jury and Its Development, 5 Harv.L.Rev. 295 (1892)
(citations omitted).
See J. Thayer, A Preliminary Treatise
on Evidence at the Common Law 85 (1898).
Similarly, Professor Scott writes:
"At the beginning of the thirteenth century, twelve was indeed
the usual, but not the invariable, number. But by the middle of the
fourteenth century, the requirement of twelve had probably become
definitely fixed. Indeed, this number finally came to be regarded
with something like superstitious reverence."
A. Scott, Fundamentals of Procedure in Actions at Law 75-76
(1922) (footnotes omitted).
[
Footnote 20]
1 W. Holdsworth, A History of English Law 325 (1927); Wells, The
Origin of the Petty Jury, 27 L.Q.Rev. 347, 357 (1911). The latter
author traces the development of the 12-man petit jury through the
following four stages. The first stage saw the development of the
presentment jury, made up generally of 12 persons from the hundred,
whose function was simply to charge the accused with a crime; the
test of his guilt or innocence was by some other means, such as
trial by ordeal, battle, or wager of law. In the second stage, the
presentment jury began to be asked for its verdict on the guilt or
innocence of the person it had accused, and hence began to function
as both a petit and a grand jury. In the third stage, "combination
juries" were formed to render the verdict in order to broaden the
base of representation beyond the local hundred, or borough, to
include the county. These juries were formed by adding one or more
presentment juries from one or more hundreds, as well as certain
officials such as coroners or knights.
"These combination juries numbered from twenty-four to
eighty-four jurors, and the number became embarrassingly large and
unwieldy, and the sense of the personal responsibility of each
juror was in danger of being lost."
Id. at 356. The obvious fourth step was the creation of
a special jury
"formed by selecting one or more jurors from each of several of
the presentment juries of the hundreds, until the number twelve is
reached . . . probably because that was the number of the
presentment jury from the hundred. Therefore, just as the
presentment jury represented the voice of the hundred in making the
accusation, so the jury of 'the country' with the same number,
represented the whole county in deciding whether the accused was
guilty or not."
Id. at 357.
Neither of these authors hazards a guess as to why the
presentment jury itself numbered 12.
[
Footnote 21]
Id. at 357
[
Footnote 22]
1 E. Coke, Institutes of the Laws of England *155a (1st Amer.
ed. 1812).
[
Footnote 23]
Thus, John Proffatt in his treatise on jury trials notes that
the reasons why the number of the petit jury is 12, are "quaintly
given" in Duncombe's Trials per Pais, as follows:
"[T]his number is no less esteemed by our own law than by holy
writ. If the twelve apostles on their twelve thrones must try us in
our eternal state, good reason hath the law to appoint the number
twelve to try us in our temporal. The tribes of Israel were twelve,
the patriarchs were twelve, and Solomon's officers were
twelve."
Trial by Jury 112 n. 4 (1877), quoting G. Duncombe, 1 Trials per
Pais 92-93 (8th ed. 1766).
Attempts have also been made to trace the number 12 to early
origins on the European Continent, particularly in Scandinavia.
See F. Busch, 1 Law and Tactics in Jury Trials § 24
(1959).
See generally W. Forsyth, History of Trial by Jury
4 (1852); T. Repp, Trial by Jury (1832). But even as to the
continental practice, no better reasons are discovered for the
number 12. Thus, Proffatt, in discussing the ancient Scandinavian
tribunals, comments:
"Twelve was not only the common number throughout Europe, but
was the favorite number in every branch of the polity and
jurisprudence of the Gothic nations."
"The singular unanimity in the selection of the number twelve to
compose certain judicial bodies is a remarkable fact in the history
of many nations. Many have sought to account for this general
custom, and some have based it on religious grounds. One of the
ancient kings of Wales, Morgan of Gla-Morgan, to whom is accredited
the adoption of the trial by jury in A. D. 725, calls it the
'Apostolic Law.' 'For,' said he, 'as Christ and his twelve apostles
were finally to judge the world, so human tribunals should be
composed of the king and twelve wise men.'"
Proffatt, Trial by Jury 11 n. 2 (1877) (citations omitted).
See also 1 L. Pike, A History of Crime in England 122
(1873).
In this connection, it is interesting to note the following
oath, required of the early 12-man jury:
"Hear this, ye Justices! that I will speak the truth of that
which ye shall ask of me on the part of the king, and I will do
faithfully to the best of my endeavour. So help me God, and these
holy Apostles."
W. Forsyth, Trial by Jury 197 (1852).
See Proffatt,
supra, at 42.
[
Footnote 24]
See supra, n19.
[
Footnote 25]
P. Devlin, Trial by Jury 8 (1956); F. Heller, The Sixth
Amendment 64 (1951); W. Willoughby, Principles of Judicial
Administration 503 (1929); Tamm, The Five-Man Civil Jury: A
Proposed Constitutional Amendment, 51 Geo.L.J. 120, 128-130 (1962);
Wiehl, The Six Man Jury, 4 Gonzaga L.Rev. 35, 38-39 (1968);
see Thayer,
supra, n19, at 89-90; White, Origin and Development of Trial by
Jury, 29 Tenn.L.Rev. 8, 15-16, 17 (1959).
[
Footnote 26]
At the time of the crime and at the first trial, the statutes of
the Territory of Utah -- wholly apart from the Sixth Amendment --
ensured Thompson a 12-man jury.
See 170 U.S. at
170 U. S. 345.
The Court found the
ex post facto question easy to resolve
once it was assumed that Utah's subsequent constitutional provision
deprived Thompson of a right previously guaranteed him by the
United States Constitution; the possibility that the same result
might have been reached solely on the basis of the rights formerly
accorded Thompson under the territorial statute was hinted at, but
was not explicitly considered.
[
Footnote 27]
Whether or not the Magna Carta's reference to a judgment by
one's peers was a reference to a "jury" -- a fact that historians
now dispute,
see, e.g., 1 F. Pollock & F. Maitland,
The History of English Law Before the Time of Edward I, p. 173 n. 3
(2d ed.1909); Frankfurter & Corcoran, Petty Federal Offenses
and the Constitutional Guaranty of Trial by Jury, 39 Harv.L.Rev.
917, 922 n. 14 (1926) (criticizing Thompson v. Utah's reliance on
the document "long after scholars had exposed this ancient error")
-- it seems clear that the Great Charter is not authority for
fixing the number of the jury at 12.
See W. McKechnie,
Magna Carta 134-138, 375-382 (1958); Scott, Trial by Jury and the
Reform of Civil Procedure, 31 Harv.L.Rev. 669, 672 (1918).
As the text indicates, the question is not whether the 12-man
jury is traced to 1215 or to 1789, but whether that particular
feature must be accepted as a
sine qua non of the jury
trial guaranteed by the Constitution.
See Heller,
supra, n 25, at
64.
[
Footnote 28]
The
Thompson opinion also reasoned that, if a jury can
be reduced from 12 to eight, then there was nothing to prevent its
similarly being reduced to four or two or even zero, thus
dispensing with the jury altogether.
See 170 U.S. at
170 U. S. 353.
That bit of "logic," resurrected today in MR. JUSTICE HARLAN's
concurring opinion,
post at
399 U.S. 126, suffers somewhat as soon
as one recognizes that he can get off the "slippery slope" before
he reaches the bottom. We have no occasion in this case to
determine what minimum number can still constitute a "jury," but we
do not doubt that six is above that minimum.
[
Footnote 29]
A ruling that the Sixth Amendment refers to a common law jury
was essential to the holding in
Rassmussen v. United
States, 197 U. S. 516
(1905), where the Court held invalid a conviction by a six-man jury
in Alaska. The ruling was accepted at the Government's concession
without discussion or citation; the major focus of the case was on
the question whether the Sixth Amendment was applicable to the
territory in question at all.
See 197 U.S. at
197 U. S.
519.
[
Footnote 30]
Similarly, cases interpreting the jury trial provisions of the
Seventh Amendment generally leap from the fact that the jury
possessed a certain feature at common law to the conclusion that
that feature must have been preserved by the Amendment's simple
reference to trial by "jury."
E.g., Capital Traction Co. v.
Hof, 174 U. S. 1,
174 U. S. 13-14
(1899);
American Publishing Co. v. Fisher, 166 U.
S. 464,
166 U. S. 468
(1897). While much of our discussion in this case may be thought to
bear equally on the interpretation of the Seventh Amendment's jury
trial provisions, we emphasize that the question is not before us;
we do not decide whether, for example, additional references to the
"common law" that occur in the Seventh Amendment might support a
different interpretation.
See infra at
399 U. S. 97 and
n 44.
[
Footnote 31]
The
Patton opinion furnishes an interesting
illustration of the Court's willingness to reexamine earlier
assertions about the nature of "jury trial" in almost every respect
except the 12-man-jury requirement.
Patton reaffirmed the
12-man requirement with a simple citation to
Thompson v.
Utah, while at the same time discarding as "dictum" the
equally dogmatic assertion in
Thompson that the
requirement could not be waived.
See 281 U.S. at
281 U. S.
293.
[
Footnote 32]
U.S.Const., Art. III, § 2, cl. 3.
[
Footnote 33]
Frankfurter & Corcoran,
supra, n 27, at 969.
[
Footnote 34]
The only attention given the jury trial provisions involved such
questions as whether the right should also be extended to civil
cases,
see Henderson, The Background of the Seventh
Amendment, 80 Harv.L.Rev. 289, 292-294 (1966), whether the wording
should embrace the "trial of all crimes" or the "trial of all
criminal offenses,"
see Frankfurter & Corcoran,
supra, n 27, at
969, and how to provide for the trial of crimes not committed in
any State,
id. at 969 n. 244.
See 2 M. Farrand,
Records of the Federal Convention 144, 173, 187, 433, 438, 576,
587-588, 601, 628 (1911).
See also 4
id. at 121
(1937) (indexing all references to Art. III, § 2, cl. 3 in
Farrand's records).
[
Footnote 35]
See Heller,
supra, n 25, at 31-33, 93; Warren, New Light on the History
of the Federal Judiciary Act of 1789, 37 Harv.L.Rev. 49, 105
(1923). Technically, "vicinage" means neighborhood, and "vicinage
of the jury" meant jury of the neighborhood or, in medieval
England, jury of the county.
See 4 W. Blackstone,
Commentaries *350-351. While Article III provided for venue, it did
not impose the explicit juror residence requirement associated with
the concept of "vicinage."
See Maryland v.
Brown, 295 F. Supp.
63, 80 (1969). In the Virginia Convention, Madison conceded
that the omission was deliberate, and defended it as follows:
"It was objected yesterday that there was no provision for a
jury from the vicinage. If it could have been done with safety, it
would not have been opposed. It might so happen that a trial would
be impracticable in the county. Suppose a rebellion in a whole
district, would it not be impossible to get a jury? The trial by
jury is held as sacred in England as in America. There are
deviations of it in England; yet greater deviations have happened
here since we established our independence than have taken place
there for a long time, though it be left to the legislative
discretion. It is a misfortune, in any case, that this trial should
be departed from, yet, in some cases, it is necessary. It must be
therefore left to the discretion of the legislature to modify it
according to circumstances. This is a complete and satisfactory
answer."
3 M. Farrand, Records of the Federal Convention 332 (1911).
[
Footnote 36]
1 Annals of Cong. 435 (1789).
[
Footnote 37]
The Senate Journal indicates that every clause in the House
version of the proposed Amendment was deleted except the clause
relating to grand jury indictment. Senate Journal, Sept 4, 1789,
1st Cong., 1st Sess., 71. A subsequent motion to restore the words
providing for trial
"by an impartial jury of the vicinage, with the requisite of
unanimity for conviction, the right of challenge, and other
accustomed requisites"
failed of adoption. Senate Journal, Sept. 9, 1789, 1st Cong.,
1st Sess., 77.
[
Footnote 38]
The principal source of information on the proceedings of the
Senate in the First Congress is the Journal of Senator Maclay of
Pennsylvania, who unfortunately was ill during the Senate debate on
the amendments.
See Journal of William Maclay 144-151
(1927); Heller,
supra, n 25, at 31-32.
[
Footnote 39]
Madison writes:
"The Senate have sent back the plan of amendments with some
alterations which strike, in my opinion, at the most salutary
articles. In many of the States, juries, even in criminal cases,
are taken from the State at large; in others, from districts of
considerable extent; in very few from the County alone. Hence, a
dislike to the restraint with respect to vicinage which has
produced a negative on that clause. . . . Several others have had a
similar fate."
Letter from James Madison to Edmund Pendleton, Sept. 14, 1789,
in 1 Letters and Other Writings of James Madison 491 (1865).
[
Footnote 40]
Letter from James Madison to Edmund Pendleton, Sept. 23, 1789,
in
id. at 492-493.
See generally Heller,
supra, n 25, at
28-34; Warren,
supra, n 35, at 118-132.
[
Footnote 41]
See Heller,
supra, n 25, at 93.
[
Footnote 42]
Proffatt,
supra, n.
23 at 119; 1 G. Curtis, History of the Origin, Formation,
and Adoption of the Constitution of the United States 23
(1863).
[
Footnote 43]
The Act provided in § 29:
"That, in cases punishable with death, the trial shall be had in
the county where the offence was committed, or where that cannot be
done without great inconvenience, twelve petit jurors at least
shall be summoned from thence."
Act of Sept. 24, 1789, § 29, 1 Stat. 88.
[
Footnote 44]
Similarly, the First Continental Congress resolved in October
1774:
"That the respective colonies are entitled to the common law of
England, and more especially to the great and inestimable privilege
of being tried by their peers of the vicinage,
according to the
course of that law."
1 Journals of the Continental Congress 69 (C. Ford ed.1904)
(emphasis added). And the Northwest Ordinance of 1787 declared that
the inhabitants of that Territory should
"always be entitled to the benefits of the writs of habeas
corpus, and of the trial by jury . . . and of judicial proceedings
according to the course of the common law."
Ordinance of 1787, Art. II, 1 U.S.C. xxxviii (emphasis added).
See Capital Traction Co. v. Hof, 174 U. S.
1,
174 U. S. 5-8
(1899) (concluding from these sources that the explicit reference
to the "common law" in the Seventh Amendment, referred to the rules
of the common law of England, not the rules as modified by local or
state practice).
[
Footnote 45]
One scholar, however, in investigating the reception of the
English common law by the early American colonies, notes that the
process:
"was not so simple as the legal theory would lead us to assume.
While their general legal conceptions were conditioned by, and
their terminology derived from, the common law, the early colonists
were far from applying it as a technical system -- they often
ignored it or denied its subsidiary force, and they consciously
departed from many of its most essential principles."
Reinsch, The English Common Law in the Early American Colonies,
in 1 Select Essays in Anglo-American Legal History 367, 415
(1907).
With respect to the jury trial in particular, while most of the
colonies adopted the institution in its English form at an early
date, more than one appears to have accepted the institution at
various stages only with "various modifications."
See id.
at 412. Thus, Connecticut permitted majority decision in case of
continued failure to agree,
id. at 386, Virginia expressed
regret at being unable to retain the "vicinage" requirement of the
English jury,
id. at 405, Pennsylvania permitted majority
verdicts and employed juries of six or seven,
id. at 398,
and the Carolinas discontinued the unanimity requirement, 5 F.
Thorpe, Federal and State Constitutions 2781 (1909) (Art. 69,
"Fundamental Constitutions of Carolina").
See also Heller,
supra, n 25, at
13-21.
The States that had adopted Constitutions by the time of the
Philadelphia Convention in 1787 appear, for the most part, to have
either explicitly provided that the jury would consist of 12,
see Va.Const. of 1776, § 8, in 7 F. Thorpe, Federal and
State Constitutions 3813 (1909), or to have subsequently
interpreted their jury trial provisions to include that
requirement. In at least one instance involving conviction by eight
jurors, a subsequent South Carolina decision interpreting the
provision for trial by "jury," refused to declare the 12-man
requirement an essential feature of that institution, immune from
change by the legislature.
See State v. Starling, 15 Rich.
120, 134 (S.C.Ct. of Errors 1867). The conviction was affirmed
without deciding the question, since the State had, by that time,
adopted a Constitution specifically empowering the legislature to
determine the number of jurors in certain inferior courts. South
Carolina remains today one of apparently five States, including
Florida, that provide for juries of less than 12 in felony cases
where imprisonment for more than one year may be imposed.
See La.Const., Art. 7, § 41; La.Crim.Proc.Code Ann., Art.
779 (Supp. 1969); S.C.Const., Art. 1, §§ 18, 25; Art. 5, § 22;
S.C.Code Ann. §§ 15-618, 15-612 (1962); Tex.Const., Art. 1, §§ 10,
15; Art. 5, § 17; Tex.Code Crim.Proc., Arts. 4.07, 37.02 (1966);
Tex.Pen.Code, Art. 1148 (1961); Utah Const., Art. 1, §§ 10, 12;
Utah Code Ann. § 78-46-5 (1953).
In addition, it appears that at least nine States presently
provide for less than 12-man juries in trials of certain offenses
carrying maximum penalties of one year's imprisonment.
See
Brief for Appellee A13-A15,
Baldwin v. New York, ante, p.
399 U. S. 66
(collecting statutory provisions).
See also 17 Mass.L.Q.
No. 4, p. 12 (1932) (noting States that have interpreted the "right
of trial by jury" to permit trial by less than 12 in certain
cases). For a "poll of state practice,"
see MR. JUSTICE
HARLAN's concurring opinion,
post at
399 U.S. 122,
399 U.S. 136-137, and App.
[
Footnote 46]
We intimate no view whether or not the requirement of unanimity
is an indispensable element of the Sixth Amendment jury trial.
While much of the above historical discussion applies as well to
the unanimity as to the 12-man requirement, the former, unlike the
latter, may well serve an important role in the jury function, for
example, as a device for insuring that the Government bear the
heavier burden of proof.
See Hibdon v. United States, 204
F.2d 834, 838 (C.A. 6th Cir.1953); Tamm,
supra, n 25, at 139.
But cf.
Comment, Waiver of Jury Unanimity -- Some Doubts About Reasonable
Doubt, 21 U.Chi.L.Rev. 438, 441-443 (1954).
See generally
American Bar Association Project on Standards for Criminal Justice,
Trial by Jury 42-45 (Approved Draft 1968).
[
Footnote 47]
It is true, of course, that the "hung jury" might be thought to
result in a minimal advantage for the defendant, who remains
unconvicted and who enjoys the prospect that the prosecution will
eventually be dropped if subsequent juries also "hang." Thus, a
100-man jury would undoubtedly be more favorable for defendants
than a 12-man jury. But when the comparison is between 12 and six,
the odds of continually "hanging" the jury seem slight, and the
numerical difference in the number needed to convict seems unlikely
to inure perceptibly to the advantage of either side.
[
Footnote 48]
See Wiehl,
supra, n 25, at 40-41; Tamm,
supra, n 25, at 134-136; Cronin, Six-Member Juries
in District Courts, 2 Boston B.J. No. 4, p. 27 (1958); Six-Member
Juries Tried in Massachusetts District Court, 42 J.Am.Jud.Soc. 136
(1958).
See also New Jersey Experiments with Six-Man Jury,
9 Bull. of the Section of Jud.Admin. of the ABA (May 1966);
Phillips, A Jury of Six in All Cases, 30 Conn.B.J. 354 (1956).
[
Footnote 49]
Studies of the operative factors contributing to small group
deliberation and decisionmaking suggest that jurors in the minority
on the first ballot are likely to be influenced by the proportional
size of the majority aligned against them.
See H. Kalven
& H Zeisel, The American Jury 462-463, 488-489 (1966); C.
Hawkins, Interaction and Coalition Realignments in
Consensus-Seeking Group: A Study of Experimental Jury Deliberations
13, 146, 156, Aug. 17, 1960 (unpublished thesis on file at Library
of Congress);
cf. Asch, Effects of Group Pressure Upon the
Modification and Distortion of Judgments, in Readings in Social
Psychology 2 (G. Swanson, T. Newcomb & E. Hartley et al., eds.,
1952).
See generally Note, On Instructing Deadlocked
Juries, 78 Yale L.J. 100, 108 and n. 30 (and authorities cited),
110-111 (1968). Thus, if a defendant needs initially to persuade
four jurors that the State has not met its burden of proof in order
to escape ultimate conviction by a 12-man jury, he arguably escapes
by initially persuading half that number in a six-man jury; random
reduction, within limits, of the absolute number of the jury would
not affect the outcome.
See also C. Joiner, Civil Justice
and the Jury 31, 83 (1962) (concluding that the deliberative
process should be the same in either the six- or 12-man jury).
[
Footnote 50]
See Fed.Rule Crim.Proc. 23(b) ("[j]uries shall be of
12").
MR. CHIEF JUSTICE BURGER, concurring.
I join fully in MR. JUSTICE WHITE's opinion for the Court. I see
an added benefit to the "notice of alibi" rule in that it will
serve important functions by way of disposing of cases without
trial in appropriate circumstances -- a matter of considerable
importance when courts, prosecution offices, and legal aid and
defender agencies are vastly overworked. The prosecutor upon
receiving notice will, of course, investigate prospective alibi
witnesses. If he finds them reliable and unimpeachable, he will
doubtless reexamine his entire case, and this process would very
likely lead to dismissal of the charges. In turn, he might be
obliged to determine why false charges were instituted and where
the breakdown occurred in the examination of evidence that led to a
charge.
On the other hand, inquiry into a claimed alibi defense may
reveal it to be contrived and fabricated, and the
Page 399 U. S. 106
witnesses accordingly subject to impeachment or other attack. In
this situation, defense counsel would be obliged to reexamine his
case, and, if he found his client has proposed the use of false
testimony, either seek to withdraw from the case or try to persuade
his client to enter a plea of guilty, possibly by plea discussions
which could lead to disposition on a lesser charge.
In either case, the ends of justice will have been served, and
the processes expedited. These are the likely consequences of an
enlarged and truly reciprocal pretrial disclosure of evidence and
the move away from the "sporting contest" idea of criminal
justice.
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins,
concurring in part and dissenting in part.
The Court today holds that a State can, consistently with the
Sixth Amendment to the United States Constitution, try a defendant
in a criminal case with a jury of six members. I agree with that
decision for substantially the same reasons given by the Court. My
Brother HARLAN, however, charges that the Court's decision on this
point is evidence that the "incorporation doctrine," through which
the specific provisions of the Bill of Rights are made fully
applicable to the States under the same standards applied in
federal courts [
Footnote 2/1] will
somehow result in a "dilution" of the protections required by those
provisions. He asserts that this Court's desire to relieve the
States from the rigorous requirements of the Bill of Rights is
bound to cause reexamination and modification of prior decisions
interpreting those provisions as applied in federal courts in order
simultaneously to apply the provisions equally to the State and
Federal Governments and to avoid undue restrictions on the States.
This assertion finds no support in today's decision or any
Page 399 U. S. 107
other decision of this Court. We have emphatically
"rejected the notion that the Fourteenth Amendment applies to
the States only a 'watered-down, subjective version of the
individual guarantees of the Bill of Rights.'"
Malloy v. Hogan, 378 U. S. 1,
378 U. S. 111
(1964). Today's decision is in no way attributable to any desire to
dilute the Sixth Amendment in order more easily to apply it to the
States, but follows solely as a necessary consequence of our duty
to reexamine prior decisions to reach the correct constitutional
meaning in each case. The broad implications in early cases
indicating that only a body of 12 members could satisfy the Sixth
Amendment requirement arose in situations where the issue was not
squarely presented and were based, in my opinion, on an improper
interpretation of that amendment. Had the question presented here
arisen in a federal court before our decision in
Duncan v.
Louisiana, 391 U. S. 145
(1968), this Court would still, in my view, have reached the result
announced today. In my opinion, the danger of diluting the Bill of
Rights protections lies not in the "incorporation doctrine," but in
the "shock the conscience" test on which my Brother HARLAN would
rely instead -- a test which depends, not on the language of the
Constitution, but solely on the views of a majority of the Court as
to what is "fair" and "decent."
The Court also holds that a State can require a defendant in a
criminal case to disclose in advance of trial the nature of his
alibi defense and give the names and addresses of witnesses he will
call to support that defense. This requirement, the majority says,
does not violate the Fifth Amendment prohibition against compelling
a criminal defendant to be a witness against himself. Although this
case itself involves only a "notice of alibi" provision, it is
clear that the decision means that a State can require a defendant
to disclose in advance of trial any
Page 399 U. S. 108
and all information he might possibly use to defend himself at
trial. This decision, in my view, is a radical and dangerous
departure from the historical and constitutionally guaranteed right
of a defendant in a criminal case to remain completely silent,
requiring the State to prove its case without any assistance of any
kind from the defendant himself.
I
The core of the majority's decision is an assumption that
compelling a defendant to give notice of an alibi defense before a
trial is no different from requiring a defendant, after the State
has produced the evidence against him at trial, to plead alibi
before the jury retires to consider the case. This assumption is
clearly revealed by the statement that
"the pressures that bear on [a defendant's] pretrial decision
are of the same nature as those that would induce him to call alibi
witnesses at the trial: the force of historical fact beyond both
his and the State's control and the strength of the State's case
built on these facts."
Ante at
399 U. S. 85.
That statement is plainly and simply wrong as a matter of fact and
law, and the Court's holding based on that statement is a complete
misunderstanding of the protections provided for criminal
defendants by the Fifth Amendment and other provisions of the Bill
of Rights. [
Footnote 2/2]
Page 399 U. S. 109
A
When a defendant is required to indicate whether he might plead
alibi in advance of trial, he faces a vastly different decision
from that faced by one who can wait until the State has presented
the case against him before making up his mind. Before trial, the
defendant knows only what the State's case
might be.
Before trial, there is no such thing as the "strength of the
State's case"; there is only a range of possible cases. At that
time, there is no certainty as to what kind of case the State will
ultimately be able to prove at trial. Therefore, any appraisal of
the desirability of pleading alibi will be beset with guesswork and
gambling far greater than that accompanying the decision at the
trial itself. Any lawyer who has actually tried a case knows that,
regardless of the amount of pretrial preparation, a case looks far
different when it is actually being tried than when it is only
being thought about.
The Florida system, as interpreted by the majority, plays upon
this inherent uncertainty in predicting the possible strength of
the State's case in order effectively to coerce defendants into
disclosing an alibi defense that may never be actually used. Under
the Florida rule, a defendant who might plead alibi must, at least
10 days before the date of trial, tell the prosecuting attorney
that he might claim an alibi, or else the defendant faces the real
threat that he may be completely barred
Page 399 U. S. 110
from presenting witnesses in support of his alibi. According to
the Court, however, if he gives the required notice and later
changes his mind,
"[n]othing in such a rule requires [him] to rely on an alibi or
prevents him from abandoning the defense; these matters are left to
his unfettered choice."
Ante at
399 U. S. 84.
Thus, in most situations, defendants with any possible thought of
pleading alibi are, in effect, compelled to disclose their
intentions in order to preserve the possibility of later raising
the defense at trial. Necessarily, few defendants and their lawyers
will be willing to risk the loss of that possibility by not
disclosing the alibi. Clearly, the pressures on defendants to plead
an alibi created by this procedure are not only quite different
from the pressures operating at the trial itself, but are, in fact,
significantly greater. Contrary to the majority's assertion, the
pretrial decision cannot be analyzed as simply a matter of
"timing," influenced by the same factors operating at the trial
itself.
The Court apparently also assumes that a defendant who has given
the required notice can abandon his alibi without hurting himself.
Such an assumption is implicit in, and necessary for, the
majority's argument that the pretrial decision is no different from
that at the trial itself. I, however, cannot so lightly assume that
pretrial notice will have no adverse effects on a defendant who
later decides to forgo such a defense. Necessarily, the defendant
will have given the prosecutor the names of persons who may have
some knowledge about the defendant himself or his activities.
Necessarily, the prosecutor will have every incentive to question
these persons fully, and, in doing so, he may discover new leads or
evidence. Undoubtedly there will be situations in which the State
will seek to use such information -- information it would probably
never have obtained but for the defendant's coerced
cooperation.
Page 399 U. S. 111
B
It is unnecessary for me, however, to engage in any such
intellectual gymnastics concerning the practical effects of the
"notice of alibi" procedure, because the Fifth Amendment itself
clearly provides that "[n]o person . . . shall be compelled in any
criminal case to be a witness against himself." If words are to be
given their plain and obvious meaning, that provision, in my
opinion, states that a criminal defendant cannot be required to
give evidence, testimony, or any other assistance to the State to
aid it in convicting him of crime.
Cf. Schmerber v.
California, 384 U. S. 757,
384 U. S. 773
(1966) (BLACK, J., dissenting). The Florida "notice of alibi" rule,
in my opinion, is a patent violation of that constitutional
provision, because it requires a defendant to disclose information
to the State so that the State can use that information to destroy
him. It seems to me at least slightly incredible to suggest that
this procedure may have some beneficial effects for defendants.
There is no need to encourage defendants to take actions they think
will help them. The fear of conviction and the substantial cost or
inconvenience resulting from criminal prosecutions are more than
sufficient incentives to make defendants want to help themselves.
If a defendant thinks that making disclosure of an alibi before
trial is in his best interests, he will obviously do so. And the
only time the State needs the compulsion provided by this procedure
is when the defendant has decided that such disclosure is likely to
hurt his case.
It is no answer to this argument to suggest that the Fifth
Amendment, as so interpreted, would give the defendant an unfair
element of surprise, turning a trial into a "poker game" or
"sporting contest," for that tactical advantage to the defendant is
inherent in the type of trial required by our Bill of Rights. The
Framers
Page 399 U. S. 112
were well aware of the awesome investigative and prosecutorial
powers of government, and it was in order to limit those powers
that they spelled out in detail in the Constitution the procedure
to be followed in criminal trials. A defendant, they said, is
entitled to notice of the charges against him, trial by jury, the
right to counsel for his defense, the right to confront and
cross-examine witnesses, the right to call witnesses in his own
behalf, and the right not to be a witness against himself. All of
these rights are designed to shield the defendant against state
power. None is designed to make convictions easier, and, taken
together, they clearly indicate that, in our system, the entire
burden of proving criminal activity rests on the State. The
defendant, under our Constitution, need not do anything at all to
defend himself, and certainly he cannot be required to help convict
himself. Rather, he has an absolute, unqualified right to compel
the State to investigate its own case, find its own witnesses,
prove its own facts, and convince the jury through its own
resources. Throughout the process, the defendant has a fundamental
right to remain silent, in effect challenging the State at every
point to: "Prove it!"
The Bill of Rights thus sets out the type of constitutionally
required system that the State must follow in order to convict
individuals of crime. That system requires that the State itself
must bear the entire burden without any assistance from the
defendant. This requirement is clearly indicated in the Fifth
Amendment itself, but it is equally apparent when all the specific
provisions of the Bill of Rights relating to criminal prosecutions
are considered together. And when a question concerning the
constitutionality of some aspect of criminal procedure arises, this
Court must consider all those provisions and interpret them
together. The Fifth Amendment prohibition against compelling a
defendant
Page 399 U. S. 113
to be a witness against himself is not an isolated, distinct
provision. It is part of a system of constitutionally required
procedures, and its true meaning can be seen only in light of all
those provisions. "Strict construction" of the words of the
Constitution does not mean that the Court can look only to one
phrase, clause, or sentence in the Constitution and expect to find
the right answer. Each provision has clear and definite meaning,
and various provisions, considered together, may have an equally
clear and definite meaning. It is only through sensitive attention
to the specific words, the context in which they are used, and the
history surrounding the adoption of those provisions that the true
meaning of the Constitution can be discerned.
This constitutional right to remain absolutely silent cannot be
avoided by superficially attractive analogies to any so-called
"compulsion" inherent in the trial itself that may lead a defendant
to put on evidence in his own defense. Obviously the Constitution
contemplates that a defendant can be "compelled" to stand trial,
and obviously there will be times when the trial process itself
will require the defendant to do something in order to try to avoid
a conviction. But nothing in the Constitution permits the State to
add to the natural consequences of a trial and compel the defendant
in advance of trial to participate in any way in the State's
attempt to condemn him.
A criminal trial is, in part, a search for truth. But it is also
a system designed to protect "freedom" by insuring that no one is
criminally punished unless the State has first succeeded in the
admittedly difficult task of convincing a jury that the defendant
is guilty. That task is made more difficult by the Bill of Rights,
and the Fifth Amendment may be one of the most difficult of the
barriers to surmount. The Framers decided that the benefits to be
derived from the kind of trial required
Page 399 U. S. 114
by the Bill of Rights were well worth any loss in "efficiency"
that resulted. Their decision constitutes the final word on the
subject, absent some constitutional amendment. That decision should
not be set aside as the Court does today.
II
On the surface, this case involves only a "notice of alibi"
provision, but, in effect, the decision opens the way for a
profound change in one of the most important traditional safeguards
of a criminal defendant. The rationale of today's decision is in no
way limited to alibi defenses, or any other type or classification
of evidence. The theory advanced goes at least so far as to permit
the State to obtain, under threat of sanction, complete disclosure
by the defendant in advance of trial of all evidence, testimony,
and tactics he plans to use at that trial. In each case, the
justification will be that the rule affects only the "timing" of
the disclosure, and not the substantive decision itself. This
inevitability is clearly revealed by the citation to
Jones v.
Superior Court, 58 Cal. 2d 56,
372 P.2d 919 (1962),
ante at
399 U. S. 83 n.
13. In that case, the theory of which the Court today adopts in its
entirety, a defendant in a rape case disclosed that he would rely
in part on a defense of impotency. The prosecutor successfully
obtained an order compelling the defendant to reveal the names and
addresses of any doctors he consulted and the medical reports of
any examinations relating to the claimed incapacity. That order was
upheld by the highest court in California. There was no "rule" or
statute to support such a decision, only the California Supreme
Court's sense of fairness, justice, and judicial efficiency. The
majority there found no barrier to the judicial creation of
pretrial discovery by the State against the defendant, least of all
a barrier raised by any constitutional prohibition on compelling
the defendant to be a witness against himself.
Page 399 U. S. 115
The dangerous implications of the
Jones rationale
adopted today are not, however, limited to the disclosure of
evidence that the defendant has already decided he will use at
trial. In
State v. Grove, 65 Wash.
2d 525,
398 P.2d
170 (1965), the Washington Supreme Court, relying on
Jones, held that a defendant in a murder trial could be
compelled to produce a letter he had written his wife about the
alleged crime, even though he had no thought at all of using that
evidence in his own behalf. These cases are sufficient evidence of
the inch-by-inch, case-by-case process by which the rationale of
today's decision can be used to transform radically our system of
criminal justice into a process requiring the defendant to assist
the State in convicting him, or be punished for failing to do
so.
There is a hint in the State's brief in this case -- as well as,
I fear, in the Court's opinion -- of the ever-recurring suggestion
that the test of constitutionality is the test of "fairness,"
"decency," or, in short, the Court's own views of what is "best."
Occasionally this test emerges in disguise as an intellectually
satisfying "distinction" or "analogy" designed to cover up a
decision based on the wisdom of a proposed procedure, rather than
its conformity with the commands of the Constitution. Such a
course, in my view, is involved in this case. This decision is one
more step away from the written Constitution and a radical
departure from the system of criminal justice that has prevailed in
this country. Compelling a defendant in a criminal case to be a
witness against himself in any way, including the use of the system
of pretrial discovery approved today, was unknown in English law,
except for the unlamented proceedings in the Star Chamber court --
the type of proceedings the Fifth Amendment was designed to
prevent. For practically the first 150 years of this Nation's
history, no State considered adopting such procedures
compelling
Page 399 U. S. 116
a criminal defendant to help convict himself, although history
does not indicate that our ancestors were any less intelligent or
solicitous of having a fair and efficient system of criminal
justice than we are. History does indicate that persons well
familiar with the dangers of arbitrary and oppressive use of the
criminal process were determined to limit such dangers for the
protection of each and every inhabitant of this country. They were
well aware that any individual might someday be subjected to
criminal prosecution, and it was in order to protect the freedom of
each of us that they restricted the Government's ability to punish
or imprison any of us. Yet, in spite of the history of oppression
that produced the Bill of Rights and the strong reluctance of our
governments to compel a criminal defendant to assist in his own
conviction, the Court today reaches out to embrace and sanctify at
the first opportunity a most dangerous departure from the
Constitution and the traditional safeguards afforded persons
accused of crime. I cannot accept such a result, and must express
my most emphatic disagreement and dissent.
[
Footnote 2/1]
See cases cited in
In re Winship, 397 U.
S. 358,
397 U. S. 382
n. 11 (1970) (BLACK, J., dissenting).
[
Footnote 2/2]
As I have frequently stated, in my opinion, the Fourteenth
Amendment was in part adopted in order to make the provisions of
the Bill of Rights fully applicable to the States.
See, e.g.,
Adamson v. California, 332 U. S. 46,
332 U. S. 68
(1947) (dissenting opinion). This Court has now held almost all
these provisions do apply to the States as well as the Federal
Government, including the Fifth Amendment provision involved in
this case.
See Malloy v. Hogan, 378 U. S.
1 (1964); cases cited in
In re Winship,
397 U. S. 358,
397 U. S. 382
n. 11 (1970) (BLACK, J., dissenting). When this Court is called
upon to consider the meaning of a particular provision of the Bill
of Rights -- whether, in a case arising from a state court or a
federal one -- it is necessary to look to the specific language of
the provision and the intent of the Framers when the Bill of Rights
itself was adopted. This approach is necessary not because the
Framers intended the Bill of Rights to apply to the States when it
was proposed in 1789, but because the application of those
provisions to the States by the Fourteenth Amendment requires that
the original intent be the governing consideration in state, as
well as federal, cases.
MR. JUSTICE MARSHALL, dissenting in part.
I join Part I of the Court's opinion. However, since I believe
that the Fourteenth Amendment guaranteed Williams a jury of 12 to
pass upon the question of his guilt or innocence before he could be
sent to prison for the rest of his life, I dissent from the
affirmance of his conviction.
I adhere to the holding of
Duncan v. Louisiana,
391 U. S. 145,
391 U. S. 149
(1968), that,
"[b]ecause . . . trial by jury in criminal cases is fundamental
to the American scheme of justice . . . , 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."
And I agree with
Page 399 U. S. 117
the Court that the same "trial by jury" is guaranteed to state
defendants by the Fourteenth Amendment as to federal defendants by
the Sixth.
"Once it is decided that a particular Bill of Rights guarantee
is 'fundamental to the American scheme of justice' . . . , the same
constitutional standards apply against both the State and Federal
Governments."
Benton v. Maryland, 395 U. S. 784,
395 U. S. 795
(1969).
At the same time, I adhere to the decision of the Court in
Thompson v. Utah, 170 U. S. 343,
170 U. S. 349
(1898), that the jury guaranteed by the Sixth Amendment consists
"of twelve persons, neither more nor less." As I see it, the Court
has not made out a convincing case that the Sixth Amendment should
be read differently than it was in
Thompson, even if the
matter were now before us
de novo -- much less that an
unbroken line of precedent going back over 70 years should be
overruled. The arguments made by MR. JUSTICE HARLAN in
399 U. S. and still states sound doctrine. I am
equally convinced that the requirement of 12 should be applied to
the States.
MR. JUSTICE HARLAN, dissenting in No. 188,
ante, p.
399 U. S. 66, and
concurring in the result in No. 927.
In
Duncan v. Louisiana, 391 U.
S. 145 (1968), the Court held, over my dissent, joined
by MR. JUSTICE STEWART, that a state criminal defendant is entitled
to a jury trial in any case which, if brought in a federal court,
would require a jury under the Sixth Amendment. Today the Court
concludes, in No. 188,
Baldwin v. New York, that New York
cannot constitutionally provide that misdemeanors carrying
sentences up to one year shall be tried in New York City without a
jury. [
Footnote 3/1] At
Page 399 U. S. 118
the same time, the Court holds in No. 927,
Williams v.
Florida, that Florida's six-member jury statute satisfies the
Sixth Amendment as carried to the States by the
Duncan
holding. [
Footnote 3/2] The
necessary consequence of this decision is that 12-member juries are
not constitutionally required in
federal criminal trials
either.
The historical argument by which the Court undertakes to justify
its view that the Sixth Amendment does not require 12-member juries
is, in my opinion, much too thin to mask the true thrust of this
decision. The decision evinces, I think, a recognition that the
"incorporationist" view of the Due Process Clause of the Fourteenth
Amendment, which underlay
Duncan and is now carried
forward into
Baldwin, must be tempered to allow the States
more elbow room in ordering their own criminal systems. With that
much I agree. But to accomplish this by diluting constitutional
protections within the federal system itself is something to which
I cannot possibly subscribe. Tempering the rigor of
Duncan
should be done forthrightly, by facing up to the fact that, at
least in this area the "incorporation" doctrine does not fit well
with our federal structure, and, by the same token, that
Duncan was wrongly decided.
I would sustain both the Florida and New York statutes on the
constitutional premises discussed in my dissenting opinion in
Duncan, 391 U.S. at
391 U. S. 161
et seq. In taking that course in
Baldwin, I
cannot, in a matter that goes to the very pulse of sound
constitutional adjudication, consider myself constricted by
stare decisis. [
Footnote
3/3]
Page 399 U. S. 119
Accordingly, I dissent in No. 188 and, as to the jury issue,
concur in the result in No. 927. Given
Malloy v. Hogan,
378 U. S. 1 (1964),
I join that part of the Court's opinion in No. 927 relating to the
Florida "alibi" procedure.
I
As a predicate for my conclusions, it is useful to map the
circuitous route that has been taken in order to reach the results.
In both cases, more patently in
Williams than in
Baldwin, the history of jury trial practice in both the
state and federal systems has been indiscriminately jumbled
together, as opposed to the point of departure having been taken
from the language in which the federal guarantee is expressed and
the historical precedent that brings it to life. The consequence of
this inverted approach to interpreting the Sixth Amendment results,
fortuitously, [
Footnote 3/4] in
Baldwin in a Sixth Amendment rule that would be reached
under the correct approach, given the "incorporationist" philosophy
of
Duncan, but, unhappily, imposes it on the one
jurisdiction in the country that has seen fit to do otherwise, and,
in
Williams, results in a Sixth Amendment rule that could
only be reached by standing the constitutional dialectic on its
head.
A
To the extent that the prevailing opinion premises its
conclusions in the
Baldwin case on federal precedent and
the common law practice, I agree that the federal right to
Page 399 U. S. 120
jury trial attaches where an offense is punishable by as much as
six months' imprisonment. I think this follows both from the
breadth of the language of the Sixth Amendment, which provides for
a jury in "all criminal prosecutions," and the evidence of
historical practice. In this regard, I believe that contemporary
usage in the States is of little, if any, significance. [
Footnote 3/5] For if exceptions are to be
created out of the all-embracing language of the Sixth Amendment,
they should only be those that are anchored in history.
It is to the distinction between "petty" and "serious" offenses,
rooted in the common law, that this Court has looked to ascertain
the metes and bounds of the federal right guaranteed by the Sixth
Amendment.
See District of Columbia v. Clawans,
300 U. S. 617
(1937);
Schick v. United States, 195 U. S.
65 (1904);
Callan v. Wilson, 127 U.
S. 540,
127 U. S. 552
(1888). Since the conventional, if not immutable, practice at
common law appears to have been to provide juries for offenses
punishable by fines of more than $100 or sentences to hard labor of
more than six months in prison,
see Frankfurter &
Corcoran, Petty Federal Offenses and the Constitutional Guaranty of
Trial by Jury, 39 Harv.L.Rev. 917 (1926), [
Footnote 3/6] I think it
Page 399 U. S. 121
appropriate to draw the line at six months in federal case,
[
Footnote 3/7] although, for
reasons to follow, I would not encumber the States by this
requirement. [
Footnote 3/8]
Page 399 U. S. 122
B
In
Williams, the Court strangely does an about-face.
Rather than bind the States by the hitherto undeviating and
unquestioned federal practice of 12-member juries, the Court holds,
based on a poll of state practice, that a six-man jury satisfies
the guarantee of a trial by jury in a federal criminal system, and
consequently carries over to the States. This is a constitutional
renvoi. With all respect, I consider that, before today,
it would have been unthinkable to suggest that the Sixth
Amendment's right to a trial by jury is satisfied by a jury of six,
or less, as is left open by the Court's opinion in
Williams, or by less than a unanimous verdict, a question
also reserved in today's decision.
1. The Court, in stripping off the livery of history from the
jury trial, relies on a two-step analysis. With arduous effort, the
Court first liberates itself from the "intent of the Framers"
and
"the easy assumption in our past decisions that, if a given
feature existed in a jury at common law in 1789, then it was
necessarily preserved in the Constitution."
Ante at
399 U. S. 92-93.
Unburdened by
Page 399 U. S. 123
the yoke of history, the Court then concludes that the policy
protected by the jury guarantee does not require its perpetuation
in common law form.
Neither argument is, in my view, an acceptable reason for
disregarding history and numerous pronouncements of this Court that
have made "the easy assumption" that the Sixth Amendment's jury was
one composed of 12 individuals. Even assuming ambiguity as to the
intent of the Framers, [
Footnote
3/9] it is common sense and not merely the
Page 399 U. S. 124
blessing of the Framers that explains this Court's frequent
reminders that:
"The interpretation of the Constitution of the United States is
necessarily influenced by the fact that its provisions are framed
in the language of the English common law, and are to be read in
the light of its history."
Smith v. Alabama, 124 U. S. 465,
124 U. S. 478
(1888). This proposition was again put forward by Mr. Justice Gray,
speaking for the Court in
United States v. Wong Kim Ark,
169 U. S. 649
(1898), where the Court was called upon to define the term
"citizen" as used in the Constitution.
"The Constitution nowhere defines the meaning of these words
[the Citizenship Clause]. . . . In this, as in other respects, it
must be interpreted in the light of the common law, the principles
and history of which were familiarly known to the framers of the
Constitution."
169 U.S. at
169 U. S. 654.
History continues to be a wellspring of constitutional
interpretation. Indeed, history was even invoked by the Court in
such decisions as
Townsend v. Sain, 372 U.
S. 293 (1963), and
Fay v. Noia, 372 U.
S. 391 (1963), where it purported to interpret the
constitutional provision for habeas corpus according to the
"historic conception of the writ", and took note that the guarantee
was one rooted in common law, and should be so interpreted.
[
Footnote 3/10]
Cf. United
States v. Brown, 381 U. S. 437,
381 U. S. 458
(1965). In accordance with these precepts, sound constitutional
interpretation requires, in my view, fixing the federal jury as it
was known to the common law.
It is, of course, true that history should not imprison those
broad guarantees of the Constitution whose proper scope is to be
determined in a given instance by a blend
Page 399 U. S. 125
of historical understanding and the adaptation of purpose to
contemporary circumstances.
Cf. Katz v. United States,
389 U. S. 347
(1967);
Estes v. Texas, 381 U. S. 532,
381 U. S.
595-596 (1965) (concurring opinion);
Olmstead v.
United States, 277 U. S. 438,
277 U. S. 471
(1928) (Brandeis, J., dissenting);
United States v.
Lovett, 328 U. S. 303,
328 U. S. 318
(1946) (Frankfurter, J., concurring). [
Footnote 3/11] B. Cardozo, The Nature of the Judicial
Process (1921). This is not, however, a circumstance of giving a
term "a meaning not necessarily envisioned . . . so as to adapt
[it] to circumstances . . . uncontemplated."
See my
opinion concurring in the result in
Welsh v. United
States, 398 U. S. 333,
398 U. S. 344
(1970). The right to a trial by jury, however, has no enduring
meaning apart from historical form.
The second aspect of the Court's argument is that the number
"12" is a historical accident -- even though one that has recurred
without interruption since the 14th century (
see ante at
399 U. S. 89) --
and is in no way essential to the "purpose of the jury trial,"
which is to "safeguard against the corrupt or overzealous
prosecutor and against the compliant, biased, or eccentric judge."
Ante at
399 U. S. 100.
Thus, history, the Court suggests, is no guide to the meaning of
those rights whose form bears no relation to the policy they
reflect. In this context, the 12-member feature of the classical
common law jury is apparently regarded by the Court as mere
adornment.
This second justification for cutting the umbilical cord that
ties the form of the jury to the past is itself, as
Page 399 U. S. 126
I see it, the most compelling reason for maintaining that
guarantee in its common law form. For if 12 jurors are not
essential, why are six? What if New York, now compelled by virtue
of
Baldwin to provide juries for the trial of
misdemeanors, concludes that three jurors are adequate
"interposition between the accused and his accuser of the common
sense judgment of a group of laymen," and constitute adequate
"community participation and [provide] shared responsibility which
results from that group's determination of guilt or innocence"? The
Court's elaboration of what is required provides no standard, and
vexes the meaning of the right to a jury trial in federal courts,
as well as state courts, by uncertainty. Can it be doubted that a
unanimous jury of 12 provides a greater safeguard than a majority
vote of six? The uncertainty that will henceforth plague the
meaning of trial by jury is itself a further sufficient reason for
not hoisting the anchor to history.
2. The circumvention of history is compounded by the cavalier
disregard of numerous pronouncements of this Court that reflect the
understanding of the jury as one of 12 members and have fixed
expectations accordingly. Thus, in
Thompson v. Utah, a
unanimous Court answered in the affirmative the question whether
the Sixth Amendment jury "is a jury constituted, as it was at
common law, of twelve persons, neither more nor less."
170 U. S. 170 U.S.
343,
170 U. S. 349
(1898), [
Footnote 3/12] and it
appears that, before
Duncan, no Justice of this Court has
seen fit to question this holding, one that has often been
reiterated.
See Patton v. United States, 281 U.
S. 276,
281 U. S. 288
(1930), where
Page 399 U. S. 127
the Court reaffirmed earlier pronouncements and stated that the
Sixth Amendment jury is characterized by three essential
features:
"(1) that the jury should consist of twelve men, neither more
nor less; (2) that the trial should be in the presence and under
the superintendence of a judge having power to instruct them as to
the law and advise them in respect of the facts; and (3) that the
verdict should be unanimous."
See also Maxwell v. Dow, 176 U.
S. 581,
176 U. S. 586
(1900);
Rassmussen v. United States, 197 U.
S. 516,
197 U. S. 527
(1905);
Andres v. United States, 333 U.
S. 740,
333 U. S. 748
(1948) (unanimity). [
Footnote
3/13] As Mr. Justice Frankfurter stated in
Gore v. United
States, 357 U. S. 386,
357 U. S. 392
(1958), in applying a constitutional provision "rooted in history .
. . a long course of adjudication in this Court carries impressive
authority."
The principle of
stare decisis is multifaceted. It is a
solid foundation for our legal system; yet care must be taken not
to use it to create an unmovable structure. It provides the
stability and predictability required for the ordering of human
affairs over the course of time, and a basis of "public faith in
the judiciary as a source of impersonal and reasoned judgments."
Moragne v. States Marine Lines, 398 U.
S. 375,
398 U. S.
403
Page 399 U. S. 128
(1970).
See also Helvering v. Hallock, 309 U.
S. 106 (1940);
Boys Markets v. Retail Clerks,
398 U. S. 235
(1970);
Hertz v. Woodman, 218 U.
S. 205,
218 U. S. 212
(1910);
Burnet v. Coronado Oil & Gas Co., 285 U.
S. 393,
285 U. S.
405-406 (1932) (Brandeis, J., dissenting). Woodenly
applied, however, it builds a stockade of precedent that confines
the law by rules, ill-conceived when promulgated, or if sound in
origin, unadaptable to present circumstances. No precedent is
sacrosanct, and one should not hesitate to vote to overturn this
Court's previous holdings -- old or recent -- or reconsider settled
dicta where the principles announced prove either practically
(
e.g., Moragne v. States Marine Lines, supra; Boys Markets v.
Retail Clerks, supra), or jurisprudentially (
e.g., Desist
v. United States, 394 U. S. 244,
394 U. S. 256
(1969) (dissenting opinion)) unworkable, or no longer suited to
contemporary life (
e.g., Katz v. United States,
389 U. S. 347,
389 U. S. 360
(1967) (concurring opinion)).
See also Welsh v. United
States, 398 U. S. 333
(1970);
Chimel v. California, 395 U.
S. 752 (1969);
Marchetti v. United States,
390 U. S. 39
(1968);
Estes v. Texas, 381 U.S. at
381 U. S.
595-596 (concurring opinion);
Warden v. Hayden,
387 U. S. 294
(1967);
Swift & Co. v. Wickham, 382 U.
S. 111 (1965);
James v. United States,
366 U. S. 213,
366 U. S. 241
(1961) (separate opinion of HARLAN, J.). Indeed, it is these
considerations that move me to depart today from the framework of
Duncan. It is, in part, the disregard of
stare
decisis in circumstances where it should apply, to which the
Court is, of necessity, driven in
Williams by the
"incorporation" doctrine, that leads me to decline to follow
Duncan. Surely if the principle of
stare decisis
means anything in the law, it means that precedent should not be
jettisoned when the rule of yesterday remains viable, creates no
injustice, and can reasonably be said to be no less sound than the
rule sponsored by those who seek
Page 399 U. S. 129
change, let alone incapable of being demonstrated wrong. The
decision in
Williams, however, casts aside workability and
relevance and substitutes uncertainty. The only reason I can
discern for today's decision that discards numerous judicial
pronouncements and historical precedent that sound constitutional
interpretation would look to as controlling, is the Court's
disquietude with the tension between the jurisprudential
consequences wrought by "incorporation" in
Duncan and
Baldwin and the counter-pulls of the situation in
Williams which presents the prospect of invalidating the
common practice in the States of providing less than a 12-member
jury for the trial of misdemeanor cases.
II
These decisions demonstrate that the difference between a "due
process" approach, that considers each particular case on its own
bottom to see whether the right alleged is one "implicit in the
concept of ordered liberty,"
see Palko v. Connecticut,
302 U. S. 319,
302 U. S. 325
(1937), and "selective incorporation" is not an abstract one
whereby different verbal formulae achieve the same results. The
internal logic of the selective incorporation doctrine cannot be
respected if the Court is both committed to interpreting faithfully
the meaning of the federal Bill of Rights and recognizing the
governmental diversity that exists in this country. The "backlash"
in
Williams exposes the malaise, for there, the Court
dilutes a federal guarantee in order to reconcile the logic of
"incorporation," the "jot-for-jot and case-for-case" application of
the federal right to the States, with the reality of federalism.
Can one doubt that, had Congress tried to undermine the common law
right to trial by jury before
Duncan came on the books,
the history today recited would have barred such action? Can we
Page 399 U. S. 130
expect repeat performances when this Court is called upon to
give definition and meaning to other federal guarantees that have
been "incorporated"?
In
Ker v. California, 374 U. S. 23
(1963), I noted in an opinion concurring in the result that:
"The rule [of 'incorporation'] is unwise because the States,
with their differing law enforcement problems, should not be put in
a constitutional straitjacket. . . . And if the Court is prepared
to relax [federal] standards in order to avoid unduly fettering the
States, this would be in derogation of law enforcement standards in
the federal system. . . ."
Id. at
374 U. S. 45-46.
Only last Term, in
Chimel v. California, supra, I again
expressed my misgivings that "incorporation" would neutralize the
potency of guarantees in federal courts in order to accommodate the
diversity of our federal system. I reiterate what I said in dissent
in
Duncan, 391 U.S. at
391 U. S.
175-176:
"[N]either history nor sense supports using the Fourteenth
Amendment to put the States in a constitutional straitjacket with
respect to their own development in the administration of criminal
or civil law."
Since we now witness the first major attempt to wriggle free of
that "straitjacket," it is appropriate, I think, to step back and
view in perspective how far the incorporation doctrine has taken
us, and to put the spotlight on a constitutional revolution that
has inevitably become obscured by the process of case-by-case
adjudication.
A
The recent history of constitutional adjudication in state
criminal cases is the ascendancy of the doctrine of
ad hoc
("selective") incorporation, an approach that absorbs one-by-one
individual guarantees of the federal Bill of Rights into the Due
Process Clause of the Fourteenth Amendment, and holds them
applicable to the States with all the subtleties and refinements
born of history
Page 399 U. S. 131
and embodied in case experience developed in the context of
federal adjudication. Thus, with few exceptions, the Court has
"incorporated," each time over my protest, [
Footnote 3/14] almost all the criminal protections
found within the first eight Amendments to the Constitution, and
made them "jot-for-jot and case-for-case" applicable to the States.
The process began with
Mapp v. Ohio, 367 U.
S. 643 (1961), where the Court applied to the States the
so-called exclusionary rule, rendering inadmissible at trial
evidence seized in violation of the Fourth Amendment, and thereby
overruling
pro tanto Wolf v. Colorado, 338 U. S.
25 (1949).
See my dissenting opinion, 367 U.S.
at
367 U. S. 672.
The particular course embarked upon in
Mapp was blindly
followed to it end in
Ker v. California, 374 U. S.
23 (1963), where the Court made federal standards of
probable cause for search and seizure applicable to the States,
thereby overruling the remainder of
Wolf. See my
opinion concurring in the result, 374 U.S. at
374 U. S. 44.
Thereafter followed
Malloy v. Hogan, 378 U. S.
1 (1964), and
Griffin v. California,
380 U. S. 609
(1965), overruling
Twining v. New Jersey, 211 U. S.
78 (1908), and
Adamson v. California,
332 U. S. 46
(1947), and incorporating the
Page 399 U. S. 132
Fifth Amendment privilege against self-incrimination by holding
that "the same standards must determine whether an accused's
silence in either a federal or state proceeding is justified." 378
U.S. at
378 U. S. 11.
See my dissenting opinion in
Malloy, 378 U.S. at
378 U. S. 14, and
my concurring opinion in
Griffin, 380 U.S. at
380 U. S. 615.
The year of
Griffin also brought forth
Pointer v.
Texas, 380 U. S. 400
(1965), overruling
Snyder v. Massachusetts, 291 U. S.
97 (1934), and
Stein v. New York, 346 U.
S. 156,
346 U. S. 194
(1953), by holding that the Sixth Amendment's Confrontation Clause
applied equally to the States and Federal Government.
See
my opinion concurring in the result, 380 U.S. at
380 U. S. 408.
In 1967, incorporation swept in the "speedy trial" guarantee of the
Sixth Amendment.
Klopfer v. North Carolina, 386 U.
S. 213 (1967), and, in 1968,
Duncan v. Louisiana,
supra, rendered the Sixth Amendment jury trial a right secured
by the Fourteenth Amendment Due Process Clause. Only last Term, the
Court overruled
Palko v. Connecticut, supra, and held that
the "double jeopardy" protection of the Fifth Amendment was
incorporated into the Fourteenth, and hence also carried to the
States.
Benton v. Maryland, 395 U.
S. 784 (1969);
see my opinion concurring in the
result in
Klopfer, 386 U.S. at
386 U. S. 226;
my dissenting opinion in
Duncan, 391 U.S. at
391 U. S. 171;
my dissenting opinion in
Benton, 395 U.S. at
395 U. S. 801,
and my separate opinion in
North Carolina v. Pearce,
395 U. S. 711,
395 U. S. 744
(1969). [
Footnote 3/15] In
combination, these cases have, in effect, restructured the
Constitution in the field of state criminal law enforcement.
Page 399 U. S. 133
There is no need to travel again over terrain trod in earlier
opinions in which I have endeavored to lay bare the historical and
logical infirmities of this "incorporationist" approach. On that
score, I am content to rest on what I said in dissent in
Duncan, 391 U.S. at
391 U. S. 171.
I continue to consider the principles therein expressed as the
sound basis for approaching the adjudication of state cases of the
kind now before us. It is my firm conviction that "incorporation"
distorts the "essentially federal nature of our national
government,"
Atlantic Coast Line R. Co. v. Brotherhood of
Locomotive Engineers, 398 U. S. 281,
398 U. S. 285
(1970), one of whose basic virtues is to leave ample room for
governmental and social experimentation in a society as diverse as
ours, and which also reflects the view of the Framers that "the
security of liberty in America rested primarily upon the dispersion
of governmental power across a federal system," 391 U.S. at
391 U. S. 173.
The Fourteenth Amendment tempered this basic philosophy, but did
not unstitch the basic federalist pattern woven into our
constitutional fabric. The structure of our Government still
embodies a philosophy that presupposes the diversity that
engendered the federalist system.
That these doctrines are not only alive in rhetoric, but vital
in the world of practical affairs, is evidenced by contemporary
debate concerning the desirability of returning to "local"
government the administration of many programs and functions that
have in late years increasingly been centralized in the hands of
the National Government.
Page 399 U. S. 134
B
But the best evidence of the vitality of federalism is today's
decision in
Williams. The merits or demerits of the jury
system can, of course, be debated, and those States that have
diluted the common law requirements evince a conclusion that the
protection as known at common law is not necessary for a fair
trial, or is only such marginal assurance of a fair trial that the
inconvenience of assembling 12 individuals outweighs other gains in
the administration of justice achieved by using only six
individuals (or none at all, as was the case in New York City).
The prevailing opinion rejects in
Baldwin what would be
the consistent approach, requiring affirmance, simply because New
York City is the single jurisdiction in the Nation that sees fit to
try misdemeanants without a jury. In doing so it, in effect, holds
that "due process" is more offended by a trial without a jury for
an offense punishable by no more than a year in prison than it is
by a trial with a jury of six or less for offenses punishable by
life imprisonment. This ignores both the basic fairness of the New
York procedure and the peculiar local considerations that have led
the New York Legislature to conclude that trial by jury is more apt
to retard than further justice for criminal defendants in New York
City.
I, for one, find nothing unfair in the New York system which
provides the city defendant with an option, in lieu of a jury, of a
bench trial before three judges, N.Y.C.Crim.Ct.Act § 40. Moreover,
I think it counterproductive of fairness in criminal trials to hold
by way of incorporation that juries are required of States in these
days when congested calendars and attendant delays make what many
students of criminal justice
Page 399 U. S. 135
feel is one of the most significant contributions to injustice
and hardship to criminal defendants.
The statistics cited by the New York Court of Appeals and
amplified in the briefs are revealing and trenchant evidence of the
crisis that presently bedevils the administration of criminal
justice in New York City. New York's population density, a factor
which is, as noted by the President's Commission on Law Enforcement
and Administration of Justice, The Challenge of Crime in a Free
Society 5, 28 (1967), directly associated with crime, is twice that
of Buffalo, the second largest city in the State. Statistics
supplied by the Office of the State Administrator of the Judicial
Conference of the State of New York show that:
"From July, 1966, through December, 1968, the New York City
Criminal Court disposed of 321,368 nontraffic misdemeanor cases,
whereas, in the next largest city, Buffalo, the City Court disposed
of 8,189 nontraffic misdemeanor cases."
24 N.Y.2d 207, 218, 247 N.E.2d 260, 266 (1969). Thus, New York
City's misdemeanor caseload is 39 times that of Buffalo's, although
its population is only 17 times greater. After today, each of such
defendants in New York is entitled to a trial by some kind of a
jury. It can hardly be gainsaid that a jury requirement, with the
attendant time for selection of jurors and deliberation, even if
not invoked by all defendants, will increase delays in calendars,
depriving all defendants of a prompt trial. Impressive evidence
suggests that this requirement could conceivably increase delays in
New York City courts by as much as a factor of eight. A study done
of the administration of the Municipal Court in Minneapolis shows
that the requirement of a trial by jury in cases of intoxicated
driving increased court delays there from three to 24 months. Note,
Right to a Jury Trial for Persons Accused of an Ordinance
Violation, 47 Minn.L.Rev. 93 (1962).
Page 399 U. S. 136
Notwithstanding this critical situation, the Court concludes
that the Constitution requires a procedure fraught with delay even
though the American Bar Association Project on Standards for
Criminal Justice, Trial By Jury, has recognized the New York City
three-judge procedure as a possible compromise measure where jury
trials are not permitted or waived, and the further fact that
one-half the defendants tried for misdemeanors in New York City are
acquitted. [
Footnote 3/16]
III
Today's decisions demonstrate a constitutional schizophrenia
born of the need to cope with national diversity under the
constraints of the incorporation doctrine. In
Baldwin, the
prevailing opinion overrides the consideration of local needs, but,
in
Williams, the Court seeks out a minimum standard to
avoid causing disruption in numerous instances even though,
a
priori, incorporation would surely require a jury of 12. The
six-man, six-month rule of today's decisions simply reflects the
lowest common denominator in the scope and function of the right to
trial by jury in this country, but the circumstance that every
jurisdiction except New York City has a trial by a jury for
offenses punishable by six months in prison obscures the variety of
opinion that actually exists as to the proper place for the jury in
the administration of justice. More discriminating analysis
indicates that four States besides Florida authorize a jury of less
than 12 to try felony
Page 399 U. S. 137
offenses [
Footnote 3/17] and
three States authorize a nonunanimous verdict [
Footnote 3/18] in felony cases, and at least two
other States provide a trial without jury in the first instance for
certain offenses punishable by more than one year with a right to
de novo trial on appeal. [
Footnote 3/19] Eight States provide for juries ranging
from five to 12 to try crimes punishable by one year in prison, and
one State has provided for a verdict by nine in a jury of 12.
[
Footnote 3/20] Five States first
provide a bench trial for misdemeanors from which the defendant can
seek a trial
de novo by jury, [
Footnote 3/21] a procedure that this Court, in a
federal trial, has deemed incompatible with the Sixth Amendment for
putting the accused to the burden of two trials if he wishes a jury
verdict.
See Callan v. Wilson, 127 U.
S. 540 (1888). [
Footnote
3/22]
These varying provisions, reflecting as they do differing
estimates of the importance of the jury in securing a fair trial
and the feasibility of administering such a procedure given the
local circumstances, and the extensive study and debate about the
merits and demerits of the jury system, demonstrate that the
relevance and proper role of trial by jury in the administration of
criminal justice is yet far from sure.
Page 399 U. S. 138
"Incorporation" in
Duncan closed the door on debate,
[
Footnote 3/23] irrespective of
local circumstances, such as the backlogs in urban courts like
those of New York City, and has, without justification, clouded
with uncertainty the constitutionality of these differing state
modes of proceeding,
see 399 U.S.
78app2|>Appendix, pending approval by this Court; it now
promises to dilute in other ways the settled meaning of the federal
right to a trial by jury. Flexibility for experimentation in the
administration of justice should be returned to the States here and
in other areas that now have been swept into the rigid mold of
"incorporation." I agree with THE CHIEF JUSTICE That the
"near-uniform judgment of the Nation" is otherwise than the
judgment in some of its parts affords no basis . . . to read into
the Constitution something not found there.
Opinion of THE CHIEF JUSTICE in
Baldwin, ante at
399 U. S. 77. It
is time, I submit, for this Court to face up to the reality
implicit in today's holdings and reconsider the "incorporation"
doctrine before its leveling tendencies further retard development
in the field of criminal procedure by stifling flexibility in the
States and by discarding the possibility of federal leadership by
example.
|
399 U.S.
78app2|
APPENDIX TO OPINION OF HARLAN, J.
A. Nonunanimous Verdict For Felony-Type Offenses
1.
Louisiana: La.Crim.Proc., Code., Art. 782. (Verdict
of nine out of 12 in cases necessarily punished by hard labor.)
2.
Oregon: Constitution, Art. I, § 11; Ore.Rev.Stat. §§
136.330, 136.610 (1967) (five out of six sufficient for verdict in
a circuit court except in capital cases).
Page 399 U. S. 139
3.
Texas: Tex.Code Crim.Proc., Art. 36.29 (1966)
(permitting verdict by less than 12 when juror is
incapacitated).
B. Non-Jury Trial In Cases Punishable By More Than One Year's
Imprisonment With
De Novo Review
1.
Maryland: Constitution, Declaration of Rights, Arts.
5, 21; Md.Ann.Code, Art. 51, § 18, Art. 52, § 13 (1968), Art. 66-
1/2, §§ 48, 74, 75, 216, 325 (1967), § 327 (Supp. 1969); Md.Rules
Proc. 743, 758. (Trial by jury appears not to be afforded in motor
vehicle cases in the first instance, even though some motor vehicle
offenses carry a penalty of up to five years' imprisonment.)
2.
North Carolina: Constitution, Art. I, § 13;
State v. Sherron, 4 N.C.App. 386,
166
S.E.2d 836 (1969); N.C.Gen.Stat. §§ 7A-272(a), 7A-196(b), 14-3
(1969). (District courts have jurisdiction to try, without a jury,
all offenses below the grade of felony. Such offenses are
denominated petty misdemeanors, and the maximum sentence which may
be imposed is a fine or two years' imprisonment.)
3.
Pennsylvania: Constitution, Sched. Art. 5, § 16
(r)(iii) (offenses tried in the municipal division of the court of
common pleas carrying penalties up to two years' imprisonment and
indictable offenses under the motor vehicle laws for which
punishment does not exceed three years' imprisonment).
C. 6-Man Jury For Misdemeanors
1.
Alaska: Constitution, Art. I, § 11; Alaska Stat. §§
11.75.030 (1962), 22.15.060, 22.15.150 (1967). (Jury of six in
district magistrate's courts, which have jurisdiction of
misdemeanors, punishable by up to one year's imprisonment.)
2.
Georgia: Constitution, Art. I, § 2-105, Art. VI, §
2-5101; Ga.Code Ann. § 27-2506 (Supp. 1968); Ga.Laws
Page 399 U. S. 140
1890-1891, pp. 935, 939, 942. (In county criminal courts, which
have jurisdiction of misdemeanors -- cases in which the maximum
sentence imposable is a fine of up to $1000 or imprisonment for a
term of up to 12 months or both -- a defendant may demand a jury
trial. Depending upon the county, however, a jury ranges in size
from five to 12 persons. The Criminal Court of Atlanta, for
example, tries misdemeanors with juries of five. In Hall County,
the same crimes are tried by juries of 12.)
3.
Iowa: Constitution, Art. 1, § 9; Iowa Code §§
602.15, 602.25, 602.39, 687.7 (1966). (Jury of six in municipal
courts, which have jurisdiction of misdemeanors, carrying a maximum
fine of $500 or imprisonment for one year or both.)
4.
Kentucky: Constitution, §§ 7, 11, 248; Ky.Rev.Stat.
§§ 25.010, 25.014, 26.400, 29.015 (1963). (Misdemeanors, carrying a
maximum penalty of $500 or 12 months' imprisonment, are tried in
inferior courts by a jury of six. Circuit courts, where a 12-member
jury is used, have concurrent jurisdiction.)
5.
Mississippi: Constitution, Art. 3, § 31, Art. 6, §
171; Miss.Code Ann. §§ 1831, 1836, 1839 (1956). (Jurisdiction of
crimes punishable in the county jail may be tried in the justice of
the peace courts by a six-man jury. Many such crimes have a
one-year maximum term. Circuit courts have concurrent jurisdiction.
Such crimes include,
e.g., offenses involving corruption
in elections [Miss.Code Ann. §§ 2031, 2032], escape or aiding
escape of prisoners [§§ 2133, 2134, 2135, 2141], public officers'
interest in contracts [§ 2301, 2302], and trademarks [§§ 2390,
2391].)
6.
Oklahoma: Constitution, Art. 2, §§ 19, 20;
Okla.Stat.Ann., Tit. 11, §§ 958.3, 958.6 (Supp. 1969-1970), Tit.
21, § 10 (1958). (In misdemeanor cases -- those in which a sentence
of up to one year's imprisonment may
Page 399 U. S. 141
be imposed -- in courts of record, a defendant may demand a jury
of 12; nine members of the jury may render a verdict. For
violations of city ordinances tried in courts not of record, the
defendant may demand six jurors, five of whom may render a
verdict.)
7.
Oregon: Constitution, Art. I, § 11; Constitution of
1857, Art. VII, § 12; Ore.Rev.Stat. §§ 5.110 (1965), 46.040,
46.175, 46.180 (1967). (Jury of six in county courts, which have
jurisdiction of all crimes except those carrying the death penalty
or life imprisonment. Jury of six in district courts, which have
jurisdiction of all misdemeanors, punishable by one year's
imprisonment.)
8.
Virginia: Constitution, Art. I, § 8; Va.Code Ann. §§
16.1-123, 16.1-124, 16.1-126, 16.1-129, 16.1-132, 16.1136, 18.1-6
(1960), 18.1-9 (Supp. 1968), 19.1-206 (1960). (In courts not of
record, which have jurisdiction of misdemeanors, punishable by up
to one year's imprisonment, charges are tried without a jury. The
defendant may appeal as of right to the circuit court, where he
receives a trial
de novo. All trials in the circuit court
of offenses not felonious, whether in the first instance or on
appeal, are with five jurors.)
D. Non-Jury Trial For Misdemeanors Subject to
De Novo
Review
1.
Arkansas: Constitution, Art. 2, § 10; Ark.Stat.Ann.
§§ 22-709, 22-737, 26-301 (1962), 41-106, 43-1901, 43-1902, 1 115,
44-116, 44-509 (1964);
see generally Greenebaum, Arkansas'
Judiciary: Its History and Structure, 18 Ark.L.Rev. 152 (1964). (No
jury provided in municipal courts, which have jurisdiction of
misdemeanors carrying a maximum penalty of one year's imprisonment.
Upon conviction, the defendant may appeal to the circuit court,
where he is entitled to a trial
de novo before a common
law jury.)
Page 399 U. S. 142
2. Maine: Constitution, Art. I, §§ 6, 7; Me.Rev.Stat.Ann., Tit.
4, § 152 (Supp. 1970), Tit. 15, §§ 1, 451 (1965); Me.Rules
Crim.Proc. 23(b), 31(a);
Sprague v. Androscogin County,
104 Me. 352, 71 A. 1090 (1908); letter dated Dec. 17, 1968, from
Maine Attorney General's office to New York County District
Attorney's office. (Maine district courts try misdemeanors --
crimes punishable by a sentence of up to one year -- without a
jury. A defendant may appeal his conviction to the Superior Court,
however, where he is entitled to a common law jury.)
3.
New Hampshire: Constitution, pt. 1, Arts. 15, 16,
pt. 2, Art. 77; N.H.Rev.Stat.Ann. § 599:1 (Supp. 1969), §§
502-A:11, 502-A:12, 502:18 (1968);
State v. Despres, 107
N.H. 297, 220 A.2d 758 (1966). (District and municipal courts try,
without a jury, misdemeanors carrying a maximum term of
imprisonment of one year. The defendant in these courts has an
absolute right of appeal to the Superior Court, where he may demand
a jury of 12 in his trial
de novo.)
4.
Rhode Island: Constitution, Art. 1, §§ 10, 15;
R.I.Gen.Laws Ann. §§ 12-3-1, 12-17-1, 12-22-1, 12-22-9 (1956);
State v. Nolan, 15 R.I. 529, 10 A. 481 (1887). (There are
no juries in the district courts, which have jurisdiction of
misdemeanors -- crimes punishable by a fine of up to $500 or
imprisonment for up to one year or both. A defendant may appeal his
conviction to the Superior Court where he is entitled to a trial
de novo before a jury of 12.)
5.
Virginia: Constitution, Art. I, § 8; Va.Code Ann. §§
16.1-123, 16.1-124, 16.1-126, 16.1-129, 16.1-132, 16.1-136, 18.1-6
(1960), 18.1-9 (Supp. 1968). (In courts not of record, which have
jurisdiction of misdemeanors, punishable by up to one year's
imprisonment, charges are
Page 399 U. S. 143
tried without a jury. The defendant may appeal as of right to
the circuit court, where he receives a trial
de novo with
five jurors).
[
Footnote 3/1]
Outside of New York City, such cases are triable before
six-member juries.
[
Footnote 3/2]
Florida provides for a jury of 12 in capital cases and a
six-member jury "to try all other criminal cases." Fla.Stat. §
913.10(1) (1967).
[
Footnote 3/3]
As Mr. Justice Frankfurter said, speaking for the Court:
"
[S]tare decisis embodies an important social policy.
It represents an element of continuity in law, and is rooted in the
psychologic need to satisfy reasonable expectations. But
stare
decisis is a principle of policy, and not a mechanical formula
of adherence to the latest decision, however recent and
questionable, when such adherence involves collision with a prior
doctrine more embracing in its scope, intrinsically sounder, and
verified by experience.
Helvering v. Hallock, 309 U. S.
106,
309 U. S. 119 (1940)."
[
Footnote 3/4]
While all States except New York provide for jury trials for
crimes carrying sentences of six months or more, there is a good
deal of diversity as to the number of jurors and the stage at which
the right to jury trial attaches.
[
Footnote 3/5]
After concluding, relying on this Court's prior decisions, that
the jury trial required by the Sixth Amendment applies only to
"serious," as opposed to "petty," offenses, the opinion defines
those terms by perfunctory reference to history and a survey of
prevailing state rules.
See No. 188,
ante at
399 U. S.
71-72.
[
Footnote 3/6]
"The range and severity of punishment in summary trials has been
defined by limiting jurisdiction to the imposition of fines up to a
hundred pounds and sentences with hard labor up to six months."
Id. at 934. The practice in the Colonies was not
uniform but it is apparent that the line was drawn at six months in
most instances.
See District of Columbia v. Clawans,
supra, at
300 U. S. 626
nn. 2, 3.
[
Footnote 3/7]
While this Court has said that the most significant index to the
seriousness of an offense is the degree of penalty that attaches,
see Frank v. United States, 395 U.
S. 147,
395 U. S. 148
(1969);
District of Columbia v. Clawans, supra, it should
be recalled that this is not alone determinative, and that the
"apportioned punishment was both a consequence of the minor
quality of the misconduct and an index of the community's moral
judgment upon it."
Frankfurter & Corcoran,
supra, at 980. In
Clawans, the Court held the severity of punishment was not
determinative when the offense, by its own nature, is not
considered grave. 300 U.S. at
300 U. S. 625;
see also Callan v. Wilson, supra, at
127 U. S. 556;
Schick v. United States, supra, where this Court noted
that the "nature" of the offense and the severity of punishment are
two distinct considerations.
Cf. the House debate in 1930
over a bill to provide for a trial before federal magistrates for
crimes of a petty nature, 72 Cong.Rec. 9991-9994;
see also
H.R.Rep. No. 1699, 71st Cong., 2d Sess. (1930) (minority views);
Comments, American Bar Association Project on Standards for
Criminal Justice, Trial by Jury 21 (Approved Draft 1968); Comment,
The Petty Offense Category and Trial by Jury, 40 Yale L.J. 1303
(1931). I would reserve the question as to whether a jury would be
required in a federal case for a particular offense not punishable
by more than six months in prison.
[
Footnote 3/8]
Nor do I think it offends the Equal Protection Clause for New
York not to provide juries to hear offenses punishable by six
months in New York City, but to have such a provision for trials
elsewhere in the State. In
Salsbury v. Maryland,
346 U. S. 545
(1954), and
Missouri v. Lewis, 101 U. S.
22 (1880), this Court upheld the right of a State to
adapt procedures to the differing requirements of territorial
subdivisions. In
Salsbury, the Court quoted and reaffirmed
the principles set forth in
Missouri:
"'[T]here is nothing in the Constitution to prevent any State
from adopting any system of laws or judicature it sees fit for all
or any part of its territory. If the State of New York, for
example, should see fit to adopt the civil law and its method of
procedure for New York City and the surrounding counties, and the
common law and its method of procedure for the rest of the State,
there is nothing in the Constitution of the United States to
prevent its doing so.'"
346 U.S. at
346 U. S.
551.
The Court in
Missouri v. Lewis also stated:
"Where part of a State is thickly settled, and another part has
but few inhabitants, it may be desirable to have different systems
of judicature for the two portions, -- trial by jury in one, for
example, and not in the other. Large cities may require a
multiplication of courts and a peculiar arrangement of
jurisdictions. It would be an unfortunate restriction of the powers
of the State government if it could not, in its discretion, provide
for these various exigencies."
101 U.S. at
101 U. S. 32.
See also Ohio v. Akron Park District, 281 U. S.
74,
281 U. S. 81
(1930);
Ocampo v. United States, 234 U. S.
91,
234 U. S. 98-99
(1914).
The disproportionate number of misdemeanor cases that now clog
New York City courts,
see 399 U.
S. infra creates a difference of a magnitude that
more than justifies the differences in treatment between city and
non-city defendants.
[
Footnote 3/9]
The Court's conclusions from the historical materials, by its
own admission, can hardly be characterized as solid. The entire
argument seems to flow from the fact that the Senate Committee
substituted the present language of the Sixth Amendment for the
more specific House version that incorporated the unanimity
requirement and expressly tied the jury to "other accustomed
requisites." But the meaning of this change is wholly speculative,
for, apart from the "vicinage" requirement, there is no concrete
evidence cited by the Court to show that the Senate opposed the
more likely features of the Madison version adopted by the House.
In the context of an amendment notable for its sparseness of
language, a more likely explanation of the Senate's action is that
it was streamlining the Madison version on the assumption that the
most prominent features of the jury would be preserved as a matter
of course. This interpretation of the events is supported by the
fact that the only specifically objectionable feature of the common
law jury -- the vicinage requirement -- was preempted by language
providing for a trial by a jury of the district, thus leaving the
remaining attributes undefined in face of the distinct expectation
that those charged with interpretation would look to the common
law. Nor is this explanation rendered less forceful by the fact,
noted by the Court, that "reception" of the common law jury did not
unfailingly mean 12 in early colonial times. As the Court itself
acknowledges, the States that had constitutions in 1787 provided
for juries of 12. The Court's other arguments -- (1) that simple
reference to a jury in Article III was not necessarily thought to
mean to the Framers a common law jury in light of the need felt to
add the Amendments and Madison's more elaborate proposal for the
Sixth Amendment; and, (2) that the allusion to "common law" in the
Seventh Amendment suggests that it is not the backdrop for the
Sixth Amendment jury -- are too remote to require rejoinder.
[
Footnote 3/10]
While I disagreed with the Court on these occasions, my
differences with the majority went to the conclusions that could
properly be drawn from the common law history of the writ and the
precedents in this Court, not to the jurisprudential approach that
took history as a point of departure.
[
Footnote 3/11]
"Broadly speaking, two types of constitutional claims come
before this Court. Most constitutional issues derive from the broad
standards of fairness written into the Constitution. . . . Such
questions, by their very nature, allow a relatively wide play for
individual legal judgment. The other class gives no such scope. For
this second class of constitutional issues derives from very
specific provisions of the Constitution. . . . They were defined by
history. Their meaning was so settled by history that definition
was superfluous. . . ."
328 U.S. at
328 U. S.
321.
[
Footnote 3/12]
The significance of this pronouncement cannot be minimized. The
holding that retrial by a jury of eight was an
ex post
facto law is perforce built upon the conclusion that the jury
of 12 was a right of substance. If the right were merely a
procedure mandated by statute, it would not have required the
ex post facto holding.
[
Footnote 3/13]
The Federal Rules of Criminal Procedure provide for a jury of
12, Fed.Rule Crim.Proc. 23, and, as recently as last year, lower
federal courts have assumed this Court's commitment to the
unanimous verdict of 12.
United States v. Fioravanti, 412
F.2d 407, 418 (C.A.3d Cir.1969);
Williams v. United
States, 332 F.2d 36 (C.A. 7th Cir.1964);
see also, e.g.,
United States v. Virginia Erection Corp., 335 F.2d 868, 870
(C.A.4th Cir.1964);
United States v. Goldberg, 330 F.2d
30, 42 (C.A.3d Cir.1964);
Rogers v. United States, 319
F.2d 5 (C.A. 7th Cir.1963);
Fournier v. Gonzalez, 269 F.2d
26 (C.A. 1st Cir.1959);
Billeci v. United States, 87
U.S.App.D.C. 274, 184 F.2d 394 (1950);
Horne v. United
States, 264 F.2d 40 (C.A. 5th Cir.1959);
Hibdon v. United
States, 204 F.2d 834 (C.A. 6th Cir.1953).
[
Footnote 3/14]
In addition to separate opinions noted in the text,
see,
e.g., Poe v. Ullman, 367 U. S. 497,
367 U. S. 522,
at
367 U. S.
539-545 (1961) (dissenting opinion);
Griswold v.
Connecticut, 381 U. S. 479,
381 U. S. 499
(1965) (concurring in the judgment);
Lanza v. New York,
370 U. S. 139,
370 U. S. 147
(1962) (concurring opinion);
Gideon v. Wainwright,
372 U. S. 335,
372 U. S. 349
(1963) (concurring opinion);
Murphy v. Waterfront Comm'n,
378 U. S. 52,
378 U. S. 80
(1964) (concurring in the judgment);
Barber v. Page,
390 U. S. 719,
390 U. S. 726
(1968) (concurring opinion);
Berger v. New York,
388 U. S. 41,
388 U. S. 89
(1967) (dissenting opinion);
Chimel v. California, supra; Ashe
v. Swenson, 397 U. S. 436,
397 U. S. 448
(1970) (concurring opinion);
Coleman v. Alabama, ante, p.
399 U. S. 19
(1970) (separate opinion);
Bloom v. Illinois, 391 U.
S. 194,
391 U. S. 215
(1968) (dissenting opinion);
Washington v. Texas,
388 U. S. 14,
388 U. S. 23
(1967) (concurring in the result);
Dickey v. Florida,
398 U. S. 30,
398 U. S. 38
(1970) (concurring opinion).
[
Footnote 3/15]
The right to counsel appears not to have been explicitly
"incorporated," although
Gilbert v. California,
388 U. S. 263
(1967), implicitly does so.
Gideon v. Wainwright,
372 U. S. 335
(1963), purported to be a determination that "fundamental fairness"
requires the State to afford trial counsel to the indigent accused.
Id. at
372 U. S. 343.
Although I have disagreed with particular holdings like
Gilbert
v. California, supra, where the Court held that the States
must arrange presence of counsel at lineups,
see MR.
JUSTICE WHITE's separate opinion in
United States v. Wade,
388 U. S. 218,
388 U. S. 250
(1967), which I joined, this is because those decisions incorrectly
require, in my view, counsel in circumstances where his presence is
not necessary under either the Sixth Amendment or the Due Process
Clause.
See my separate opinion in
Coleman v.
Alabama, decided today,
ante, p.
399 U. S. 19.
[
Footnote 3/16]
The President of the Legal Aid Society in New York City recently
reported that 49% of the society's clients who were tried in the
New York City Criminal Court in 1967 (without a jury) were
acquitted; there were 3,023 convictions after trial, 2,678
acquittal after trial. Speech at annual Judicial Conference of the
Second Judicial Circuit of the United States, Lake Placid, N.Y.
Sept. 14, 1968, reprinted in N.Y.L.J. September 25, 1968, p. 4.
[
Footnote 3/17]
See the Court's opinion,
ante at
399 U. S. 99 n.
45.
[
Footnote 3/18]
See 399 U.S.
78app2|>Appendix to this opinion.
[
Footnote 3/19]
See ibid.
[
Footnote 3/20]
See ibid.
[
Footnote 3/21]
See ibid.
[
Footnote 3/22]
"Except in that class or grade of offences called petty
offences, which, according to the common law, may be proceeded
against summarily . . . , the guarantee of an impartial jury to the
accused in a criminal prosecution, conducted . . . by . . . 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. . . . To accord to the accused a right to
be tried by a jury, in an appellate court, after he has been once
fully tried otherwise than by a jury, in the court of original
jurisdiction . . . , does not satisfy the requirements of the
Constitution."
127 U.S. at
127 U. S. 557.
[
Footnote 3/23]
See, e.g., H. Kalven & H. Zeisel, The American Jury
5 (1966); Comment, Should Jury Verdicts Be Unanimous in Criminal
Cases?, 47 Ore.L.Rev. 417 (1968).
MR. JUSTICE STEWART, dissenting in No. 188,
ante, p.
66, and concurring in the result in No. 927.
I substantially agree with the separate opinion MR. JUSTICE
HARLAN has filed in these cases -- an opinion that fully
demonstrates some of the basic errors in a mechanistic
"incorporation" approach to the Fourteenth Amendment. I cannot
subscribe to his opinion in its entirety, however, if only for the
reason that it relies in part upon certain dissenting and
concurring opinions in previous cases in which I did not join.
The "incorporation" theory postulates the Bill of Rights as the
substantive metes and bounds of the Fourteenth Amendment. I think
this theory is incorrect as a matter of constitutional history, and
that, as a matter of constitutional law, it is both stultifying and
unsound. It is, at best, a theory that can lead the Court only to a
Fourteenth Amendment dead end. And, at worst, the spell of the
theory's logic compels the Court either to impose intolerable
restrictions upon the constitutional sovereignty of the individual
States in the administration of their own criminal law, or else
intolerably to relax the explicit restrictions that the Framers
actually did put upon the Federal Government in the administration
of criminal justice. All this, and much more, is elaborated in MR.
JUSTICE HARLAN s separate opinion, and I would affirm the judgments
in both No. 188 and No. 927 for substantially the reasons he
states. [
Footnote 4/1]
Page 399 U. S. 144
The architect of the contemporary "incorporation" approach to
the Fourteenth Amendment is, of course, MR. JUSTICE BLACK.
See
Adamson v. California, 332 U. S. 46,
332 U. S. 68
(dissenting opinion). [
Footnote
4/2] And the separate opinion my Brother BLACK has filed today
in No. 927 could serve as Exhibit A to illustrate the extraordinary
habits of thought into which some of us have fallen in conditioned
reflex to that erroneous constitutional doctrine. "Incorporation"
has become so Pavlovian that my Brother BLACK barely mentions the
Fourteenth Amendment in the course of an 11-page opinion dealing
with the procedural rule the State of Florida has adopted for cases
tried in Florida courts under Florida's criminal laws. [
Footnote 4/3] His opinion relies instead
upon the "plain and obvious meaning" of the "specific words" of the
Fifth Amendment and other "provisions of the Bill of Right" which,
together with "the history surrounding
Page 399 U. S. 145
the adoption of those provisions," make clear that "[t]he
Framers . . . designed" those rights "to shield the defendant
against state power."
Though I admire the rhetoric, I submit with all deference that
those statements are, to quote their author, "plainly and simply
wrong as a matter of fact and law. . . ." If the Constitution
forbids the Florida alibi defense procedure, it is because of the
Fourteenth Amendment, and not because of either the "specific
words" of the Bill of Rights or "the history surrounding" their
adoption. For, as every schoolboy knows, the Framers "designed" the
Bill of Rights not against "state power," but against the power of
the Federal Government. [
Footnote
4/4]
Surely MR. JUSTICE HARLAN is right when he says it is time for
the Court to face up to reality.
[
Footnote 4/1]
Like MR. JUSTICE HARLAN, I join Part I of the Court's opinion in
No. 927, relating to the "alibi" issue.
[
Footnote 4/2]
I have had occasion to state elsewhere my own understanding, for
whatever it is worth, of the motivational origins of Fourteenth
Amendment "incorporation":
"Shortly before Justice Jackson came to the Court, some of its
then more junior members had embraced the comforting theory that
the Fourteenth Amendment's substantive impact upon the states could
be exactly measured by the specific restrictions that the first
eight Amendments imposed upon the National Government. I call this
a 'comforting' theory because, for critics of the old Court's
subjective approach to due process, it was a theory that appeared
to give the Fourteenth Amendment objective content and definable
scope."
(Footnotes omitted.) P. Stewart, Robert H. Jackson's Influence
on Federal-State Relationships in Mr. Justice Jackson, Four
Lectures in His Honor 57, 76 (1969).
[
Footnote 4/3]
A worthy candidate for nomination as Exhibit B is the separate
opinion filed today in
Coleman v. Alabama, ante, p.
399 U. S. 14, by
my Brother DOUGLAS. In dealing with the procedure followed by
Alabama in the administration of Alabama criminal law, my Brother's
opinion advises us that "it is the Sixth Amendment that controls. .
. ." And this statement is made in the name of "strict construction
of the Constitution"!
[
Footnote 4/4]
This is not to say that I would agree that the Fifth Amendment
or any other provisions of the Bill of Rights would render
unconstitutional a federal alibi procedure similar to Florida's.
See 399 U.S.
78fn4/1|>n. 1,
supra.