Petitioner, who was charged with committing a misdemeanor, was
tried before a five-person jury pursuant to Georgia law, and
convicted. Though a criminal trial by a six-person jury is
permissible under
Williams v. Florida, 399 U. S.
78, petitioner maintains that a trial before a jury of
less than six is unconstitutional, a contention that the Georgia
courts rejected.
Held: The judgment is reversed and the case is
remanded. Pp.
435 U. S.
229-245;
435 U. S. 245;
435 U. S.
245-246.
138 Ga.App. 530,
227 S.E.2d
65, reversed and remanded.
MR. JUSTICE BLACKMUN, joined by MR. JUSTICE STEVENS, concluded
that a criminal trial to a jury of less than six persons
substantially threatens Sixth and Fourteenth Amendment guarantees.
Georgia has presented no persuasive argument to the contrary.
Neither the financial benefit nor the more dubious time-saving
benefit claimed is a factor of sufficient significance to offset
the substantial threat to the constitutional guarantees that
reducing the jury from six to five would create. Pp.
435 U. S.
229-245.
MR. JUSTICE WHITE concluded that a jury of less than six would
not satisfy the fair cross-section requirement of the Sixth and
Fourteenth Amendments. P.
435 U. S.
245.
MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE and MR. JUSTICE
REHNQUIST joined, concluded that, though the line between five- and
six-member juries is difficult to justify, a line has to be drawn
somewhere if the substance of jury trial in criminal cases is to be
preserved. Pp.
435 U. S.
245-246.
BLACKMUN, J., announced the Court's judgment and delivered an
opinion, in which STEVENS, J., joined. STEVENS, J., filed a
concurring statement,
post, p.
435 U. S. 245.
WHITE, J., filed a statement concurring in the judgment,
post, p.
435 U. S. 245.
POWELL, J., filed an opinion concurring in the judgment, in which
BURGER, C.J., and REHNQUIST, J., joined,
post, p.
435 U. S. 245.
BRENNAN, J., filed a separate opinion, in which STEWART and
MARSHALL, JJ., joined,
post, p.
435 U. S.
246.
Page 435 U. S. 224
MR. JUSTICE BLACKMUN announced the judgment of the Court and
delivered an opinion in which MR. JUSTICE STEVENS joined.
This case presents the issue whether a state criminal trial to a
jury of only five persons deprives the accused of the right to
trial by jury guaranteed to him by the Sixth and Fourteenth
Amendments. [
Footnote 1] Our
resolution of the issue requires an application of principles
enunciated in
Williams v. Florida, 399 U. S.
78 (1970), where the use of a six-person jury in a state
criminal trial was upheld against similar constitutional
attack.
I
In November, 1973, petitioner Claude Davis Ballew was the
manager of the Paris Adult Theatre at 320 Peachtree Street,
Atlanta, Ga. On November 9, two investigators from the Fulton
County Solicitor General's office viewed at the theater a motion
picture film entitled "Behind the Green Door." Record 46-48, 90.
After they had seen the film, they obtained
Page 435 U. S. 225
a warrant for its seizure, returned to the theater, viewed the
film once again, and seized it.
Id. at 48-50, 91.
Petitioner and a cashier were arrested. Investigators returned to
the theater on November 26, viewed the film in its entirety,
secured still another warrant, and, on November 27, once again
viewed the motion picture and seized a second copy of the film.
Id. at 53-55.
On September 14, 1974, petitioner was charged in a two-count
misdemeanor accusation with
"distributing obscene materials in violation of Georgia Code
Section 26-2101 in that the said accused did, knowing the obscene
nature thereof, exhibit a motion picture film entitled 'Behind the
Green Door' that contained obscene and indecent scenes. . . ."
App. 4-6. [
Footnote 2]
Petitioner was brought to trial in the Criminal Court of Fulton
County. [
Footnote 3] After a
jury of 5 persons had been selected
Page 435 U. S. 226
and sworn, petitioner moved that the court impanel a jury of 12
persons. Record 37-38. [
Footnote
4] That court, however, tried its misdemeanor case before
juries of five persons pursuant to Ga.Const., Art. 6. § 16, 1,
codified as Ga.Code § 2-5101 (1975), and to 1890-1891 Ga.Laws, No.
278, pp. 937-938, and 1935 Ga.Laws, No. 38, p. 498. [
Footnote 5] Petitioner contended that, for an
obscenity trial, a jury of only five was
Page 435 U. S. 227
constitutionally inadequate to assess the contemporary standards
of the community Record 13, 38. He also argued that the Sixth and
Fourteenth Amendments required a jury of at least six members in
criminal cases.
Id. at 38.
The motion for a 12-person jury was overruled, and the trial
went on to its conclusion before the 5-person jury that had been
impaneled. At the conclusion of the trial, the jury deliberated for
38 minutes and returned a verdict of guilty on both counts of the
accusation.
Id. at 205-208. The court imposed a sentence
of one year and a $1,000 fine on each count, the periods of
incarceration to run concurrently and to be suspended upon payment
of the fines.
Id. at 117, 209. After a subsequent hearing,
the court denied an amended motion for a new trial. [
Footnote 6]
Petitioner took an appeal to the Court of Appeals of the State
of Georgia. There. he argued: first, the evidence was insufficient.
Second, the trial court committed several First Amendment errors,
namely, that the film, as a matter of law, was not obscene, and
that the jury instructions incorrectly explained the standard of
scienter, the definition of obscenity, and the scope of
community standards. Third, the seizures of the films were illegal.
Fourth, the convictions on both counts had placed petitioner in
double jeopardy because he had shown only one motion picture.
Fifth, the use of the five-member jury deprived him of his Sixth
and Fourteenth Amendment right to a trial by jury.
Id. at
222-224.
Page 435 U. S. 228
The Court of Appeals rejected petitioner's contentions. 138
Ga.App. 530,
227 S.E.2d 65
(1976). The court independently reviewed the film in its entirety,
and held it to be "hard core pornography" and "obscene as a matter
of constitutional law and fact."
Id. at 532-533, 227
S.E.2d at 67-68. The evidence was sufficient to support the jury's
conclusion that petitioner possessed the requisite
scienter. As manager of the theater, petitioner had
advertised the movie, had sold tickets, was present when the films
were exhibited, had pressed the button that allowed entrance to the
seating area, and had locked the door after each arrest. This
evidence, according to the court, met the constructive knowledge
standard of § 26-2101. The court found no errors in the
instructions, in the issuance of the warrants, or in the presence
of the two convictions. In its consideration of the five-person
jury issue, the court noted that
Williams v. Florida had
not established a constitutional minimum number of jurors. Absent a
holding by this Court that a five-person jury was constitutionally
inadequate, the Court of Appeals considered itself bound by
Sanders v. State, 234 Ga. 586,
216 S.E.2d
838 (1975),
cert. denied, 424 U.
S. 931 (1976), where the constitutionality of the
five-person jury had been upheld. The court also cited the earlier
case of
McIntyre v. State, 190 Ga. 872, 11 S.E.2d 5
(1940), a holding to the same general effect, but without
elaboration.
The Supreme Court of Georgia denied certiorari. App. 26.
In his petition for certiorari here, petitioner raised three
issues: the unconstitutionality of the five-person jury; the
constitutional sufficiency of the jury instructions on
scienter and constructive, rather than actual, knowledge
of the contents of the film; and obscenity
vel non. We
granted certiorari. 429 U.S. 1071 (1977). Because we now hold that
the five-member jury does not satisfy the jury trial guarantee of
the Sixth Amendment, as applied to the States through the
Fourteenth, we do not reach the other issues.
Page 435 U. S. 229
II
The Fourteenth Amendment guarantees the right of trial by jury
in all state nonpetty criminal cases.
Duncan v. Louisiana,
391 U. S. 145,
391 U. S.
159-162 (1968). The Court in
Duncan applied
this Sixth Amendment right to the States because "trial by jury in
criminal cases is fundamental to the American scheme of justice."
Id. at
391 U. S. 149.
The right attaches in the present case because the maximum penalty
for violating § 26-2101, as it existed at the time of the alleged
offenses, exceeded six months' imprisonment. [
Footnote 7]
See Baldwin v. New York,
399 U. S. 66,
399 U. S. 68-69
(1970) (opinion of WHITE, J.).
In
Williams v. Florida, 399 U.S. at
399 U. S. 100,
the Court reaffirmed that 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, [391 U.S.] at
391 U. S.
156"
See Apodaca v. Oregon, 406 U.
S. 404,
406 U. S. 410
(1972) (opinion of WHITE, J.). This purpose is attained by the
participation of the community in determinations of guilt and by
the application of the common sense of laymen who, as jurors,
consider the case.
Williams v. Florida, 399 U.S. at
399 U. S.
100.
Williams held that these functions and this purpose
could be fulfilled by a jury of six members. As the Court's opinion
in that case explained at some length,
id. at
399 U. S. 86-90,
common law juries included 12 members by historical accident,
"unrelated to the great purposes which gave rise to the jury in
the
Page 435 U. S. 230
first place."
Id. at
399 U. S. 89-90.
The Court's earlier cases that had
assumed the number 12
to be constitutionally compelled were set to one side because they
had not considered history and the function of the jury. [
Footnote 8]
Id. at
399 U. S. 90-92.
Rather than requiring 12 members, then, the Sixth Amendment
mandated a jury only of sufficient size to promote group
deliberation, to insulate members from outside intimidation, and to
provide a representative cross-section of the community.
Id. at
399 U. S. 100.
Although recognizing that by, 1970, little empirical research had
evaluated jury performance, the Court found no evidence that the
reliability of jury verdicts diminished with six-member panels. Nor
did the Court anticipate significant differences in result,
including the frequency of "hung" juries.
Id. at
399 U. S.
101-102, and nn. 47 and 48. Because the reduction in
size did not threaten exclusion of any particular class from jury
roles, concern that the representative or cross-section character
of the jury would suffer with a decrease to six members seemed "an
unrealistic one."
Id. at
399 U. S. 102.
As a consequence, the six-person jury was held not to violate the
Sixth and Fourteenth Amendments.
III
When the Court in
Williams permitted the reduction in
jury size -- or, to put it another way, when it held that a jury of
six was not unconstitutional -- it expressly reserved ruling on the
issue whether a number smaller than six passed constitutional
scrutiny.
Id. at
399 U. S. 91 n.
28. [
Footnote 9]
See Johnson v.
Louisiana, 406
Page 435 U. S. 231
U.S. 356,
406 U. S.
365-366 (1972) (concurring opinion). The Court refused
to speculate when this so-called "slippery slope" would become too
steep. We face now, however, the two-fold question whether a
further reduction in the size of the state criminal trial jury does
make the grade too dangerous, that is, whether it inhibits the
functioning of the jury as an institution to a significant degree,
and, if so, whether any state interest counterbalances and
justifies the disruption so as to preserve its
constitutionality.
Williams v. Florida and
Colgrove v. Battin,
413 U. S. 149
(1973) (where the Court held that a jury of six members did not
violate the Seventh Amendment right to a jury trial in a civil
case), generated a quantity of scholarly work on jury size.
[
Footnote 10] These writings
do not draw or identify a bright line
Page 435 U. S. 232
below which the number of jurors would not be able to function
as required by the standards enunciated in
Williams. On
the other hand, they raise significant questions about the wisdom
and constitutionality of a reduction below six. We examine these
concerns:
First, recent empirical data suggest that progressively smaller
juries are less likely to foster effective group deliberation. At
some point, this decline leads to inaccurate factfinding and
incorrect application of the common sense of the community to the
facts. Generally, a positive correlation exists between group size
and the quality of both group performance
Page 435 U. S. 233
and group productivity. [
Footnote 11] A variety of explanations have been offered
for this conclusion. Several are particularly applicable in the
jury setting. The smaller the group, the less likely are members to
make critical contributions necessary for the solution of a given
problem. [
Footnote 12]
Because most juries are not permitted to take notes,
see
Forston, Sense and Non-Sense: Jury Trial Communication, 1975
B.Y.U.L.Rev. 601, 631-633, memory is important for accurate jury
deliberations. As juries decrease in size, then, they are less
likely to have members who remember each of the important pieces of
evidence or argument. [
Footnote
13] Furthermore, the smaller the group, the less likely it is
to overcome the biases of its members to obtain an accurate result.
[
Footnote 14] When
individual and group decisionmaking were compared, it was seen that
groups performed better because prejudices of individuals were
frequently counterbalanced, and objectivity resulted. Groups also
exhibited increased motivation and self-criticism. All these
advantages, except, perhaps, self-motivation, tend to diminish as
the size of the group diminishes. [
Footnote 15] Because juries frequently face complex
problems laden with value choices, the benefits are important, and
should be retained. In particular,
Page 435 U. S. 234
the counterbalancing of various biases is critical to the
accurate application of the common sense of the community to the
facts of any given case.
Second, the data now raise doubts about the accuracy of the
results achieved by smaller and smaller panels. Statistical studies
suggest that the risk of convicting an innocent person (Type I
error) rises as the size of the jury diminishes. [
Footnote 16] Because the risk of not
convicting a guilty person (Type II error) increases with the size
of the panel, [
Footnote 17]
an optimal jury size can be selected as a function of the
interaction between the two risks. Nagel and Neef concluded that
the optimal size, for the purpose of minimizing errors, should vary
with the importance attached to the two types of mistakes. After
weighting Type I error as 10 times more significant than Type II,
perhaps not an unreasonable assumption, they concluded that the
optimal jury size was between six and eight. As the size diminished
to five and below, the weighted sum of errors increased because of
the enlarging risk of the conviction of innocent defendants.
[
Footnote 18]
Another doubt about progressively smaller juries arises from the
increasing inconsistency that results from the decreases. Saks
argued that the
"more a jury type fosters consistency, the greater will be the
proportion of juries which select the correct (
i.e., the
same) verdict, and the fewer 'errors' will be made."
Saks 86-87. From his mock trials held before undergraduates and
former jurors, he computed the percentage of "correct" decisions
rendered by 12-person and 6-person panels. In the student
experiment, 12-person groups reached correct
Page 435 U. S. 235
verdicts 83% of the time; 6-person panels reached correct
verdicts 69% of the time. The results for the former juror study
were 71% for the 12-person groups and 57%.for the 6-person groups.
Ibid. Working with statistics described in H. Kalven &
H. Zeisel, The American Jury 460 (1966), Nagel and Neef tested the
average conviction propensity of juries, that is, the likelihood
that any given jury of a set would convict the defendant. [
Footnote 19] They found that half of
all 12-person juries would have average conviction propensities
that varied by no more than 20 points. Half of all six-person
juries, on the other hand, had average conviction propensities
varying by 30 points, a difference they found significant in both
real and percentage terms. [
Footnote 20] Lempert reached similar results when he
considered the likelihood of juries to compromise over the various
views of their members, an important phenomenon for the fulfillment
of the common sense function. In civil trials, averaging occurs
with respect to damages amounts. In criminal trials, it relates to
numbers of counts and lesser included offenses. [
Footnote 21] And he predicted that
compromises would be more consistent when larger juries were
employed. For example, 12-person juries could be expected to reach
extreme compromises in 4% of the cases, while 6-person panels would
reach extreme results in 16%. [
Footnote 22] All three of these post-
Williams
studies, therefore, raise significant doubts about the consistency
and reliability of the decisions of smaller juries.
Page 435 U. S. 236
Third, the data suggest that the verdicts of jury deliberation
in criminal cases will vary as juries become smaller, and that the
variance amounts to an imbalance to the detriment of one side, the
defense. Both Lempert and Zeisel found that the number of hung
juries would diminish as the panels decreased in size. Zeisel said
that the number would be cut in half -- from 5,% to 2.4% with a
decrease from 12 to 6 members. [
Footnote 23] Both studies emphasized that juries in
criminal cases generally hang with only one, or more likely two,
jurors remaining unconvinced of guilt. [
Footnote 24] Also, group theory suggests that a person
in the minority will adhere to his position more frequently when he
has at least one other person supporting his argument. [
Footnote 25] In the jury setting,
the significance of this tendency is demonstrated by the following
figures: if a minority viewpoint is shared by 10% of the community,
28.2% of 12-member juries may be expected to have no minority
representation, but 53.1% of 6-member juries would have none.
Thirty-four percent of 12-member panels could be expected to have
two minority members, while only 11% of 6-member panels would have
two. [
Footnote 26] As the
numbers diminish below six, even fewer panels would have one member
with the minority viewpoint, and still fewer would have two. The
chance for hung juries would decline accordingly.
Fourth, what has just been said about the presence of minority
viewpoint as juries decrease in size foretells problems not only
for jury decisionmaking, but also for the representation of
minority groups in the community. The Court repeatedly has held
that meaningful community participation cannot be attained with the
exclusion of minorities or other
Page 435 U. S. 237
identifiable groups from jury service.
"It is part of the established tradition in the use of juries as
instruments of public justice that the jury be a body truly
representative of the community."
Smith v. Texas, 311 U. S. 128,
311 U. S. 130
(1940). The exclusion of elements of the community from
participation
"contravenes the very idea of a jury . . . composed of 'the
peers or equals of the person whose rights it is selected or
summoned to determine.'"
Carter v. Jury Comm'n, 396 U.
S. 320,
396 U. S. 330
(1970), quoting
Strauder v. West Virginia, 100 U.
S. 303,
100 U. S. 308
(1880). Although the Court in
Williams concluded that the
six-person jury did not fail to represent adequately a
cross-section of the community, the opportunity for meaningful and
appropriate representation does decrease with the size of the
panels. Thus, if a minority group constitutes 10% of the community,
53.1% of randomly selected six-member juries could be expected to
have no minority representative among their members, and 89% not to
have two. [
Footnote 27]
Further reduction in size will erect additional barriers to
representation.
Fifth, several authors have identified in jury research
methodological problems tending to mask differences in the
operation of smaller and larger juries. [
Footnote 28] For example, because the judicial system
handles so many clear cases, decisionmakers will reach similar
results through similar analyses most of the time. One study
concluded that smaller and larger juries could disagree in their
verdicts in no more than 14% of the cases. [
Footnote 29] Disparities, therefore, appear in
only small percentages. Nationwide, however, these small
percentages will represent a large number of cases. And it is with
respect to those cases that the jury trial right has its
Page 435 U. S. 238
greatest value. When the case is close, and the guilt or
innocence of the defendant is not readily apparent, a properly
functioning jury system will insure evaluation by the sense of the
community, and will also tend to insure accurate factfinding.
[
Footnote 30] Studies that
aggregate data also risk masking case-by-case differences in jury
deliberations. The authors, H. Kalven and H. Zeisel, of The
American Jury (1966), examined the judge-jury disagreement. They
found that judges held for plaintiffs 57% of the time, and that
juries held for plaintiffs 59%, an insignificant difference. Yet
case-by-case comparison revealed judge-jury disagreement in 22% of
the cases.
Id. at 63, cited in Lempert 656. This casts
doubt on the conclusion of another study that compared the
aggregate results of civil cases tried before 6-member juries with
those of 12-member jury trials. [
Footnote 31] The investigator in that study had claimed
support for his hypothesis that damages awards did
Page 435 U. S. 239
not vary with the reduction in jury size. Although some might
say that figures in the aggregate may have supported this
conclusion, a closer view of the cases reveals greater variation in
the results of the smaller panels,
i.e., a standard
deviation of $58,335 for the 6-member juries, and of $24,834 for
the 12-member juries. [
Footnote
32] Again, the averages masked significant case-by-case
differences that must be considered when evaluating jury function
and performance.
IV
While we adhere to, and reaffirm our holding in
Williams v.
Florida, these studies, most of which have been made since
Williams was decided in 1970, lead us to conclude that the
purpose and functioning of the jury in a criminal trial is
seriously impaired, and to a constitutional degree, by a reduction
in size to below six members. We readily admit that we do not
pretend to discern a clear line between six members and five. But
the assembled data raise substantial doubt about the reliability
and appropriate representation of panels smaller than six. Because
of the fundamental importance of the jury trial to the American
system of criminal justice, any further reduction that promotes
inaccurate and possibly biased decisionmaking, that causes untoward
differences in verdicts, and that prevents juries from truly
representing their communities, attains constitutional
significance.
Georgia here presents no persuasive argument that a reduction to
five does not offend important Sixth Amendment interests. First,
its reliance on
Johnson v. Louisiana, 406 U.
S. 356 (1972), for the proposition that the Court
previously has approved the five-person jury is misplaced. In
Johnson, the
Page 435 U. S. 240
petitioner challenged the Louisiana statute that permitted
felony convictions on less than unanimous verdicts. The prosecution
had to garner only nine votes of the 12-member jury to convict in a
felony trial. The Court held that the statute did not violate the
due process guarantee by diluting the reasonable doubt standard.
Id. at
406 U. S. 363. The
only discussion of the five-person panels, which heard less serious
offenses, was with respect to the petitioner's equal protection
challenge. He contended that requiring only nine members of a
12-person panel to convict in a felony case was a deprival of equal
protection when a unanimous verdict was required from the 5-member
panel used in a misdemeanor trial. The Court held merely that the
classification was not invidious.
Id. at
406 U. S. 364.
Because the issue of the constitutionality of the five-member jury
was not. then before the Court, it did not rule upon it.
Second, Georgia argues that its use of five-member juries does
not violate the Sixth and Fourteenth Amendments, because they are
used only in misdemeanor case. If six persons may constitutionally
assess the felony charge in
Williams, the State reasons,
five persons should be a constitutionally adequate number for a
misdemeanor trial. The problem with this argument is that the
purpose and functions of the jury do not vary significantly with
the importance of the crime. In
Baldwin v. New York,
399 U. S. 66
(1970), the Court held that the right to a jury trial attached in
both felony and misdemeanor cases. Only in cases concerning truly
petty crimes, where the deprivation of liberty was minimal, did the
defendant have no constitutional right to trial by jury. In the
present case, the possible deprivation of liberty is substantial.
The State charged petitioner with misdemeanors under Ga.Code Ann. §
26-2101 (1972), and he has been given concurrent sentences of
imprisonment, each for one year, and fines totaling $2,000 have
been imposed. We cannot conclude that there is less need for the
imposition and
Page 435 U. S. 241
the direction of the sense of the community in this case than
when the State has chosen to label an offense a felony. [
Footnote 33] The need for an
effective jury here must be judged by the same standards announced
and applied in
Williams v. Florida.
Third, the retention by Georgia of the unanimity requirement
does not solve the Sixth and Fourteenth Amendment problem. Our
concern has to do with the ability of the smaller group to perform
the functions mandated by the Amendments. That a five-person jury
may return a unanimous decision does not speak to the questions
whether the group engaged in meaningful deliberation, could
remember all the important facts and arguments, and truly
represented the sense of the entire community. Despite the presence
of the unanimity requirement., then, we cannot conclude that
"the interest of the defendant in having the judgment of his
peers interposed between himself and the officers of the State who
prosecute and judge him is equally well served"
by the five-person panel.
Apodaca v. Oregon, 406 U.S.
at
406 U. S. 411
(opinion of WHITE, J.).
Fourth, Georgia submits that the five-person jury adequately
represents the community because there is no arbitrary exclusion of
any particular class. We agree that it has not been demonstrated
that the Georgia system violates the Equal Protection Clause by
discriminating on the basis of race or some other improper
classification.
See Carter v.
Jury
Page 435 U. S. 242
Comm'n, 396 U. S. 20
(1970);
Smith v. Texas, 311 U. S. 128
(1940). But the data outlined above raise substantial doubt about
the ability of juries truly to represent the community as
membership decreases below six. If the smaller and smaller juries
will lack consistency, as the cited studies suggest, then the sense
of the community will not be applied equally in like cases. Not
only is the representation of racial minorities threatened in such
circumstances, but also majority attitude or various minority
positions may be misconstrued or misapplied by the smaller groups.
Even though the facts of this case would not establish a jury
discrimination claim under the Equal Protection Clause, the
question of representation does constitute one factor of several
that, when combined, create a problem of constitutional
significance under the Sixth and Fourteenth Amendments.
Fifth, the empirical data cited by Georgia do not relieve our
doubts. The State relies on the Saks study for the proposition that
a decline in the number of jurors will not affect the aggregate
number of convictions or hung juries. Tr. of Oral Arg. 27. This
conclusion, however, is only one of several in the Saks study; that
study eventually concludes:
"Larger juries (size twelve) are preferable to smaller juries
(six). They produce longer deliberations, more communication, far
better community representation, and, possibly, greater verdict
reliability (consistency)."
Saks 107.
Far from relieving our concerns, then, the Saks study supports
the conclusion that further reduction in jury size threatens Sixth
and Fourteenth Amendment interests.
Methodological problems prevent reliance on the three studies
that do purport to bolster Georgia's position. The reliability of
the two Michigan studies cited by the State has been criticized
elsewhere. [
Footnote 34] The
critical problem with the
Page 435 U. S. 243
Michigan laboratory experiment, which used a mock civil trial,
was the apparent clarity of the case. Not one of the juries found
for the plaintiff in the tort suit; this masked any potential
difference in the decisionmaking of larger and smaller panels. The
results also have been doubted because, in the experiment, only
students composed the juries, only 16 juries were tested, and only
a video tape of the mock trial was presented. [
Footnote 35] The statistical review of the
results of actual jury trials in Michigan erroneously aggregated
outcomes. It is also said that it failed to take account of
important changes of court procedure initiated at the time of the
reduction in size from 12 to 6 members. [
Footnote 36] The Davis study, which employed a mock
criminal trial for rape, also presented an extreme set of facts, so
that none of the panels rendered a guilty verdict. [
Footnote 37] None of these three reports,
therefore, convinces us that a reduction in the number of jurors
below six will not affect to a constitutional degree the
functioning of juries in criminal trials.
V
With the reduction in the number of jurors below six creating a
substantial threat to Sixth and Fourteenth Amendment guarantees, we
must consider whether any interest of the State justifies the
reduction. We find no significant state advantage in reducing the
number of jurors from six to five.
The States utilize juries of less than 12 primarily for
administrative reasons. Savings in court time and in financial
costs
Page 435 U. S. 244
are claimed to justify the reductions. [
Footnote 38] The financial benefit of the
reduction from 12 to 6 are substantial; this is mainly because
fewer jurors draw daily allowances as they hear cases. [
Footnote 39] On the other hand, the
asserted saving in judicial time is not so clear. Pabst, in his
study, found little reduction in the time for
voir dire
with the six-person jury, because many questions were directed at
the veniremen as a group. [
Footnote 40] Total trial time did not diminish, and court
delays and backlogs improved very little. [
Footnote 41] The point that is to be made, of
course, is that a reduction in size from six to five or four or
even three would save the States little. They could reduce slightly
the daily allowances, but, with a reduction from six to five, the
saving would be minimal. If little time is gained by the reduction
from 12 to 6, less will be gained with a reduction from 6 to 5.
Perhaps this explains why only two States, Georgia and Virginia,
[
Footnote 42] have reduced
the size of juries in certain nonpetty criminal cases to five.
Other States appear content with six members or more. [
Footnote 43] In short, the State has
offered little or no justification for its reduction to five
members.
Page 435 U. S. 245
Petitioner, therefore, has established that his trial on
criminal charges before a five-member jury deprived him of the
right to trial by jury guaranteed by the Sixth and Fourteenth
Amendments.
VI
The judgment of the Court of Appeals is reversed, and the case
is remanded for further proceedings not inconsistent with this
opinion.
It is so ordered.
[
Footnote 1]
The Sixth Amendment reads:
"In all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence."
The Amendment's provision as to trial by jury is made applicable
to the States by the Fourteenth Amendment.
Duncan v.
Louisiana, 391 U. S. 145
(1968).
[
Footnote 2]
Georgia Code Ann. § 26-2101 (1972), in effect at the time of the
alleged offenses, was entitled "Distributing obscene materials,"
and read:
"(a) A person commits the offense of distributing obscene
materials when he sells, lends, rents, leases, gives, advertises,
publishes, exhibits or otherwise disseminates to any person any
obscene material of any description, knowing the obscene nature
thereof, or who offers to do so, or who possesses such material
with the intent so to do: Provided, that the word 'knowing' as used
herein shall be deemed to be either actual or constructive
knowledge of the obscene contents of the subject matter; and a
person has constructive knowledge of the obscene contents if he has
knowledge of facts which would put a reasonable and prudent man on
notice as to the suspect nature of the material."
"(b) Material is obscene if considered as a whole, applying
community standards, its predominant appeal is to prurient
interest, that is, a shameful or morbid interest in nudity, sex or
excretion, and utterly without redeeming social value and if, in
addition, it goes substantially beyond customary limits of candor
in describing or representing such matters. . . ."
1975 Ga.Laws No. 204, p. 498, now Ga.Code Ann. § 26-2101 (Supp.
1977), entirely superseded the earlier version.
[
Footnote 3]
The name of the Criminal Court of Fulton County was changed,
effective January 2, 1977, by the merger of that court with the
Civil Court of Fulton County into a tribunal now known as the State
Court of Fulton County. 1976 Ga.Laws No. 1004, p. 3023.
[
Footnote 4]
Petitioner asked, in the alternative, that the case be
transferred to the Fulton County Superior Court. That court had
concurrent jurisdiction over the case. Ga.Const., Art. 6, § 4, � 1,
codified as Ga.Code § 2-3901 (1975);
Nobles v. State, 81
Ga.App. 229,
58 S.E.2d 496
(1950). The Superior Court could have impaneled a jury of 12.
Ga.Const., Art. 6, § 16, � 1, codified as Ga.Code § 2-5101 (1975).
Because the State had the choice of bringing the case in either the
Criminal Court or the Superior Court, petitioner argued that trial
before the smaller jury violated equal protection and due process
guaranteed him under the Fourteenth Amendment. Record 12-13. The
transfer was denied. He has not pressed the contention before this
Court, and we do not reach it.
[
Footnote 5]
1890-1891 Ga.Laws, No. 278, pp. 937-938, states in part:
"The proceedings [in the Criminal Court of Atlanta] after
information or accusation, shall conform to the rules governing
like proceedings in the Superior Courts, except that the jury in
said court, shall consist of five, to be stricken alternately by
the defendant and State from a panel of twelve. The defendant shall
be entitled to four (4) strikes and the State three (3) and the
five remaining jurors shall compose the jury."
The cited 1935 statute changed the name of the Criminal Court of
Atlanta to the Criminal Court of Fulton County. It was intimated at
oral argument that only this particular court in Georgia employed
fewer than six jurors. Tr. of Oral Arg. 25.
Effective March 24, 1976, the number of jurors in the Criminal
Court of Fulton County was changed from five to six. 1976 Ga.Laws
No. 1003, p. 3019.
Irrespective of its size, the Georgia jury in a criminal trial,
in order to convict, must do so by unanimous vote.
Ball v.
State, 9 Ga.App. 162, 70 S.E. 888 (1911).
[
Footnote 6]
Petitioner, in his amended motion for a new trial, argued that
the films were seized illegally under a defective warrant; that the
obscenity statute, § 26-2101, violated the First, Fourth, Fifth,
Sixth, and Fourteenth Amendments; that the double conviction had
placed petitioner in double jeopardy, in violation of the Fifth
Amendment and Ga.Code § 2-108 (1975); that the evidence was
insufficient to support the verdicts; that the trial court
erroneously excluded the testimony of a defense expert witness; and
that the court's instruction on
scienter improperly
shifted the burden of proof to the defense. Record 19-21.
[
Footnote 7]
The maximum penalty for a conviction of a misdemeanor in Georgia
in 1973 was imprisonment for not to exceed 12 months, or a fine not
to exceed $1,000, or both. Ga.Code Ann. § 27-2506 (1972). With the
change in § 26-2101 effected by 1975 Ga.Laws No. 204, p. 498, the
offenses charged against petitioner would now be punishable as for
"a misdemeanor of a high and aggravated nature," and the maximum
penalty is imprisonment for not to exceed 12 months, or a fine not
to exceed $5,000, or both. Ga.Code § 27-2506(c) (Supp. 1977).
[
Footnote 8]
The Court rejected the assumption, made in
Thompson v.
Utah, 170 U. S. 343,
170 U. S. 349
(1898), and certain later cases,
see Patton v. United
States, 281 U. S. 276,
281 U. S. 288
(1930);
Rassmussen v. United States, 197 U.
S. 516,
197 U. S. 519,
528 (1905); and
Maxwell v. Dow, 176 U.
S. 581,
176 U. S. 586
(1900), that the 12-member feature was a constitutional
requirement.
[
Footnote 9]
In the cited footnote the Court said:
"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."
Respondent picks up the last phrase with absolute literalness
here when it argues: "If six is above the minimum, five cannot be
below the minimum. There is no number in between." Brief for
Respondent 4; Tr. of Oral Arg. 24. We, however, do not accept the
proposition that by stating the number six was "above" the
constitutional minimum the Court, by implication, held that at
least the number five was constitutional. Instead, the Court was
holding that six passed constitutional muster, but was reserving
judgment on any number less than six.
[
Footnote 10]
E.g., M. Saks, Jury Verdicts (1977) (hereinafter cited
as Saks); Bogue & Fritz, The Six-Man Jury, 17 S.D.L.Rev. 285
(1972); Davis, Kerr, Atkin, Holt, & Mech, The Decision
Processes of 6- and 12-Person Mock Juries Assigned Unanimous and
Two-Thirds Majority Rules, 32 J. of Personality & Soc. Psych. 1
(1975); Diamond, A Jury Experiment Reanalyzed, 7 U.Mich.J.L.Reform
520 (1974); Friedman, Trial by Jury: Criteria for Convictions, Jury
Size and Type I and Type II Errors, 26-2 Am.Stat. 21 (Apr.1972)
(hereinafter cited as Friedman); Institute of Judicial
Administration, A Comparison of Six- and Twelve-Member Civil Juries
in New Jersey Superior and County Courts (1972); Lempert,
Uncovering "Nondiscernible" Differences: Empirical Research and the
Jury Size Cases, 73 Mich.L.Rev. 643 (1975) (hereinafter cited as
Lempert); Nagel & Neef, Deductive Modeling to Determine an
Optimum Jury Size and Fraction Required to Convict, 1975
Wash.U.L.Q. 933 (hereinafter cited as Nagel & Neef); New Jersey
Criminal Law Revision Commission, Six-Member Juries (1971); Pabst,
Statistical Studies of the Costs of Six-Man versus Twelve-Man
Juries, 14 Wm. & Mary L.Rev. 326 (1972) (hereinafter cited as
Pabst.); Saks, Ignorance of Science Is No Excuse, 10 Trial 18
(Nov.-Dec.1974); Thompson, Six Will Do!, 10 Trial 12
(Nov.-Dec.1974); Zeisel, Twelve is Just, 10 Trial 13
(Nov.-Dec.1974); Zeisel, . . . And Then There Were None: The
Diminution of the Federal Jury, 38 U.Chi.L.Rev. 710 (1971)
(hereinafter cited as Zeisel); Zeisel, The Waning of the American
Jury, 58 A.B.A.J. 367 (1972); Zeisel & Diamond, "Convincing
Empirical Evidence" on the Six Member Jury, 41 U.Chi.L.Rev. 281
(1974) (hereinafter cited as Zeisel & Diamond); Note, The
Effect of Jury Size on the Probability of Conviction: An Evaluation
of
Williams v. Florida, 2 Case W.Res.L.Rev. 529 (1971)
(hereinafter cited as Note, Case W.Res.); Note, Six-Member and
Twelve-Member Juries: An Empirical Study of Trial Results, 6
U.Mich.J.L.Reform 671 (1973); Note, An Empirical Study of Six- and
Twelve-Member Jury Decision-Making Processes, 6 U.Mich.J.L.Reform
712 (1973).
Some of these studies have been pressed upon us by the parties.
Brief for Petitioner 7-9; Tr. of Oral Arg. 26-27.
We have considered them carefully, because they provide the only
basis, besides judicial hunch, for a decision about whether smaller
and smaller juries will be able to fulfill the purpose and
functions of the Sixth Amendment. Without an examination about how
juries and small groups actually work, we would not understand the
basis for the conclusion of MR. JUSTICE POWELL that "a line has to
be drawn somewhere." We also note that THE CHIEF JUSTICE did not
shrink from the use of empirical data in
Williams v.
Florida, 399 U. S. 78,
399 U. S.
100-102, 105 (1970), when the data were used to support
the constitutionality of the six-person criminal jury, or in
Colgrove v. Battin, 413 U. S. 149,
413 U. S.
158-160 (1973), a decision also joined by MR. JUSTICE
REHNQUIST.
[
Footnote 11]
Two researchers have summarized the findings of 31 studies in
which the size of groups from 2 to 20 members was an important
variable. They concluded that there were no conditions under which
smaller groups were superior in the quality of group performance
and group productivity. Thomas Fink, Effects of Group Size, 60
Psych.Bull. 371, 373 (1963), cited in Lempert 685.
See
Saks 77
et seq., 107.
[
Footnote 12]
See Faust., Group versus Individual Problem-Solving, 59
J.Ab. & Soc.Psych. 68, 71 (1959), cited in Lempert 685 and
686.
[
Footnote 13]
Saks 77
et seq.; see Kelley & Thibaut, Group
Problem Solving, 4 Handbook of Soc.Psych. 68-69 (2d ed., G. Lindzey
& E. Anderson 1969) (hereinafter cited as Kelley &
Thibaut).
[
Footnote 14]
Lempert 687-688, citing Barnlund, A Comparative Study of
Individual, Majority, and Group Judgment, 58 J.Ab. & Soc.Psych.
55, 59 (1959);
see Kelley & Thibaut 67.
[
Footnote 15]
Lempert 687-688, citing Barnlund,
supra, n.
14 pp. 58-59.
[
Footnote 16]
Friedman; Nagel & Neef.
[
Footnote 17]
Nagel & Neef 945
[
Footnote 18]
Id. at 946-948, 956, 975. Friedman reached a similar
conclusion. He varied the appearance of guilt in his statistical
study. The more guilty the person appeared, the greater the chance
that a 6-member panel would convict when a 12-member panel would
not. As jury size was reduced, the risk of Type I error would
increase, Friedman said, without a significant corresponding
advantage in reducing Type II error. Friedman 23.
[
Footnote 19]
Nagel & Neef 952, 971, concluded that the average juror had
a propensity to convict more frequently than to acquit, a tendency
designated by the figure .677. In other words, if the average jury
considered the average case, 67.7% of the jurors would vote to
convict.
[
Footnote 20]
With the average juror having a conviction propensity of .677,
the average 12-member jury propensities ranged from .579 to .775.
The average six-member jury propensities ranged from .530 to .830.
Id. at 971-972.
[
Footnote 21]
Lempert 680.
[
Footnote 22]
Accord, Zeisel 718; Note, Case W.Res. 547.
[
Footnote 23]
Zeisel 720;
accord, Lempert 676.
But see Saks
89-90.
[
Footnote 24]
Lempert 674-677; Zeisel 719.
[
Footnote 25]
Asch, Effects of Group Pressure upon the Modification and
Distortion of Judgments in Group Dynamics Research and Theory, 189,
196-197 (2d ed., 1960), cited in Lempert 673.
[
Footnote 26]
Id. at 669, 677
[
Footnote 27]
Ibid; Saks 90.
[
Footnote 28]
Lempert 648-653; Nagel & Neef 934-937; Saks, Ignorance of
Science Is No Excuse,
supra, n 10, at 19; Zeisel & Diamond 283-291; Note, Case
W.Res. 535.
[
Footnote 29]
Lempert 648-653
[
Footnote 30]
Zeisel and Diamond have criticized one of the more important
studies supporting smaller juries.
See n 34,
infra. In Note, An Empirical
Study of Six- and Twelve-Member Jury Decision-Making Processes, 6
U.Mich.J.L.Reform 712 (1973), the author tested the deliberations
of larger and smaller panels by showing to sets of both sizes the
video tape of a single mock civil trial. The case concerned an
automobile accident, and turned on whether the plaintiff had been
speeding. If so, Michigan law precluded recovery because of
contributory negligence. Of the 16 juries tested, not one found for
the plaintiff. This led Zeisel and Diamond to conclude:
"The evidence in the case overwhelmingly favored the defendant.
. . . This overpowering bias makes the experiment irrelevant. On
the facts of this case, any jury under any rules would probably
have arrived at the same verdict. Hence, to conclude from this
experiment that jury size generally has no effect on the verdict is
impermissible."
Zeisel & Diamond 287.
See also Diamond, A Jury
Experiment Reanalyzed, 7 U.Mich.J.L.Reform 520 (1974). The
criticized study was cited and relied upon by the Court in
Colgrove v. Battin, 413 U. S. 149,
413 U. S. 159
n. 15 (1973).
[
Footnote 31]
See Note, Six-Member and Twelve-Member Juries: An
Empirical Study of Trial Results, 6 U.Mich. J.L.Reform 671 (1973).
This also was cited and relied upon in
Colgrove v. Battin,
413 U.S. at
413 U. S. 159
n. 15.
[
Footnote 32]
Zeisel & Diamond 289-90. These authors also criticized the
Michigan study because it ignored two other important changes that
had occurred when the size of civil juries was decreased from 1 to
6 members: a mediation board, which encouraged settlements, had
been introduced, and rules that permitted discovery of insurance
policy limits had taken effect.
See Saks 43.
[
Footnote 33]
We do not rely on any First Amendment aspect of this case in
holding the five-person jury unconstitutional. Nevertheless, the
nature of the substance of the misdemeanor charges against
petitioner supports the refusal to distinguish between felonies and
misdemeanors. The application of the community's standards and
common sense is important in obscenity trials, where juries must
define and apply local standards.
See Miller v.
California, 413 U. S. 15
(1973). The opportunity for harassment and overreaching by an
overzealous prosecutor or a biased judge is at least as significant
in an obscenity trial as in one concerning an armed robbery. This
fact does not change merely because the obscenity charge may be
labeled a misdemeanor and the robbery a felony.
[
Footnote 34]
Note, Six-Member and Twelve-Member Juries: An Empirical Study of
Trial Results, 6 U.Mich.J.L.Reform 671 (1973) (a statistical study
of actual jury results), and Note, An Empirical Study of Six- and
Twelve-Member Jury Decision-Making Processes, 6 U.Mich.J.L.Reform
712 (1973) (a laboratory experiment using a mock trial), were both
criticized in Saks 43-46, and in Zeisel & Diamond 286-290. The
second study was criticized in Diamond, A Jury Experiment
Reanalyzed, 7 U.Mich.J.L.Reform 520 (1974). The Michigan studies
were advanced by the State at oral argument. Tr. of Oral Arg.
27.
[
Footnote 35]
Saks 45.
[
Footnote 36]
Id. at 43-44; Zeisel & Diamond 288-290.
[
Footnote 37]
Davis,
et al., supra, n 10, at 7, criticized in Saks 49-51.
[
Footnote 38]
See New Jersey Criminal Law Revision Commission,
Six-Member Juries (1971); Bogue & Fritz, The Six-Man Jury, 17
S.D.L.Rev. 285 (1972).
[
Footnote 39]
It has been said that a reduction from 12 jurors to 6 throughout
the federal system could save at least $4 million annually. Zeisel,
Twelve is Just, 10 Trial 13 (Nov.-Dec.1974). Another study
calculated a saving in jury man-hours of 41.9% with the reduction
to six members. Pabst, Statistical Studies of the Costs of Six-Man
versus Twelve-Man Juries, 14 Wm. & Mary L.Rev. 326, 328
(1972).
[
Footnote 40]
Id. at 327; Zeisel, Twelve is Just,
supra.
But see Institute of Judicial Administration, A Comparison
of Six- and Twelve-Member Civil Juries in New Jersey Superior and
County Courts 27-28 (1972); New Jersey Criminal Law Revision
Commission, Six-Member Juries 3-4 (1971); Thompson, Six Will Do, 10
Trial 12, 14 (Nov.-Dec.1974).
[
Footnote 41]
Pabst,
supra at 327-328.
[
Footnote 42]
Virginia Code § 19.2-262(2) (1975) permits juries of five in
misdemeanor cases.
[
Footnote 43]
Several States have provided for six-member juries for selected
criminal cases.
E.g., Colo.Rule Crim.Proc. 23 (1974);
Fla.Stat.Ann. § 913.10 (West 1973); Ky.Rev.Stat. § 29.015 (1971);
Mass.Gen.Laws Ann., ch. 218, § 27A (West Supp. 1977). Other States
provide for smaller juries upon stipulation of the parties.
E.g., Ark.Stat.Ann. § 43-1901 (1977); Cal.Civ.Proc.Code
Ann. § 194 (West 1954). The Federal Indian Civil Rights Act, § 202,
82 Stat. 77, 25 U.S.C. § 1302(10), provides for a right of jury
trial in certain cases before a jury of not less than six
persons.
MR. JUSTICE STEVENS, concurring.
While I join MR. JUSTICE BLACKMUN s opinion, I have not altered
the views I expressed in
Marks v. United States,
430 U. S. 188.
MR. JUSTICE WHITE, concurring in the judgment.
Agreeing that a jury of fewer than six persons would fail to
represent the sense of the community, and hence not satisfy the
fair cross-section requirement of the Sixth and Fourteenth
Amendments, I concur in the judgment of reversal.
MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE and MR. JUSTICE
REHNQUIST join, concurring in the judgment.
I concur in the judgment, as I agree that use of a jury as small
as five members, with authority to convict for serious offenses,
involves grave questions of fairness. As the opinion of MR. JUSTICE
BLACKMUN indicates, the line between five
Page 435 U. S. 246
and six-member juries is difficult to justify, but a line has to
be drawn somewhere if the substance of jury trial is to be
preserved.
I do not agree, however, that every feature of jury trial
practice must be the same in both federal and state courts.
Apodaca v. Oregon, 406 U. S. 404,
406 U. S. 414
(1972) (POWELL, J., concurring). Because the opinion of MR. JUSTICE
BLACKMUN today assumes full incorporation of the Sixth Amendment by
the Fourteenth Amendment contrary to my view in
Apodaca, I
do not join it. Also, I have reservations as to the wisdom -- as
well as the necessity -- of MR. JUSTICE BLACKMUN's heavy reliance
on numerology derived from statistical studies. Moreover, neither
the validity nor the methodology employed by the studies cited was
subjected to the traditional testing mechanisms of the adversary
process.
* The studies
relied on merely represent unexamined findings of persons
interested in the jury system.
For these reasons I concur only in the judgment.
* The opinion of MR. JUSTICE BLACKMUN acknowledges, in
disagreeing with other studies, that "methodological problems" may
"mask differences in the operation of smaller and larger juries."
Ante at
435 U. S. 237.
See also ante at
435 U. S.
242-243.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR.
JUSTICE MARSHALL join.
I join MR. JUSTICE BLACKMUN's opinion insofar as it holds that
the Sixth and Fourteenth Amendments require juries in criminal
trials to contain more than five persons. However, I cannot agree
that petitioner can be subjected to a new trial, since I continue
to adhere to my belief that Ga.Code Ann. 26-2101 (1972) is
overbroad, and therefore facially unconstitutional.
See Sanders
v. Georgia, 424 U. S. 931
(1976) (dissent from denial of certiorari).
See also Paris
Adult Theatre I v. Slaton, 413 U. S. 49,
413 U. S. 73
(1973) (BRENNAN, J., dissenting).