Journal of Criminal Law and CriminologyVolume 69Issue 4 Winter Article 7

Winter 1978

Sixth Amendment--The Required Number ofJurors

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Recommended CitationSixth Amendment--The Required Number of Jurors, 69 J. Crim. L. & Criminology 516 (1978)

9901-4169/78/6904-0516502.00/00TtE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 69, No. 4Copyright @ 1978 by Northwestern Univenity School of Law 'rintedin .S.A.

SIXTH AMENDMENT-THE REQUIRED NUMBER OF JURORS

Ballew v. Georgia, 435 U.S. 223 (1978).

In Ballew v. Georgia,' the Supreme Court held

that a state criminal trial by a jury of only fivepersons deprived the accused of the right to trialby jury guaranteed by the sixth and fourteenthamendments. The Court found no overriding stateinterest sufficient to offset the threat to constitu-

tional guarantees that would result from a reduc-tion injury size from six to five. Ballew thus estab-lishes that a constitutionally adequate state crimi-nal trial jury can be composed of no fewer than sixmembers.

I

In 1974, Claude Ballew, manager of the ParisArt Adult Theater in Atlanta, Georgia, was ar-rested and charged in a two-count misdemeanoraccusation with violating Georgia's obscenity stat-ute2 by showing the film "Behind the Green Door"on two separate occasions? Ballew was tried in theCriminal Court of Fulton County.4 After a jury offive members had been selected and sworn, 5'Ballew

moved to impanel a jury of twelve persons. He

I435 U.S. 223 (1978). Justice Blackmun wrote the

opinion for the Court. Justice Stevens filed a concurringstatement. Justice White concurred in the judgment.Justice Powell filed an opinion concurring in the judg-ment in which he wasjoined by ChiefJustice Burger andJustice Rehnquist. Justice Brennan, Justice Stewart andJustice Marshall concurred in the holding but disagreedthat the petitioner should be subjected to a new trial.

2 Ballew was charged with "distributing obscene ma-terials in violation of Georgia Code Section 26-2101 inthat the said accused did, knowing the obscene naturethereof, exhibit a motion picture film entitled 'Behindthe Green Door' that contained obscene and indecentscenes .... " 435 U.S. at 225.

3 The two count misdemeanor charge was the result oftwo showings of different prints of the film.

4 On January 2, 1977, the Criminal Court of FultonCounty was merged with the Civil Court of FultonCounty and is now known as the State Court of FultonCounty. 1976 Ga. Laws, vol. 2, No. 1004, p. 3023.

5 The Criminal Court of Fulton County tried misde-meanor cases before juries of five persons persuant to GA.CONsT. art. 6, § 16, 1. codified as GA. CoDE §2.5101(1973), and to 1890-1891 Ga. Laws, vol. 2, No. 278, pp.937-38, and 1935 Ga. Laws, No. 38, p. 498. 1890-1891Ga. Laws, pp. 937-38, states in part:

The proceedings [in the Criminal Court of Atlanta]after information or accusation, shall conform to

contended that in an obscenity trial, a jury of fivewas constitutionally inadequate to assess the con-temporary standards of the community, and thatthe sixth and fourteenth amendments to the UnitedStates Constitution6 required a jury of at least sixmembers in criminal trials. The motion was over-ruled and the trial proceeded before the five mem-ber jury which returned a verdict of guilty on eachcount.7 After the couzt denied an amended motionfor a new trial," Ballew appealed to the Court of

the rules governing like proceedings in the SuperiorCourts, except that the jury in said Court, shallconsist of five, to be stricken alternately by thedefendant and State from a panel of twelve.

Effective March 24, 1976, the number of jurors in theCriminal Court of Fulton County was changed from fiveto six. 1976 Ga. Laws, vol. 2, No. 1003, p. 3019.

Regardless of its size, a Georgiajury in a criminal trialmust reach a unanimous verdict in order to convict. SeeBall v. State, 9 Ga. App. 162, 70 S.E. 888, 889 (1911).

' U.S. CONST. amend. VI states that:In all criminal prosecutions, the accused shall enjoythe right to a speedy and public trial, by an impar-tial jury of the State and district wherein the crimeshall have been committed, which district shall havebeen previously ascertained by law, and to be in-formed of the nature and cause of the accusation;to be confronted with the witnesses against him; tohave compulsory process for obtaining witnesses inhis favor, and to have the assistance of Counsel forhis defense.

The provisions of the sixth amendment as to trial by juryhave been made applicable to the states through thefourteenth amendment. Duncan v. Louisiana, 391 U.S.145 (1968).U.S. CONST. amend. XIV states, in pertinent part:

"nor shall any state deprive any person of life,liberty or property without due process of law."

U.S. CONsr. art. III, § 2, cl. 3 provides that:The trial of all crimes, except in .cases of Impeach-ment, shall be by jury; and such trial shall be heldin the State where the said crimes shall have beencommitted; but when not committed within anyState, the trial shall be at such Place or Places asthe Congress may by Law have directed.7 Ballew was sentenced to one year imprisonment on

each count and fined $1,000 on each count, the sentencesto run concurrently and to be suspended on payment ofthe fines. 435 U.S. at 227.

8 In his amended motion for a new trial, Ballew arguedthat the films were illegally seized under a defectivewarrant; that the obscenity statute violated the first,fourth, fifth, sixth and fourteenth amendments of theUnited States Constitution; that the double conviction

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Appeals of the State of Georgia9 where he chal-lenged his conviction on the grounds, inter alia, thatthe use of the five member jury deprived him ofhis sixth and fourteenth amendment right to ajurytrial.

The court of appeals 0 rejected the contentionthat the five member jury was constitutionallyinsufficient.' The court noted that the UnitedStates Supreme Court had not fixed a minimumnumber of jurors necessary for a constitutionallysufficient jury, but had only ruled that a six mem-ber jury was adequate and above the minimum.12

The appellate court relied on Sanders v. State13 inwhich it had been said that, absent a holding bythe United States Supreme Court that a five mem-ber jury was constitutionally inadequate, it wouldapprove the five person jury prescribed by theGeorgia Constitution. The court also relied onMcIntyre v. State4 which, without elaboration, foundthat the Georgia statutes pertaining to jury opera-tion were constitutional. The Supreme Court ofGeorgia denied certiorari.

In his petition for certiorari to the United StatesSupreme Court, Ballew again challenged the con-stitutionality of the five person jury 5 and the Courtgranted certiorari. 16 The Supreme Court reversedand remanded on the ground that Ballew's trialbefore ajury of only five persons had deprived himof his right to trial by jury guaranteed by the sixthand fourteenth amendments.

7

had placed him in double jeopardy; that the evidencewas insufficient to suppbrt the verdicts; that the trialcourt erroneously excluded testimony of a defense expertwitness; and that the court's instructions on scienterimproperly shifted the burden of proof to the defense.435 U.S. at 227 n.6.

9 Ballew v. State, 138 Ga. App. 530, 227 S.E.2d 65(1976).

0id at 535-36, 227 S.E.2d at 69 (1976).11 The court of appeals also rejected petitioner's other

contentions. It reviewed the film and found it to be "hardcore pornography" and "obscene as a matter of consti-tutional law and fact"; it found that the evidence wassufficient; that the jury instructions correctly explainedthe standard of scienter; and that there was no error inthe issuance of the warrants or in the two separateconvictions. Id at 533-34, 227 S.E.2d at 67-69.

12 Williams v. Florida, 399 U.S. 78 (1970).13234 Ga. 586, 216 S.E.2d 838 (1975), cert. denied, 424

U.S. 93 1.'4 190 Ga. 872, 11 S.E.2d 5 (1940).15 He also challenged the constitutional sufficiency of

the jury instructions on scienter and obscenity vel non.'6429 U.S. 1071 (1977).17 Since the Court held that the five member jury did

not satisfy the jury trial guarantee of the sixth amend-

Two prior decisions established the foundationfor Ballew. In Duncan v. Louisiana,'8 the Court heldthat the due process clause of the fourteenthamendment incorporated' 9 the sixth amendment'sright to trial byjury and made it applicable againstthe states. The Court's interpretation of the pur-pose of the sixth amendment was adopted in sub-sequent cases which defined the constitutionallyrequired features of jury trial. Two years afterDuncan, and eight years before Ballew, the Courtheld, in Williams v. Florida,2° that a six member jurywas constitutionally sufficient to meet the require-ments of trial by jury in state criminal cases. Inreaching its conclusion, the Williams Court firstdescribed the way in which ajury must function tofulfill its purpose. Then, applying this functionalanalysis, 2' it defined the features of ajury requiredby the Constitution as those necessary for the juryto serve its purpose. This analysis enabled theCourt to construct the test of constitutionally suf-ficient jury size which it applied in Williams andagain in Ballew.

In Ballew, the Court was confronted with anissue that it had avoided in Williams: whether afurther reduction in the size of state criminal trialjuries was constitutionally permissible or whethersuch a reduction would impair the functioning ofthe jury to a significant degree.22 Writing for theCourt, Justice Blackmuns2 reiterated that the pur-pose of a jury trial was to provide a safeguardagainst governmental oppression by permitting the"participation of the community in determinationsof guilt and by the application of the commonsense of laymen ... ." The Court then adoptedthe Williams test and stated that the Constitutioncompelled a jury of sufficient size "to promotegroup deliberation, to insulate members from out-side intimidation, and to provide a representativecross-section of the community.' 25

ment as applied to the states through the fourteenthamendment, it did not reach the other issues. JusticesBrennan, Stewart and Marshall, while concurring in themajority opinion, disagreed that Ballew could be sub-jected to a new trial on the grounds that the Georgiaobscenity statute was overbroad and therefore faciallyunconstitutional. 435 U.S. 228, 246 (1978).

18 391 U.S. 145 (1968)." The concept of incorporation is discussed in Section

II inira.399 U.S. 78 (1970).

2' Functional analysis is discussed in Section II infra.22 435 U.S. at 231.23 See note 1 supra.24 435 U.S. at 229.2 Id. at 230 (citing Williams v. Fla., 379 U.S. 78, 100.

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The Court acknowledged that in finding sixmember juries constitutionally sufficient in Wil-liams, it had presumed that reduction in jury sizewould not impair jury function or effect the accu-racy or consistency ofjury verdicts. It then devoteda substantial portion of its opinion to an analysisof a body of data developed since Williams26 whichcasts doubt on the accuracy, reliability and consis-tency of results achieved by smaller juries. Basedon this analysis the Court concluded that a furtherreduction in jury size would impair, to a constitu-tional degree, the functioning of the jury.

The empirical data on which the Ballew Courtrelied indicated that "smaller juries are less likelyto foster effective group deliberation ... [which

leads at some point] to inaccurate fact finding andincorrect application of the common sense of thecommunity ... ,,27 The data showed a significantcorrelation between decrease in group size anddecrease in ability to make the critical contribu-tions necessary for problem solving.as "[M]emoryis important for accurate jury deliberations" andfewer jury members meant less input about piecesof evidence or argument.' The studies also indi-cated that group size correlated positively with theability to overcome individual biases and reachobjective results which accurately applied the com-mon sense of the community to the facts of a case.Moreover, the variation in verdicts reached bysmaller juries was likely to be detrimental to thedefense 3' because six member panels were less thanhalf as likely as twelve member panels to result inhung juries. Significantly fewer minority view-points would be represented on six member juriesand the likelihood of a minority opinion beingshared by two jurors, thereby increasing the chancethat the minority would adhere to its position andcause a hung jury, decreased almost 70% on a sixmember jury.2 The Court agreed that smallerjuries were also less likely to 'represent minoritygroups, thereby reducing meaningful communityparticipation.33 Retreating from its position in Wil-liams that six person juries adequately representeda cross-section of the community, the Court now

2435 U.S. at 231 n.10.27Id. at 232.2 Id. at 233 (citing Faust, Group. Versus Individual Problem

Solving, 59J. AB. & Soc. PsYcH. 68, 71 (1959)).435 U.S. at 233.

30 Id. (citing, among others, Saks, Ignorance of Science IsNo Excuse, 10 TRIAL 18, 77 (Nov.-Dec. 1974)).

3' 435 U.S. at 236.321d.33id.

found that the chance for representation dimin-ished with a decrease in size from twelve to six andconcluded that further reduction in size wouldmake it even more difficult to achieve representa-tion.

The Court cited articles critical of the researchmethodology of studies which had concluded thatthere was only an insignificant difference in theverdicts reached by juries of six and twelve." Italso reasoned that even if different sized juriesdisagreed in only a small percentage of cases, thatpercentage would translate into a large number ofcases nationwide. Furthermore, disagreement onverdicts is more frequent in close cases, the verycases in which it is of the utmost importance tohave a properly functioning jury to insure accuratefactfinding

3 5

The Court acknowledged that the recent studiesraised "substantial doubt about the reliability andappropriate representation of panels smaller thansix."' It held that any further reduction in jurysize that "promotes inaccurate and possibly biaseddecisionmaking, that causes untoward differencesin verdicts, and that prevents juries from trulyrepresenting their communities, attains constitu-tional significance." 37 The Court recognized thatthe data did not distinguish between the perform-ance of six and five member juries20 Nevertheless,the Court created just such a distinction. While itheld that five member juries in state criminal trialswere constitutionally insufficient, it explicitly reaf-firmed the previous holding in Williams that sixmember juries were adequate and avoided reas-sessing that holding in light of the data relied onin Ballew.

39

The Court dismissed the contention of the Statethat Johnson v. Louisiana4° had approved a fiveperson jury. It responded that Johnson had merelyconsidered the narrow question of whether requir-ing only nine members out of a twelve memberjury to agree in order to convict in a felony casewas a denial of equal protection when unanimitywas required of five member panels used in mis-demeanor trials. The Court had found that theclassification was not invidious and not a violation

34Id. at 237.' Id. at 239.3 id.3 Id.

39 Id.'" 406 U.S. 356.

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of equal protection. However, it did not rule on theconstitutionality of the five member jury.4'

The State argued that because the constitution-ality of six member juries assessing felony chargeshad been affirmed, the use of five member panelsfor misdemeanors should be adequate. Rejectingthis reasoning, the Court answered that neither thepurpose nor function of a jury varied with theimportance of a crime.42 Georgia also claimed thatthe retention of the unanimity requirement shouldpreserve the constitutionality of the five memberjury. The Court responded that reaching a unani-mous verdict did not insure that the jury hadengaged in meaningful deliberation and had cor-rectly recollected the evidence and arguments.Therefore, even a unanimous five person jurywould not necessarily serve the defendant's interestin having the commonsensejudgement of his peersapplied to his case.43

The Court also rejected the argument that a fivemember jury would adequately represent the com-munity if it had been selected without arbitrarilyexcluding a particular class. Again relying on thedata, the Court expressed doubt about the abilityof small juries, even if fairly selected, to representminority groups and opinions as fully or frequentlyas larger panels, and to apply the commonsensejudgement of the community consistently." Fi-nally, the Court dismissed data cited by the Stateto substantiate the position that a decrease in jurysize would not significantly affect jury verdicts.The Court believed that the conclusions of thestudies had been misinterpreted by the State andthat methodological research problems made thereliability of the studies questionable.45

The Court then considered whether any signifi-cant state interests existed which 4ould offset thethreat to the Constitutional guarantee of trial byjury created by a reduction injury size from six tofive. It found that there were hone. Responding tothe argument that the state's interest in saving timeand money justified smaller juries, the Court reliedon a study which demonstrated that impanellingsmaller juries did not significantly decrease totaltrial time.46 It also emphasized that only minimal

41 435 U.S. at 240.2 Only for truly petty offenses is a defendant not

entitled to trial by jury. Baldwin v. New York, 399 U.S.66 (1970).

43435 U.S. at 241."d. at 241-42.5 Id. at 242-43

4 "435 U.S. at 244 n.39 (citing Pabst, Statistical Studies

financial savings would result from reducing juriesfrom six to five members and concluded that theseminimal savings did not justify a further reductionin jury size. Thus, the Court held that trial oncriminal charges before'a five member jury de-prived the petitioner of the right to jury trialguaranteed by the sixth and fourteenth amend-ments.

Justice Powell, joined by Chief Justice Burgerand Justice Rehnquist, in a concurring opinion,agreed that five member juries raised problems offundamental fairness. Acknowledging that a linebetween five and six was difficult to justify, Powelltook the position that a line had to be drawnsomewhere to preserve the substance of jury trial.He also emphasized that full incorporation, of thesixth amendment was unwise, that the features offederal and state criminal jury trials need not beidentical, and that the guideline should always bewhether the state procedure was fundamentallyfair. Finally, Powell criticized the majority's reli-ance on statistical data obtained by studies whichhe believed had not been scientifically tested withinthe framework of the adversary.system.

4 7

II

To understand the reasoning of the Court inholding that five persons do not comprise a consti-tu'tionally adequate jury, it is helpful to examineits reasoning in the past in defining other consti-tutional requirements of trial by jury. In grapplingwith the interpretation of the sixth amendmentand the sixth as incorporated by the tourteenthamendment, the Court has employed two modesof analysis. In early cases, it adopted an historicalanalysis to ascertain the dimensions and compo-nents of trial by jury. This approach requiredexamining the traditional elements of the commonlaw jury, and deciding which of those elements theFramers intended to include in the sixth amend-ment guarantee. More recently, the Court has em-ployed a functional analysis to determine the com-ponents of a constitutional jury trial and has re-pudiated what it had once presumed to be thedictates of history and tradition. Functional anal-ysis involves defining the purpose of the right totrial by jury, determining how ajury must functionto fulfill that purpose, and deciding which substan-tive and procedural features enable ajury to func-

of the Costs of Six-Man Versus Twelve-Man Juries, 14 WM. &MARY L. Rav. 326 (1972)).

47 435 U.S. at 246.

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tion as it should. These features then, are requiredfor a consitutionally sufficient trial by jury.

Taking an historical approach, the Court hadfound it easy to conclude that the sixth amendmentmandated a common law jury of twelve membersin federal criminal trials. In Thompson v. Utah,48 theCourt traced the existence of the twelve memberjury to the Magna Carta and the English commonlaw49 and reasoned that the sixth amendment re-quired ajury constituted as it was at common law.The Court noted:

It must consequently be taken that the word "jury"and the words "trial by jury" were placed in theConstitution of the United States with reference tothe meaning affixed to them in the law as it was inthis country and in England at the time of theadoption of that instrument ....- 'oIn Maxwell v. Dow' the Court found "no doubt"

that a commonlawjury composed of twelve personswas prescribed by the sixth amendment.5 2 Again,in Rasmussen v. United States,'s Justice Harlan wrotethat the constitutional requirement of trial by jurymeant "by the historical, common-law jury oftwelve persons."54 And, twenty-six years later in

48 170 U.S. 343 (1898).49 "The law of England hath afforded the best method

of trial, that is possible, ... namely, by a jury of twelvemen all concurring in the same judgment" Id. at 350(quoting I HALE'S P.C. 33).

170 U.S. at 350.5' 176 U.S. 581 (1900).52 Id. at 586. Maxwell held that the sixth amendment

guarantees were not limits on the powers of the statesand that the right to a trial by ajury of twelve as requiredby the sixth amendment was not a privilege and immu-nity protected by the fourteenth amendment.

The Fourteenth Amendment does not profess tosecure to all persons in the United States the benefitof the same laws and remedies. Great diversitiesmay exist in two states separated only by animaginery line. On one side of this line there maybe a right to a trial by jury, and on the other sideno such right.

Id. at 599.It appears to us that ... whether a trial in criminalcases not capital shall be by a jury composed ofeight instead of twelve jurors. ... [is] eminentlyproper to be determined by the citizens of eachState for themselves, and does not come within theclause of the amendment .... It is emphatically thecase of the people by their own organic law, provid-ing for their own affairs, and we are of the opinionthey are much better judges of what they ought tohave in these respects than anyone else can be.

Id. at 604.Maxwell was repudiated in Duncan v. Louisiana, 391

U.S. 145 (1968), which held the sixth amendment rightto trial by jury applicable to the states through the dueprocess clause of the fourteenth amendment.

5 197 U.S. 516 (1905).54 Id. at 529 (Harlan, J., concurring).

Patton v. United States,s5 relying on history and tra-dition, the Court held that a "constitutional jurymeans twelve men as though that number hadbeen specifically named." 6

More complex problems arose when the Courtapplied the sixth amendment to the states throughthe due process guarantee of the fourteenth amend-ment. In Duncan v. Louisiana,5 7 the Court held thatthe fourteenth amendment's due process guaranteeincorporated the sixth amendment's right to trialby jury and made it enforceable against the states.In reaching its conclusion, the Duncan Court usedboth historical and functional analysis. First, itoutlined the history of trial by jury in criminalcases and found "impressive support" for consid-ering the right fundamental to our system of jus-tice.s

The Court then analyzed the purpose of trial byjury. It concluded thit the framers had intendedto protect against government oppression and ar-bitrary action by thejudiciary. The option of beingjudged by peers who would apply the commonsense of the community to the facts of the caseprovided "an inestimable safeguard against thecorrupt or overzealous prosecutor and against thecompliant, biased or eccentric judge."5 9 Given thispurpose, the Court had no difficulty finding againthat the general grant of jury trial for seriousoffenses6° was a fundamental right which must berespected by the states. It held, therefore, that thefourteenth amendment guaranteed the right to ajury trial in all criminal cases which, if tried infederal court, would come within the sixth amend-ment guarantee.

61

Duncan is important for several reasons. First, ineach subsequent case in this area, the Court hasadopted Duncan's definition of the purpose of jurytrial.62 Second, in concurring and dissenting opin-

5 281 U.S. 276 (1930).56Id. at 292.57 391 U.S. 145 (1968).Sid. at 153.59 Id. at 156.60 The Court found that a crime carrying a possible

maximum penalty of two years was a serious crimesubjecting the trial to the sixth amendment guarantees.

61 In Baldwin v. New York, 399 U.S. 66 (1970), theCourt held that the fourteenth amendment right to trialby jury attaches where the sentence could exceed sixmonths imprisonment. Since both the federal system andthe vast majority of the states allowed jury trial for crimespunishable by imprisonment for longer than six months,the Court was willing to adopt this "near uniform judg-ment of the nation" as the objective criterion for definingserious crimes. The Court rejected the argument that adistinction could be made between felony and misde-meanor trials.

62 See, e.g., notes 74-90 and accompanying text infra

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ions, the Justices argued the merits of selectiveincorporation and Federalism and assumed posi-tiors which have been represented reasonably con-sistently in cases specifying requirements of a con-stitutionally adequate state criminal jury trial.63

Selective incorporation is the absorbtion into thefourteenth amendment of selected Bill of Rightsprovisions which the Court finds are mandated bythe guarantee of due process of law. These provi-sions, once incorporated in the fourteenth amend-ment, are then enforceable against the states. Theincorporated guarantees are often those which theCourt determines are implicit in the concept ofordered liberty or fundamental to our system ofjustice.4 Several positions on selective incorpora-tion were articulated in Duncan. Some Justicesasserted that a Bill of Rights guarantee, once ab-sorbed into the fourteenth amendment, imposedidentical standards on the state and federal govern-ment so that the same features were required toprotect individual rights against state as againstfederal encroachment. This position was repre-sented by Justices Black and Douglas in a concur-ring opinion in Duncan.6 They agreed with themajority that th; fourteenth amendment absorbedthe sixth amendment guarantee of trial by jury.Furthermore, they contended, state courts shouldapply the same standards for the Bill of Rights asare applied in federal courts. Rejecting the argu-ment that this would interfere with state experi-mentation with criminal justice systems, they rea-soned that the states should not be allowed toexperiment with protections afforded by the Bill ofRights

6

A second position was that a Bill of Rightsguarantee, once incorporated, might have differentmeanings and requirements as applied to the stateand federal government; that the substance of aparticular guarantee could be made applicable tothe states without imposing all of the requirements

(discussing Williams v. Florida, 399 U.S. 78 (1970)), andnotes 91-98 and accompanying text infia (discussingApodaca v. Oregon, 406 U.S. 404 (1972)).

'The Court has frequently used the incorporationdoctrine to make selected Bill of Rights guarantees ap-plicable to the states. See, e.g., Malloy v. Hogan, 378 U.S.1 (1964) (applying the fifth amendment right to be freeof compelled self-incrimination); Gideon v. Wainright,372 US. 335 (1963) (applying the sixth amendment rightto counsel); and Mapp v. Ohio, 367 U.S. 643 (1961)(applying the fourth amendment right to be free fromunreasonable searches and seizures and to have illegallyseized evidence excluded from criminal trials).

" 391 US. at 148, 149 & n-14.'srd. at 162 (Black and Douglas, JJ., concurring).6Id. at 170.

applicable within the federal system. This positionwas articulated by Justice Fortas, who concurredin the holding in Duncan, but who objected to theimplication of the majority opinion that incorpo-rating the sixth amendment required that all of theancillary rules which the Court had developedincidentsl to the right to trial by jury must auto-matically be applied to the states.67 Arguingagainst "slavish adherence" to the incorporationtheory' Fortas asserted that even if the right tojury trial was fundamental and applicable againstthe states, the particulars accorded that right neednot be uniform. In keeping with the principles offederalism, states should be given maximum lati-tude to experiment with variations that would notimpair the purpose of jury trial. Fortas claimedthat the substance of the sixth amendment guar-antee could be absorbed by the fourteenth amend-ment without all of its "bag and baggage, howeversecurely affixed they may be by law and precedentto federal proceedings."'69

A third position was articulated by Justices whoopposed incorporation altogether. These Justicesargued that the Court should consider each case inlight of whether the state procedure involved wasfundamentally fair and thus complied with thefourteenth amendment due process guarantees.This position was advocated by Justice Harlan inhis dissent in Duncan."0 Harlan argued that dueprocess did not require imposing federal rules onthe states except when essential to fundamentalfairness. Because he did not believe that trial byjury was the only fair means of resolving issues offact, he would have had the Court consider, ineach case, whether the state trial process was a fairone. Harlan's objection to incorporating the sixthamendment was that it would require imposing onthe states only one means of trying criminal cases,thus putting the states in a federal constitutional"straightjacket." 7' This, Harlan argued, was incon-sistent -with the principles of federalism, whichcommand that the states be permitted to controlthe "machinery of criminal justice within theirborders "' and have maximum room to experiment

67Justice Fortas' concurrence in Duncan can be foundafter Bloom v. Illinois, 391 U.S. 211 (1968).

'5391 U.S. at 213.6rd. Justice Fortas specifically mentioned that the

Duncan decision should not be presumed to impose thefederal requirements ofjury unanimity orjury size on thestates since it was possible to conclude that these featuresof federal jury trials were not fundamental and were notessential to due process of law.

'Justie Stewart joined Justice Harlan in dissent.7'39I US. at 176.'I2d at 172.

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as long as they provide machinery which is fun-damentally fair. 73

The Justices maintained these positions on in-corporation in Williams v. Florida,74 the case inwhich the Court laid the foundation for its decisionin Ballew. In Williams, the Court held that a sixmemberjury was constitutionally adequate to meetthe requirements of trial by jury in state criminaltrials. The majority purportedly relied on Duncan'sincorporation of the sixth amendment into thefourteenth via the due process clause and thensquarely rejected earlier decisions in which it hadheld that twelve jurors were required for a consti-tutional trial by jury. Justice White75 delivered theopinion in which the Court repudiated history andtradition as a mandate for establishing jury size.The Court examined the history of the jury systemand asserted that a panel of twelve members was"without significance," the result of "historical ac-cident, unrelated to the great purposes which gaverise to the jury in the first place, an accidentalfeature" 76 which, despite precedent, ought not tobe "immutably codified into our constitution., 77

"To read the Sixth Amendment as forever codify-ing a feature so incidental to the purpose of theAmendment is to ascribe blind formalism to theFramers for which there is little evidence in thehistory or language of the Constitution.'

78

The Court asserted that the intent of the Framerssupported its position and cast "doubt on the easyassumption ... that if a given feature existed in ajury at common law in 1789, then it was necessarilypreserved in the Constitution." 79 Concluding thatthe Framers had no explicit intent to equate the

"The Court adopted a functional approach in pro-hibiting discrimination in the selection of juries. Carterv. Jury Commission, 396 U.S. 320 (1970) and Smith v.Texas, 311 U.S. 128 (1940). The Court reasoned that inorder to fulfill its purpose as defined in Duncan, the jurymust be a body truly representative of the communityThe principle that to function properly a jury mustreasonably reflect a cross section of the community wasapplied later when the Court assessed whether juriessmaller than 12 could function so as to fulfill theirconstitutional purpose.

74 399 U.S. 78 (1970).7s Justice Blackmun did not take part in considering

this case. ChiefJustice Burger, Justice Harlan andJusticeStewart, and Justice Black and Justice Douglas wroteseparate concurring opinions. Justice Marshall dissentedon the issue ofjury size.

76 399 U.S. at 89.7Id. at 90.78 id.79 Id. at 92.

constitutional and commonlaw characteristics ofthe jury, the Court was free to look at other thanhistorical considerations. White's majority opinionclearly reflected the assumption that functionalanalysis was a more suitable approach to the ques-tion of jury size, and that the relevant issue oughtto be what size panel was necessary in order for thejury to fulfill its constitutional purpose.

Establishing the foundation for a functionalanalysis, the Williams Court adopted the view ex-pressed in Duncan that the purpose of trial by jurywas to prevent oppression by the government. Thejury achieved its purpose by providing the com-mon-sense judgement of a group of laymen throughthe "community participation and shared respon-sibility that results from that group's determinationof guilt or innocence." Concluding that perform-ance of this jury function was not contingent onthe fact that the jury consisted of twelve members,the Court formulated a test of constitutionallyacceptable size-a size which would permit thejury to perform its function. Ajury should be largeenough to promote "group deliberation, free fromoutside attempts at intimidation, and to provide afair possibility for obtaining a representative cross-section of the community."'" The Court madecasual reference to a few social science "experi-ments" which ostensibly supported the positionthat performance of these functions would be un-affected by decreasing jury size from twelve to six.It asserted that there would be no discernible dif-ference in the results reached by six and twelvemember panels, that the reliability of verdictswould not be diminished, that a reduction in sizewould not threaten the exclusion of any class fromrepresentation,s2 and that the decrease would favorneither the defense nor the prosecution as therewould be no significant difference in the numberof "hungjuries." Believing that a reduction injurysize would lead to no ill effects, the Court con-cluded that it was desireable to leave decisionsabout jury size to state legislatures "unrestrainedby an interpretation of the Sixth Amendment thatwould forever dictate the precise number that canconstitute a jury.

',,s

80Id. at 100..1 Id.2 The Court reasoned that there was no guarantee

that every opinion in the community would be repre-sented even on the 12 memberjury, so that as long as aclass was not arbitrarily excluded the decrease injury sizeshould not create concern about representation.

m 399 U.S. at 103.

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Justices Black and Douglas concurred with thisportion of the Williams opinion.8s They maintainedthat the decision posed no conflict with their pre-vious position that specific provisions of the Bill ofRights which had been incorporated by the four-teenth amendment applied to state courts the samestandards as applied to federal courts. Rather, priordecisions which had held that the sixth amendmentrequired a jury of twelve members were based onimproper constitutional interpretation which wasnow being reexamined and rejected. Therefore, theWilliams decision did not dilute the sixth amend-ment guarantees because the sixth amendment wasbeing reinterpreted. The import of this opinion isthat the twelve member jury may be required byfederal rules, but is not mandated by the Consti-tution.85

Justice Harlan also concurred in the Court'sholding but took the opportunity to attack theincorporation doctrine and reiterate the principlesunderlying his dissent in Duncan.86 He argued thatthe Court in Williams, by refusing to apply thetraditional sixth amendment requirements to stateproceedings, had compromised the incorporationdoctrine. He considered this an illustration of theproblem inherent in' incorporation: either stateswith differing law enforcement problems wouldfind themselves encumbered by requirements de-veloped within the context of the federal system,or the Court would have to relax federal standards.He anticipated that this alternative would diluteBill of Rights guarantees applicable against thefederal government so that the states would haveleeway in establishing criminal justice systemssuited to their individual needs. Harlan saw Wil-liams as the Court's effort to temper its position onincorporation in order to "wriggle free of [the]straightjacket"87 which restricted state diversity.He viewed it as evidence of the discomfort of theCourt with the tension between the "jurispruden-tial consequences wrought by incorporation ...and the counter-pulls of the situation in Williamswhich presents the prospect of invalidating thecommon practice in the states of providing lessthan a 12-member jury for the trials of misde-meanor cases. ' s

1 Id at 106 (Black and Douglas; J.J., concurring inpart and dissenting in part).

"Id. at 107.86 Id. at 117 (larlan, J., concurring).

8Id. at 130." Id. at 129.

He further stated that:Today's decisions demonstrate a constitutional schiz-ophrenia born of the need to cope with nationaldiversity under the constraints of the incorporationdoctrine ... . [1In Williams the Court seeks out aminimum standard to avoid causing disruption innumerous instances even though, a priori, incorpo-ration would surely require a jury of 12.sJustice Marshall dissented on the ground that

the fourteenth amendment guaranteed to statedefendants the same trial by jury as guaranteed tofederal defendants by the sixth amendment whichthe Court had long ago established required ajuryof twelve.9°

The functional analysis employed in Williamswas adopted in subsequent cases in which theCourt held that state criminal trial juries were notrequired to reach a unanimous verdict in order toconvict. In Apodaca v. Oregon,9 1 a five member ma-jority92 held that conviction by ten members out of

89 Id. at 136. Justice Stewart, dissenting, agreed withHarlan, taking issue with the incorporation doctrinewhich he felt compelled the Court "either to imposeintolerable restrictions upon the constitutional sover-eignty of the individual states in the administration oftheir own criminal law or else intolerably to relax theexplicit restrictions that the Framers actually did putupon the Federal government in the administration ofcriminal justice." 399 U.S. at 143 (Stewart, J., concur-ring).

90 399 U.S. at 117 (Marshal, J., dissenting).Following Williams, the Court approved Federal juries

of six in civil trials in Colgrove v. Battin, 413 U.S. 149(1973), holding that a six member jury comported withSeventh Amendment requirements. The case is not rele-vant to this discussion since it dealt with the seventhrather than the sixth amendment, and the history andpurpose of the seventh amendment is substantially dif-ferent from that of the sixth. However, it is interesting tonote that in reaching its conclusion, the Court engagedin a detailed historical analysis and then turned to func-tional analysis to determine whether jury performance infulfilling the purpose of trial by jury in civil cases was afunction of size. Justice Marshall and Stewart, in dissent,criticized the Court's use of functional analysis and ar-gued "[tjhe line must be drawn somewhere, and thedifference between drawing it in light of history anddrawing it on an ad hoc basis is, ultimately, the differencebetween interpreting a Constitution and making it up asone goes along." Id. at 182 (Marshall, J., dissenting).They were equally critical of the Court's rejection ofhistorical mandate in Williams. This perspective, thatwhen arbitrary lines must be drawn by the Court historyand tradition may be the best guides, is examined atnotes 107-12 and accompanying text infra.

9' 406 U.S. 404 (1972).92justice White announced the opinion of the Court

in which Chief Justice Burger, Justice Blackmun andJustice Rehnquist joined. Justice Powell wrote a separate

NUMBER OF JURORS

twelve in a state criminal trial did not violate theright to trial by jury guaranteed by the sixthamendment as applicable to the states through thefourteenth. After reexamining the history of thesixth amendment the Court concluded that theintent of the framers regarding the requirement of

jury unanimity was ambiguous. The Court thenutilized a functional analysis and concluded thatrequiring unanimity did not materially contributeto the ability of the jury to apply the common-sense judgement of the community. Moreover, the

Court asserted that the ability of the jury to rep-resent a cross section of the community and "delib-erate, free from outside attempts at intimidation"

' gs

would not be impaired by permitting a verdict of

ten to tw6. Thus, the Court concluded that thefunctions of the jury would not be disturbed byallowing non-unanimous juries to convict.9

Justice Powell's concurrence in Apodaca illus-

trates both the functional approach and the incor-poration position advocated by Justice Fortas inDuncan.95 Powell felt that the "safeguarding" func-tion of the jury was adequately preserved by a ninevote majority and found "no reason to believe, onthe basis of experience.., that a unanimous deci-sion of 12 jurors is more likely to serve the high

purpose ofjury trial ..... ,96 Moreover, in "definingthe elements of the right to jury trial there is nosound basis for interpreting the FourteenthAmendment to require blind adherence by the

opinion concurring in the judgment. Justices Douglas,Brennan, Marshall and Stewart each wrote separatedissenting opinions.93 406 U.S. at 413.94johnson v. Louisiana, 406 U.S. 356 (1972) was de-

cided by the Court on the same day as Apodaca. The issuein Johnson was the constitutionality of a conviction by ajury vote of nine to three. BecauseJohnson was tried bythe lower court before the Supreme Court reached itsdecision in Duncan, the question was whether the four-teenth amendment due process guarantee required aunanimous verdict, whereas in Apodaca the Court wasconsidering whether the sixth amendment as incorpo-rated into the fourteenth required jury unanimity. TheCourt divided infJohnson exactly as it did in Apodaca. Afive justice majority held that jury unanimity was notrequired by the due process clause. The majority con-cluded that neither the accuracy nor integrity of a guiltyverdict was undermined by three dissenting votes on atwelve member jury and therefore unanimity was notnecessary in order that a trial be fundamentally fair.

One of the significant issues in both Apodaca andJohnson was how a defendant could be found guiltybeyond a reasonable doubt by a jury when two or threejurors remained convinced of his innocence. The issue,however, is not relevant to this discussion.

95 justice Powell's opinion appears as his concurrencein Johnson v. Louisiana, 406 U.S. 356, 366 (1972).

9Id. at 374.

States to all the details of the federal Sixth Amend-ment standards."9' Therefore, states should begiven the freedom to experiment with adjudicatory

processes. 98

III

The decisions of the Court in Williams and Apo-daca generated a substantial body of literature crit-ical of a decrease in jury size from twelve to six.The reliance by the Court on functional analysisseemed to necessitate scientific appraisal of its as-sumptions about the operational impact of jurysize. Numerous studies sought to determine if theability of a jury to resolve questions of guilt reli-ably, consistently and accurately was impaired bya decrease in size.99 Applying the Williams test, ifthe ability of the group to deliberate, to be freefrom outside intimidation, or to represent a faircross-section of the community, was negatively af-fected, then the smaller jury would not fulfill itsconstitutional purpose as well as the larger jury.Studies demonstrating such impairment wouldsuggest that Williams rested on incorrect analysisand its holding would be threatened.

In Ballew the Court acknowledged that the re-cent studies raised substantial doubts about the"wisdom and constitutionality of a reduction [injury size] below six."' But the Court could notidentify, within those studies, a finite line belowwhich the number of jurors would not be able to

97 Id. at 375.

98 Justice Douglas, in dissent, also adopted a functionalperspective, but argued that a less than unanimous re-quirement diminished the reliability of ajury verdict andresulted in fewer hung juries thereby favoring the State.The diminution in jury size approved in Williams, on theother hand, was neither more nor less advantageous tothe state. 406 U.S. 389-90 (Douglas, J., dissenting). Jus-tice Douglas' dissent in Apodaca appears in Johnson v.Louisiana, id. at 358.

Justices Marshall, Brennan, and Stewart, dissenting inJohnson and Apodaca also argued that the sixth amendmenthad identical application against both the state andfederal governments. Marshall and Brennan argued thatthe requirement that juries be drawn from a cross sectionof the community would be negatively affected by allow-ing less than unanimous verdicts, since minority viewscould be ignored. 406 U.S. at 402 (Marshall and Brennan,JJ., dissenting.) Their reasoning is another example offunctional analysis. Marshall argued against functionalanalysis and asserted that history, the appropriate guide,compelled finding that unanimity was an essential fea-ture of a constitutional jury decision. Marshall fearedthat functional analysis had allowed the majority to stripaway many of the characteristic features once guaranteedby jury trial. 406 U.S. at 355 (Marshall and Brennan, J.J., dissenting).

99435 U.S. at 230, 231 n.12.'0 Id. at 232.

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function as required by Williams.10 1 Moreover, theCourt recognized that the studies consistently andoverwhelmingly found that twelve member juriesdid a significantly better job of decision makingthan six member panels, and that six memberjuries did not perform nearly as adequately infulfilling the functions specified in Williams. Sincethe data cast equal doubt on the ability of a juryof six and a jury of five to pass the Williams test, itis intriguing that the Court relied on the data inBallew to find five member juries inadequate whileleaving Williams, which held that six memberjurieswere constitutionally adequate, intact.

Apparently, at the time that Williams was de-cided, there was not a sufficiently large body ofevidence on the effect of jury size to overcome thepresumption that the states should have the powerto experiment and decide how large ajury must beto function adequately. The logic of Ballew, how-ever, rested on evidence which unquestionably es-tablished that, applying the Court's test, five is notlarge enough, and there is considerable doubtabout the wisdom of the Court's refusal to applythe same logic to a reconsideration of Williams. TheCourt's own logic in 'Ballew demonstrated thatWilliams rested on a faulty foundation.

Williams specified that reducing jury size wouldbe unconstitutional if smaller size impaired per-formance. Because the Court found in Ballew thata decrease in size from twelve to six produced morevaried verdicts, less accuracy, less reliability, anddiminished[ representativeness, and permittedfewer holders of minority opinions to prevail re-sulting in fewer hung juries, (in other words, thatsix and twelve member juries perform quite differ-ently), it could just as well have found that sixmemberjuries were as constitutionally inadequateas five member panels. If the proponents of smallerjuries in Williams had subjected the functioning ofthe six member jury to their own test to show thatchange in size would be unlikely to affect theaverage quality of jury justice, then they clearlywould not have prevailed'02 given the data onwhich the Court relied in Ballew. It is interestingthat the Court was so uninhibited by its own logic.The six member jury fails the Court's own test bythe Court's own reasoning-the correct applicationof the test would find six as unacceptable as five.

'o' The Court cited Nagel & Neef, Deductive Modeling toDeteine Optin Juy Size Required to Convict, 1975 WASH.

U.LQ. 933, for the proposition that optimum jury sizewas between six and eight but the Court does not purportto rely on this study to draw the line at six.

'2 Lempert, Uncovering 'Nondiscermible" Differences: Em-pbkria! Researrh and tLiJeay-Size Cases, 73 MicH. L. REv.643, 69 (1975).

There is little left of the Court's opinion inWilliams after its analysis in Ballew. If Williams isto stand, the burden should be on the Court tomake a meaningful distinction between the per-formance of six and five member panels and todemonstrate that ajury of six does not threaten theinterests that the sixth amendment was designedto protect.

One interpretation of Ballew is that it reflects theembarrassment of the Court at having relied on apremise which was so quickly and unequivocallyproven false' °3 Perhaps, then, Ballew is merely aneffort to minimize the damage already done. If so,it is curious that the Court felt compelled to reaf-firm Williams explicitly when it was only requiredto decide the narrow issue of the constitutionalityof the five member jury, a context in which it wasarguably inappropriate to overrule Williams. Pos-sibly the Court was trying to buy time and to giveitself breathing room before finding another Wil-liams on its docket.

The embarrassing position in which the Courtfound itself in Ballew resulted from its attempt toresolve the issue of jury size within the rubric offunctional analysis. It may be that it is simply notappropriate to use functional analysis to determineconstitutionally acceptable jury size. To say thatconstitutionally acceptable jury size is the size nec-essary to fulfill certain functions requires quanti-fying certain concepts which invariably resistquantification. How much representation isenough? How much group deliberation is enough?The impulse to rely on social science to provideanswers is irresistable-and that, of course, is whatthe Court has done. But this approach raises morequestions than it answers. Social science data andconclusions are subject to frequent change. Is itappropriate for constitutional interpretation to bebased on statistical studies, the conclusions ofwhich are certain to change as methodologies arerefined and new data is produced? How rapidlyought the law to shift to reflect the new realitiessocial science reveals? If the law is too much ahandservant of such data, then it will be in aconstant state of flux and create- the very uncer-tainties it is designed to circumvent.1° The resultsof relying on data are apparent in Williams andBallew: the studies which "supported" the premiseof Williams that a diminution in jury size would

1on Discussion with Frank Wiggins, formher Associate

Professor of Law, Northwestern University School ofLaw.

'04 Frank Wiggins, former Associate Professor of Law,

Northwestern University School of Law.

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NUMBER OF JURORS

not impair jury function were substantially dis-credited in the interim between Williams and Bat-lew.

Justice Powell, Chief Justice Burger and JusticeRehnquist, in their joint concurrence in Ballew,recognized the problem implicit in relying on socialscience data and criticized the majority's relianceon "numerology derived from statistical studies."10 5

It has been said that constitutional rights shouldnot rest on scientific demonstrations.' 6 Eventhough jury size is more a procedural than a sub-stantive right, the question remains: how shouldthe Court choose a number?

One can argue that history and tradition pro-duce a more certain standard than social sciencedata. Justice Harlan admonished the WilliamsCourt for "stripping off the livery of history fromthe jury trial.' ' 10 7 He argued that the Court hadnot produced an acceptable reason for disregardinghistory, a "wellspring of constitutional interpreta-tion,"'8 and continued:

The Court's elaboration of what is required [for aconstitutionally adequatejury] provides no standardand vexes the meaning of the right to ajury trial infederal courts, as well as state courts, by uncertainty.Can it be doubted that a unanimous jury of 12provides a greater safeguard than a majority vote ofsix? The uncertainty that will henceforth plague themeaning of trial by jury is itself a further sufficientreason for not hoisting the anchor to history.' 9

Even if twelve was an arbitrary number, an histor-ical accident, "history ... might have embodiedmore wisdom than the Court would allow."1' 0

Since one function of the jury is to represent thecommunity as broadly as possible and since thejury must remain a manageable size, conceivably,after centuries of trial and error, the common lawjury came to be fixed at twelve as a numbermaximizing these two goals."'

Nevertheless, since the Court has rejected themandates of history and tradition as an answer tothe question of constitutionally required jury size,and since there is no apparent reason why researchdata should be the standard for drawing the line

't5 435 U.S. at 246. (Powell, J., Burger, C. J., andRehnquist, J., concurring).

"06 Lempert, supra note 102, at 705.(r 399 U.S. at 122 (Harlan, J., concurring).1 uId. at 124.l Id. at 126.

"o Zeisel, . . . And Then There Were None: The DiminutionoftheJury, 38 U. COH. L. REV. 710, 712 (1971).". Id. at 712.

at five, is there anyjustification, except the Justices'own casual explanation that a line must be drawnsomewhere, for drawing the line between five andsix? One factor which should be reconsidered is theinterest of the state. In Ballew, the Court deter-mined that states use smaller juries to save timeand money. While the time saved was found to benegligible, and the dollars saved by providing ajury of five rather than six were minimal, the Courtrecognized that the financial benefits of a reductionfrom twelve to six could be substantial. Perhapsthe cost benefits to the state prevail when thereduction is from twelve to six , but not when it isfrom six to five.

Do Williams and Ballew reflect the current posi-tion of the majority of the Court on selectiveincorporation? The Court still, apparently, believesthat the fourteenth amendment has incorporatedthe sixth. Thus, it is unlikely that the Ballew Courtis adopting Harlan's position and rejecting incor-poration, although its analysis indicates that fivemember juries present problems of fundamentalfairness and violate the due process guarantee ofthe fourteenth amendment. The Court is, indeed,giving the states "wriggling room" to the point atwhich it believes the criminal justice system can nolonger be considered fair.

If Williams is actually a reinterpretation of themandates of the sixth amendment, then it is notclear that the majority of the Court has rejected anapproach which would bind state courts to thesame standards as federal courts. What seems mostlikely, however, is that the Ballew Court hasadopted the less intrusive incorporation approachadvocated previously by Justice Powell and JusticeFortas. Indeed, this is the position maintained inBallew by Justice Powell, Chief Justice Burger andJustice Rehnquist. They concurred in Ballew onthe ground that five member juries involve "gravequestions of fairness" 112 but emphazised that notevery feature of jury trial practice must be thesame in federal and state courts in order for thesubstance of the sixth amendment to be incorpo-rated and made applicable against the states. TheCourt seems to be saying that, in regard to trial byjury, the Constitution provides certain constraintson state activity, but that states are to be held toless strict judicial oversight than federal courts, inkeeping with the principles of federalism. The Con-

112 435 U.S. at 245 (Powell and Rehnquist, JJ., and

Burger, C. J., concurring).

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stitution will, apparently, tolerate experimentationdown to six, after which a trial is likely to violatethe guarantee of fundamental fairness. This expla-nation provides a rationale which more or lesspermits Ballew and Williams to coexist. The prob-lem is, however, that there is still no explanation ofwhy five is more fundamentally unfair than six,and the answer is not to be found in the data whichthe Ballew Court examined so thoroughly.

As yet unanswered is whether a non-unanimous

verdict by a jury 'of six in a state criminal trial isconstitutionally acceptable. A majority of theLouisiana Supreme Court recently held that nei-ther Ballew nor Williams forbids conviction by afive to one majority. 13 A question for the Court inthe future is likely to be whether the values whichBallew found inadequately served by a five memberjury are preserved by the non-unanimous verdictof a six member panel.

"' State v. Wrestle, 360 So. 2d 831 (La. 1978).

1978]