The Sixth Amendment Right to a Jury

The issue:  What does the Sixth Amendment right to a trial by jury in criminal cases mean?  What is "a jury"?  Must a jury have 12 members, or will 6 do?  How about 5?  Must juries be unanimous to convict?  Could someone be convicted, say, 7 to 5?  Do the same requirements apply in state cases governed by the 14th Amendment as in federal cases governed by the 6th Amendment? How should the Court find answers to such questions?

The Court had long taken the position that a jury in a criminal case must have 12 members.  In 1898, the Court said, "a jury comprised of 12 persons, neither more or less" was a constitutional requirement.  In 1970, in Williams v Florida, they Court reconsidered its earlier statements on jury size in a case that affirmed the conviction of a robber convicted by a six-member Florida jury.  The Court noted that the Sixth Amendment says nothing at all  about jury size, even though 12 person-juries had been traditionally used in America.  The expectation that a jury consists of 12 members dated back to the 1300s, but the Court found that to be a "historical accident."  Concluding that a six-person jury could fulfill the framers' expectations concerning a jury's functions just as well as a 12-person jury, the Court rejected its prior words on the subject and held that six-person juries satisfy the requirements of the Sixth and Fourteenth Amendments.  Justice Harlan harshly criticized the majority's reasoning, asking where and how the Court might draw the line on jury size.  Would a three-person jury be okay, he wondered?

In two cases heard together in 1972, Apodaca v Oregon and Johnson v Louisiana, the Court considered the constitutionality of state laws that permitted criminal defendants to be convicted by less-than-unanimous votes.  (Oregon allowed convictions on 10 to 2 votes, while Louisiana went further and allowed convictions on votes of 9 to 3).  The Court, voting 5 to 4, upheld both state laws even though five justices clearly stated their beliefs that unanimity was required by the Sixth Amendment.  The odd result occurred because Justice Powell, concurring in both cases, concludes that the Sixth Amendment imposes greater requirements on the federal government than the Fourteenth Amendment, incorporating the basic Sixth Amendment right to a jury trial, imposes on the states.  Powell's rejection of jot-for-jot incorporation was not supported in this case by any other justice. 

The Court's conclusion in Apodaca and Johnson adopted reasoning similar to that used in Williams v Florida: the right to a unanimous jury verdict might have been the common expectation at the time the Bill of Rights was  adopted, but the First Congress rejected language that would have made the unanimity requirement specific.  A concurring opinion by Justice Blackmun suggests that he would have a constitutional problem with 8 to 4 or 7 to 5 verdicts.  The four dissenting justices argued that the requirement of proof beyond a reasonable doubt was unconstitutionally weakened by the states' laws allowing non-unanimous jury verdicts in criminal cases.

In Ballew v Georgia (1978), the Court decided it had gone far enough down the slippery slope.  Justice Blackmun's opinion for the Court, relying on a set of empirical studies showing problems with smaller juries, found that Georgia's law allowing criminal juries of just five person violated the Sixth Amendment rights of defendants.  While concurring in the result, Justice Powell, joined by two other justices, reiterated that he did not think the Fourteenth Amendment imposed exactly the same requirements for juries on states that the Sixth Amendment did on the federal government.

The Supreme Court visited the issue of jury size and unanimity one final time in 1979.  In Burch v Louisiana, the Court found Louisiana's law that allowed criminal convictions on 5 to 1 votes by a six-person jury violated the Sixth Amendment right, incorporated through the Fourteenth Amendment, of defendants to a trial by jury.  If a jury is to be as small as six, the Court said, the verdict has to be unanimous.

In 2020, the Supreme Court finally reconsidered the anomaly created by Justice Powell's insistence on his idiosyncratic approach to incorporation in Apodaca v Oregon in 1972, which resulted in non-unanimous jury verdicts in criminal cases being found acceptable in state courts, but not federal courts, under the Sixth Amendment.  In his opinion for the Court, Justice Gorsuch found Louisiana's law allowing non-unanimous jury verdicts in criminal cases to be unconstitutional, and threw out the conviction of a man found guilty by 10 out of 12 jurors.  "Jot-for-jot incorporation" of the Bill of Rights is now the rule for the Sixth Amendment, as well as others.


 Cases & Conferences
Williams v Florida (1970)
Apodaca v Oregon/ Johnson v Louisiana (1972)
Johnson v Louisiana (Conference)
Ballew v Georgia (1978)
Ballew v Georgia (Conference)
Ramos v Louisiana (2020)

The jury in the Lizzie Borden trial watches as District Attorney Moody displays a dress.


1. Does the Court come up with any sound principle that supports its ultimate conclusion that a six-person jury is constitutional, but that a five-person jury violates the Sixth and Fourteenth Amendments?
2.  Is there any sound principle that supports the Court drawing the line between 9 to 3 verdicts (constitutional) and 8 to 4 verdicts (unconstitutional)?
3.  Does the lack of a sound principle supporting the Court's lines suggest that the Court should have stuck with the common law rules that juries were comprised of 12 persons and had to reach unanimous verdicts?
4.  Would it be constitutional for a state to combine non-unanimity with a jury of less than 12?  (See Burch v Louisiana (US, 1979), in which the Court finds that Louisiana's law permitting convictions on 5 to 1 votes violates the Sixth Amendment.)  Would a state law authorizing convictions by a vote of 9 to 1 also be unconstitutional?
5.  Note that one justice can sometimes greatly complicate the law.  Justice Powell's view that the Sixth Amendment requires unanimity in federal cases (the fifth justice supporting that view in Apodaca), but that the Fourteenth Amendment does not require unanimity in state criminal cases (the fifth vote also for that position in Apodaca), means that--despite the fact that eight justices believed the same rule should apply in both federal and state trial--one rule governs in federal cases and another in states.
6.  Ballew rested almost entirely on recent empirical studies showing problems with small juries.  Is it wise to base constitutional law on such studies?

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