CERTIORARI TO THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD
Decided June 22, 1970
MR. JUSTICE WHITE delivered the opinion of the Court.
Prior to his trial for robbery in the State of Florida, petitioner also filed a pretrial motion to impanel a 12-man jury instead of the six-man jury provided by Florida law in all but capital cases. That motion too was denied. Petitioner was convicted as charged and was sentenced to life imprisonment. The District Court of Appeal affirmed, rejecting petitioner's claims that his Sixth Amendment rights had been violated. We granted certiorari....
In Duncan v. Louisiana (1968), we held that the Fourteenth Amendment guarantees a right to trial by jury in all criminal cases that - were they to be tried in a federal court - would come within the Sixth Amendment's guarantee. Petitioner's trial for robbery on July 3, 1968, clearly falls within the scope of that holding. The question in this case then is whether the constitutional guarantee of a trial by "jury" necessarily requires trial by exactly 12 persons, rather than some lesser number - in this case six. We hold that the 12-man panel is not a necessary ingredient of "trial by jury," and that respondent's refusal to impanel more than the six members provided for by Florida law did not violate petitioner's Sixth Amendment rights as applied to the States through the Fourteenth.
We had occasion in Duncan v. Louisiana to review briefly the oft-told history of the development of trial by jury in criminal cases. That history revealed a long tradition attaching great importance to the concept of relying on a body of one's peers to determine guilt or innocence as a safeguard against arbitrary law enforcement. That same history, however, affords little insight into the considerations that gradually led the size of that body to be generally fixed at 12. Some have suggested that the number 12 was fixed upon simply because that was the number of the presentment jury from the hundred, from which the petit jury developed. Other, less circular but more fanciful reasons for the number 12 have been given, "but they were all brought forward after the number was fixed," and rest on little more than mystical or superstitious insights into the significance of "12." Lord Coke's explanation that the "number of twelve is much respected in holy writ, as 12 apostles, 12 stones, 12 tribes, etc.," is typical. In short, while sometime in the 14th century the size of the jury at common law came to be fixed generally at 12, that particular feature of the jury system appears to have been a historical accident, unrelated to the great purposes which gave rise to the jury in the first place. The question before us is whether this accidental feature of the jury has been immutably codified into our Constitution.
This Court's earlier decisions have assumed an affirmative answer to this question. The leading case so construing the Sixth Amendment is Thompson v. Utah (1898). There the defendant had been tried and convicted by a 12-man jury for a crime committed in the Territory of Utah. A new trial was granted, but by that time Utah had been admitted as a State. The defendant's new trial proceeded under Utah's Constitution, providing for a jury of only eight members. This Court reversed the resulting conviction, holding that Utah's constitutional provision was an ex post facto law as applied to the defendant. In reaching its conclusion, the Court announced that the Sixth Amendment was applicable to the defendant's trial when Utah was a Territory, and that the jury referred to in the Amendment was a jury "constituted, as it was at common law, of twelve persons, neither more nor less." Arguably unnecessary for the result, this announcement was supported simply by referring to the Magna Carta, and by quoting passages from treatises which noted - what has already been seen - that at common law the jury did indeed consist of 12. Noticeably absent was any discussion of the essential step in the argument: namely, that every feature of the jury as it existed at common law - whether incidental or essential to that institution - was necessarily included in the Constitution wherever that document referred to a "jury." Subsequent decisions have reaffirmed the announcement in Thompson, often in dictum and usually by relying - where there was any discussion of the issue at all - solely on the fact that the common-law jury consisted of 12.
While "the intent of the Framers" is often an elusive quarry, the relevant constitutional history casts considerable doubt on the easy assumption in our past decisions that if a given feature existed in a jury at common law in 1789, then it was necessarily preserved in the Constitution. Provisions for jury trial were first placed in the Constitution in Article III's provision that "[t]he Trial of all Crimes . . . shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed." The "very scanty history [of this provision] in the records of the Constitutional Convention" sheds little light either way on the intended correlation between Article III's "jury" and the features of the jury at common law. Indeed, pending and after the adoption of the Constitution, fears were expressed that Article III's provision failed to preserve the common-law right to be tried by a "jury of the vicinage." That concern, as well as the concern to preserve the right to jury in civil as well as criminal cases, furnished part of the impetus for introducing amendments to the Constitution that ultimately resulted in the jury trial provisions of the Sixth and Seventh Amendments. As introduced by James Madison in the House, the Amendment relating to jury trial in criminal cases would have provided that:
The 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." Given this purpose, the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group's determination of guilt or innocence. The performance of this role is not a function of the particular number of the body that makes up the jury. To be sure, the number should probably be large enough to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility for obtaining a representative cross-section of the community. But we find little reason to think that these goals are in any meaningful sense less likely to be achieved when the jury numbers six, than when it numbers 12 - particularly if the requirement of unanimity is retained. And, certainly the reliability of the jury as a factfinder hardly seems likely to be a function of its size.
It might be suggested that the 12-man jury gives a defendant a greater advantage since he has more "chances" of finding a juror who will insist on acquittal and thus prevent conviction. But the advantage might just as easily belong to the State, which also needs only one juror out of twelve insisting on guilt to prevent acquittal. What few experiments have occurred - usually in the civil area - indicate that there is no discernible difference between the results reached by the two different-sized juries. In short, neither currently available evidence nor theory suggests that the 12-man jury is necessarily more advantageous to the defendant than a jury composed of fewer members.
Similarly, while in theory the number of viewpoints represented on a randomly selected jury ought to increase as the size of the jury increases, in practice the difference between the 12-man and the six-man jury in terms of the cross-section of the community represented seems likely to be negligible. Even the 12-man jury cannot insure representation of every distinct voice in the community, particularly given the use of the peremptory challenge. As long as arbitrary exclusions of a particular class from the jury rolls are forbidden, the concern that the cross-section will be significantly diminished if the jury is decreased in size from 12 to six seems an unrealistic one.
We conclude, in short, as we began: the fact that the jury at common law was composed of precisely 12 is a historical accident, unnecessary to effect the purposes of the jury system and wholly without significance "except to mystics." To read the Sixth Amendment as forever codifying a feature so incidental to the real purpose of the Amendment is to ascribe a blind formalism to the Framers which would require considerably more evidence than we have been able to discover in the history and language of the Constitution or in the reasoning of our past decisions. We do not mean to intimate that legislatures can never have good reasons for concluding that the 12-man jury is preferable to the smaller jury, or that such conclusions - reflected in the provisions of most States and in our federal system - are in any sense unwise. Legislatures may well have their own views about the relative value of the larger and smaller juries, and may conclude that, wholly apart from the jury's primary function, it is desirable to spread the collective responsibility for the determination of guilt among the larger group. In capital cases, for example, it appears that no State provides for less than 12 jurors - a fact that suggests implicit recognition of the value of the larger body as a means of legitimating society's decision to impose the death penalty. Our holding does no more than leave these considerations to Congress and the States, unrestrained by an interpretation of the Sixth Amendment that would forever dictate the precise number that can constitute a jury. Consistent with this holding, we conclude that petitioner's Sixth Amendment rights, as applied to the States through the Fourteenth Amendment, were not violated by Florida's decision to provide a six-man rather than a 12-man jury. The judgment of the Florida District Court of Appeal is Affirmed.
The Court today holds that a State can, consistently with the Sixth Amendment to the United States Constitution, try a defendant in a criminal case with a jury of six members. I agree with that decision for substantially the same reasons given by the Court. My Brother HARLAN, however, charges that the Court's decision on this point is evidence that the "incorporation doctrine," through which the specific provisions of the Bill of Rights are made fully applicable to the States under the same standards applied in federal courts will somehow result in a "dilution" of the protections required by those provisions. He asserts that this Court's desire to relieve the States from the rigorous requirements of the Bill of Rights is bound to cause re-examination and modification of prior decisions interpreting those provisions as applied in federal courts in order simultaneously to apply the provisions equally to the State and Federal Governments and to avoid undue restrictions on the States. This assertion finds no support in today's decision or any other decision of this Court. We have emphatically "rejected the notion that the Fourteenth Amendment applies to the States only a `watered-down, subjective version of the individual guarantees of the Bill of Rights.'" Today's decision is in no way attributable to any desire to dilute the Sixth Amendment in order more easily to apply it to the States, but follows solely as a necessary consequence of our duty to re-examine prior decisions to reach the correct constitutional meaning in each case. The broad implications in early cases indicating that only a body of 12 members could satisfy the Sixth Amendment requirement arose in situations where the issue was not squarely presented and were based, in my opinion, on an improper interpretation of that amendment. Had the question presented here arisen in a federal court before our decision in Duncan v. Louisiana (1968), this Court would still, in my view, have reached the result announced today. In my opinion the danger of diluting the Bill of Rights protections lies not in the "incorporation doctrine," but in the "shock the conscience" test on which my Brother HARLAN would rely instead - a test which depends, not on the language of the Constitution, but solely on the views of a majority of the Court as to what is "fair" and "decent."MR. JUSTICE MARSHALL, dissenting.
Since I believe that the Fourteenth Amendment guaranteed Williams a jury of 12 to pass upon the question of his guilt or innocence before he could be sent to prison for the rest of his life, I dissent from the affirmance of his conviction.
I adhere to the holding of Duncan v. Louisiana (1968), that "[b]ecause . . . trial by jury in criminal cases is fundamental to the American scheme of justice . . . the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which - were they to be tried in a federal court - would come within the Sixth Amendment's guarantee." And I agree with the Court that the same "trial by jury" is guaranteed to state defendants by the Fourteenth Amendment as to federal defendants by the Sixth. "Once it is decided that a particular Bill of Rights guarantee is `fundamental to the American scheme of justice' . . . the same constitutional standards apply against both the State and Federal Governments."
At the same time, I adhere to the decision of the Court in Thompson v. Utah (1898), that the jury guaranteed by the Sixth Amendment consists "of twelve persons, neither more nor less." As I see it, the Court has not made out a convincing case that the Sixth Amendment should be read differently than it was in Thompson even if the matter were now before us de novo - much less that an unbroken line of precedent going back over 70 years should be overruled.
MR. JUSTICE HARLAN, concurring in the result.
In Duncan v. Louisiana (1968), the Court held, over my dissent, joined by MR. JUSTICE STEWART, that a state criminal defendant is entitled to a jury trial in any case which, if brought in a federal court, would require a jury under the Sixth Amendment. Today the Court holds in Williams v. Florida, that Florida's six-member-jury statute satisfies the Sixth Amendment as carried to the States by the Duncan holding. The necessary consequence of this decision is that 12-member juries are not constitutionally required in federal criminal trials either.
The historical argument by which the Court undertakes to justify its view that the Sixth Amendment does not require 12-member juries is, in my opinion, much too thin to mask the true thrust of this decision. The decision evinces, I think, a recognition that the "incorporationist" view of the Due Process Clause of the Fourteenth Amendment, which underlay Duncan and is now carried forward into Baldwin, must be tempered to allow the States more elbow room in ordering their own criminal systems. With that much I agree. But to accomplish this by diluting constitutional protections within the federal system itself is something to which I cannot possibly subscribe. Tempering the rigor of Duncan should be done forthrightly, by facing up to the fact that at least in this area the "incorporation" doctrine does not fit well with our federal structure, and by the same token that Duncan was wrongly decided....
The Court, in stripping off the livery of history from the jury trial, relies on a two-step analysis. With arduous effort the Court first liberates itself from the "intent of the Framers" and "the easy assumption in our past decisions that if a given feature existed in a jury at common law in 1789, then it was necessarily preserved in the Constitution." Unburdened by the yoke of history the Court then concludes that the policy protected by the jury guarantee does not require its perpetuation in common-law form.
Neither argument is, in my view, an acceptable reason for disregarding history and numerous pronouncements of this Court that have made "the easy assumption" that the Sixth Amendment's jury was one composed of 12 individuals. Even assuming ambiguity as to the intent of the Framers, it is common sense and not merely the blessing of the Framers that explains this Court's frequent reminders that: "The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history." History continues to be a wellspring of constitutional interpretation.... In accordance with these precepts, sound constitutional interpretation requires, in my view, fixing the federal jury as it was known to the common law.
It is, of course, true that history should not imprison those broad guarantees of the Constitution whose proper scope is to be determined in a given instance by a blend of historical understanding and the adaptation of purpose to contemporary circumstances. This is not, however, a circumstance of giving a term "a meaning not necessarily envisioned . . . so as to adapt [it] to circumstances . . . uncontemplated." The right to a trial by jury, however, has no enduring meaning apart from historical form.
The second aspect of the Court's argument is that the number "12" is a historical accident - even though one that has recurred without interruption since the 14th century - and is in no way essential to the "purpose of the jury trial" which is to "safeguard against the corrupt or overzealous prosecutor and against the complaint, biased, or eccentric judge." Thus history, the Court suggests, is no guide to the meaning of those rights whose form bears no relation to the policy they reflect. In this context the 12-member feature of the classical common-law jury is apparently regarded by the Court as mere adornment.
This second justification for cutting the umbilical cord that ties the form of the jury to the past is itself, as I see it, the most compelling reason for maintaining that guarantee in its common-law form. For if 12 jurors are not essential, why are six? What if New York concludes that three jurors are adequate "interposition between the accused and his accuser of the common-sense judgment of a group of laymen," and constitute adequate "community participation and [provide] shared responsibility which results from that group's determination of guilt or innocence"? The Court's elaboration of what is required provides no standard and vexes the meaning of the right to a jury trial in federal courts, as well as state courts, by uncertainty. Can it be doubted that a unanimous jury of 12 provides a greater safeguard than a majority vote of six? The uncertainty that will henceforth plague the meaning of trial by jury is itself a further sufficient reason for not hoisting the anchor to history.
The circumvention of history is compounded by the cavalier disregard of numerous pronouncements of this Court that reflect the understanding of the jury as one of 12 members and have fixed expectations accordingly....
The principle of stare decisis is multifaceted. It is a solid foundation for our legal system; yet care must be taken not to use it to create an unmovable structure. It provides the stability and predictability required for the ordering of human affairs over the course of time and a basis of "public faith in the judiciary as a source of impersonal and reasoned judgments." Surely if the principle of stare decisis means anything in the law, it means that precedent should not be jettisoned when the rule of yesterday remains viable, creates no injustice, and can reasonably be said to be no less sound than the rule sponsored by those who seek change, let alone incapable of being demonstrated wrong. The decision in Williams, however, casts aside workability and relevance and substitutes uncertainty. The only reason I can discern for today's decision that discards numerous judicial pronouncements and historical precedent that sound constitutional interpretation would look to as controlling, is the Court's disquietude with the tension between the jurisprudential consequences wrought by "incorporation" in Duncan and the counter-pulls of the situation in Williams which presents the prospect of invalidating the common practice in the States of providing less than a 12-member jury for the trial of misdemeanor cases....
I substantially agree with the separate opinion MR. JUSTICE HARLAN has filed in these cases - an opinion that fully demonstrates some of the basic errors in a mechanistic "incorporation" approach to the Fourteenth Amendment. I cannot subscribe to his opinion in its entirety, however, if only for the reason that it relies in part upon certain dissenting and concurring opinions in previous cases in which I did not join.
The "incorporation" theory postulates the Bill of Rights as the substantive metes and bounds of the Fourteenth Amendment. I think this theory is incorrect as a matter of constitutional history, and that as a matter of constitutional law it is both stultifying and unsound. It is, at best, a theory that can lead the Court only to a Fourteenth Amendment dead end. And, at worst, the spell of the theory's logic compels the Court either to impose intolerable restrictions upon the constitutional sovereignty of the individual States in the administration of their own criminal law, or else intolerably to relax the explicit restrictions that the Framers actually did put upon the Federal Government in the administration of criminal justice.
The architect of the contemporary "incorporation" approach to
the Fourteenth Amendment is, of course, MR. JUSTICE BLACK. And
the separate opinion my Brother BLACK has filed today could serve as
Exhibit A to illustrate the extraordinary habits of
thought into which some of us have fallen in conditioned reflex to that
erroneous constitutional doctrine. "Incorporation" has become so
Pavlovian that my Brother BLACK barely mentions the Fourteenth
Amendment in the course of an 11-page opinion....
For as every schoolboy knows, the Framers "designed" the Bill of Rights not against "state power," but against the power of the Federal Government...