Sixth Amendment Does Not Mandate Twelve Person Jury in All State Cases
Williams v. Florida, Supreme Court of the United States (1970), 399 U.S. 78, 90 S.Ct. 1893
FACTS:
Petitioner Williams filed a pretrial motion to request a twelve person jury for his robbery trial. Florida law permitted Williams a six person jury but not a twelve person jury since the larger jury was allowable only for capital cases. The trial judge denied the motion, and Williams was convicted as charged and sentenced to life in prison.
On appeal, the Florida District Court of Appeal affirmed and rejected, among other claims, Williams' Sixth Amendment twelve person jury claim. The Supreme Court granted certiorari to consider the question of number of jurors.
PROCEDURAL QUESTION:
Does the constitutional right to a jury trial under the Sixth Amendment require a twelve person jury in a non-capital state criminal prosecution?
HELD: No.
RATIONALE:
In Duncan v. Louisiana, 391 U.S. 145 (1968), we held that the Fourteenth Amendment guarantees a right to trial by jury in all criminal cases that--were they to be tried in a federal court--would come within the Sixth Amendment's guarantee. Petitioner's trial for robbery on July 3, 1968, clearly falls within the scope of that holding. See Baldwin v. New York, ante, p. 66; DeStefano v. Woods, 392 U.S. 631 (1968). The question in this case then is whether the constitutional guarantee of a trial by "jury" necessarily requires trial by exactly 12 persons, rather than some lesser number in this case six. We hold that the 12-man panel is not a necessary ingredient of "trial by jury," and that respondent's refusal to impanel more than the six members provided for by Florida law did not violate petitioner's Sixth Amendment rights as applied to the States through the Fourteenth.
We had occasion in Duncan v. Louisiana, supra, to review briefly the oft-told history, of the development 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, 170 U.S. 343 (1898). There the defendant had been tried and convicted by a 12-man jury for a crime committed in the Territory of Utah. A new trial was granted, but by that time Utah had been admitted as a State. The defendant's new trial proceeded under Utah's Constitution, providing for a jury of only eight members. This Court reversed the resulting conviction, holding that Utah's constitutional provision was an ex post facto law as applied to the defendant. In reaching its, conclusion, the Court announced that the Sixth Amendment was applicable to the defendant's trial when Utah was a Territory, and that the jury referred to in the Amendment was a jury "constituted, as it was at common law, of twelve persons, neither more nor less." 170 U.S., at 349. 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." . . .
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. Provision 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.
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We do not pretend to be able to divine precisely what the word "jury" imported to the Framers, the First congress, or the States in 1789. It may well be that the usual expectation was that the jury would consist of 12, and that hence, the most likely conclusion to be drawn is simply that little thought was actually given to the specific question we face today. But there is absolutely no indication in "the intent of the Framers" of an explicit decision to equate the constitutional and common-law characteristics of the jury. Nothing in this history suggests, then, that we do violence to the letter of the Constitution by turning to other than purely historical considerations to determine which features of the jury system, as it existed at common law, were preserved in the Constitution. The relevant inquiry, as we see it must be the function that the particular feature performs and its relation to the purposes of the jury trial. Measured by this standard, the 12-man requirement cannot be regarded as an indispensable component of the Sixth Amendment.
The purpose of the jury trial, as we noted in Duncan, is to prevent oppression by the Government. "Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge." Duncan v. Louisiana, supra, at 156. 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, see, e.g., Carter v. Jury Commission, 396 U.S. 320, 329-330 (1970), the concern that the cross-section will be significantly diminished if the jury is decreased in size from 12 to six seems an unrealistic one.
We conclude, in short, as we began: the fact that the jury at common law was composed of precisely 12 is a historical accident, unnecessary to effect the purposes of the jury system and wholly without significance "except to mystics." Duncan v. Louisiana, supra, at 182 (HARLAN, J., dissenting). 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.
Notes
1. While Williams approved using a six person jury, instead of a twelve person jury, for serious non-capital cases, the plunge in numbers of jurors apparently reached the low water mark with Ballew v. Georgia, 435 U.S. 223 (1978). In Ballew, the Court held that a jury composed of five members was constitutionally too small to permit effective group deliberation and could produce inaccurate results in a greater number of cases. The Court expressed some concern that progressively smaller juries could reduce the chances of minority participation in the jury system. Would you rather be tried by a twelve person jury or a five person jury? What are your reasons? It would be easier to be acquitted since the defendant would only have to convince five members rather than six or twelve. Would it be easier to be convicted?
2. In an effort at reform of the jury system, the Louisiana legislature permitted a non-unanimous twelve person jury to reach a verdict. In Johnson v. Louisiana, 406 U.S. 356 (1972), the Court sustained the 9-3 jury vote despite allegations that such a conviction may have not been based on proof beyond a reasonable doubt. The Court rejected an argument that the dissent of three jurors tends to impeach the verdict of the other nine jurors. Similarly, a 9-3 vote does not imply that the nine jurors failed to consider the views of the other three.
3. Since the Court in Johnson approved a non-unanimous twelve person jury verdict, why not try a similar approach with a six-person jury? Louisiana lowered the number of jurors to six in non-capital cases and allowed a jury vote of 5-1 to produce a decision for criminal cases in which the punishment could be confinement for a period greater than six months. The practice would save the criminal justice system money by having to pay fewer jurors and by having fewer hung juries. In Burch v. Louisiana, 441 U.S. 130 (1979), the Supreme Court ruled that the non-unanimous six person jury failed to meet the Sixth Amendment guarantee of rial by jury. It rejected the theory that if 75% juror concurrence in Johnson v. Louisiana was permissible, that juror concurrence of 83% in Burch should be sufficient. Is a non-unanimous six person jury that much different than a unanimous six person jury? Or is this one of those "slippery slopes" where the right to a jury trial might evolve to a one person jury and effectively end the trial by jury as we know it?
4. If you were a court administrator, why would you support the use of juries composed of fewer than twelve members? Would your reasons be valid when less than unanimous verdict juries are considered? Why or why not? Would your answers change if you were the defendant? Why?
Racial Animus May Not Be Basis of Peremptory Challenge by Prosecutor
BATSON v. KENTUCKY, Supreme Court of the United States (1986), 476 U.S. 79, 106 S.Ct. 1712
FACTS:
Petitioner Batson, an African-American, was indicted in Kentucky on charges of second degree burglary and receipt of stolen goods. At the start of his trial, the judge conducted voir dire examination of the venire, excused certain jurors for cause, and permitted the parties to exercise peremptory challenges. The prosecutor carefully used his peremptory challenges to strike all four black persons on the venire. The final selections resulted in a jury composed only of white persons. Defense counsel requested the trial judge to discharge the jury before jeopardy attached. Defendant contended that the prosecutor's use of peremptory challenges violated petitioner's rights under the Sixth and Fourteenth Amendments to have a jury selected from a cross-section of the community, and under the Fourteenth Amendment to equal protection of the laws. The trial judge observed that the parties were entitled to use their peremptory challenges to "strike anybody they want to." The judge denied petitioner's motion, reasoning that the cross-section requirement applies only to selection of the venire and not to selection of the trial jury itself.
The jury convicted petitioner on both counts. On appeal to the Supreme Court of Kentucky, petitioner alleged that the prosecutor's use of peremptory challenges deprived him of his rights under the Sixth Amendment. Petitioner urged the court to follow decisions of other states, and to hold that such conduct violated his rights under the Sixth Amendment and § 11 of the Kentucky Constitution to a jury drawn from a cross-section of the community. Petitioner also contended that the facts showed that the prosecutor had engaged in a "pattern" of discriminatory challenges in this case and established an equal protection violation under Swain v. Alabama, 380 U.S. 202 (1965).
The Supreme Court of Kentucky affirmed Batson's convictions, and the Supreme Court granted certiorari, and reversed.
PROCEDURAL QUESTION:
Where a prosecutor uses peremptory challenges t particular jurors in a manner calculated to remove all individuals of one race from serving on a trial jury, does such practice violate a defendant's right to Equal Protection under the Fourteenth Amendment?
HELD: Yes.
RATIONALE:
JUSTICE POWELL delivered the opinion of the Court.
This case requires us to reexamine that portion of Swain v. Alabama, 380 U.S. 202 (1965), concerning the evidentiary burden placed on a criminal defendant who claims that he has been denied equal protection through the State's use of peremptory challenges to exclude members of his race from the petit jury.
I
In Swain v. Alabama, this Court recognized that a "State's purposeful or deliberate denial to Negroes on account of race of participation as jurors in the administration of justice violates the Equal Protection Clause." [Swain] 380 U.S., at 203-204. This principle has been "consistently and repeatedly" reaffirmed, in numerous decisions of this Court both preceding and following Swain. We reaffirm the principle today.
A
More than a century ago, the Court decided that the State denies a black defendant equal protection of the laws when it puts him on trial before a jury from which members of his own race have been purposefully excluded. Strauder v. West Virginia, 100 U.S. 303 (1880). The decision laid the foundation for the Court's unceasing efforts to eradicate racial discrimination in the procedures used to select the venire from which individual jurors are drawn.
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. . . [T]he component of the jury selection process at issue here, the State's privilege to strike individual jurors through peremptory challenges, is subject to the commands of the Equal Protection Clause. Although a prosecutor ordinarily is entitled to exercise permitted peremptory challenges "for any reason at all, as long as that reason is related to his view concerning the outcome" of the case to be tried, the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant.
III
The principles announced in Strauder never have been questioned in any subsequent decision of this Court. Rather, the Court has been called upon repeatedly to review the application of those principles to particular facts. A recurring question in these cases, as in any case alleging a violation of the Equal Protection Clause, was whether the defendant has met his burden of proving purposeful discrimination on the part of the State. [Citations omitted.]
A
Swain required the Court to decide, among other issues, whether a black defendant was denied equal protection by the State's exercise of peremptory challenges to exclude members of his race from the petit jury. The record in Swain showed that the prosecutor had used the State's peremptory challenges to strike the six black persons included on the petit jury venire. While rejecting the defendant's claim for failure to prove purposeful discrimination, the Court nonetheless indicated that the Equal Protection Clause placed some limits on the State's exercise of peremptory challenges.
The Court sought to accommodate the prosecutor's historical privilege of peremptory challenge free of judicial control, and the constitutional prohibition on exclusion of persons from jury service on account of race. While the Constitution does not confer a right to peremptory challenges, those challenges traditionally have been viewed as one means of assuring the selection of a qualified and unbiased jury. To preserve the peremptory nature of the prosecutor's challenge, the Court in Swain declined to scrutinize his actions in a particular case by relying on a presumption that he properly exercised the State's challenges.
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Accordingly, a black defendant could make out a prima facie case of purposeful discrimination on proof that the peremptory challenge system was "being perverted" in that manner. For example, an inference of purposeful discrimination would be raised on evidence that a prosecutor, "in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries." Evidence offered by the defendant in Swain did not meet that standard. While the defendant showed that prosecutors in the jurisdiction had exercised their strikes to exclude blacks from the jury, he offered no proof of the circumstances under which prosecutors were responsible for striking black jurors beyond the facts of his own case. [Swain], at 224-228.
A number of lower courts following the teaching of Swain reasoned that proof of repeated striking of blacks over a number of cases was necessary to establish a violation of the Equal Protection Clause. Since this interpretation of Swain has placed on defendants a crippling burden of proof, prosecutors' peremptory challenges are now largely immune from constitutional scrutiny. . . . [W]e reject this evidentiary formulation as inconsistent with standards that have been developed since Swain for assessing a prima facie case under the Equal Protection Clause.
B
Since the decision in Swain, we have explained that our cases concerning selection of the venire reflect the general equal protection principle that the "invidious quality" of governmental action claimed to be racially discriminatory "must ultimately be traced to a racially discriminatory purpose." As in any equal protection case, the "burden is, of course," on the defendant who alleges discriminatory selection of the venire "to prove the existence of purposeful discrimination."
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Thus, since the decision in Swain, this Court has recognized that a defendant may make a prima facie showing of purposeful racial discrimination in selection of the venire by relying solely on the facts concerning its selection in his case. These decisions are in accordance with the proposition articulated in Arlington Heights v. Metropolitan Housing Development Corp., that "a consistent pattern of official racial discrimination" is not "a necessary predicate to a violation of the Equal Protection Clause. A single invidiously discriminatory governmental act" is not "immunized by the absence of such discrimination in the making of other comparable decisions." 429 U.S., at 266, n.14. For evidentiary requirements to dictate that "several must suffer discrimination" before one could object, McCray v. New York, 461 U.S., at 965 (Marshall dissenting from denial of certiorari.), would be inconsistent with the promise of equal protection to all.
C
The standards for assessing a prima facie case in the context of discriminatory selection of the venire have been fully articulated since Swain. [Other citations omitted.] These principles support our conclusion that a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial. To establish such a case, the defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits "those to discriminate who are of a mind to discriminate." Avery v. Georgia, 345 U.S., at 562. Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empaneling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination.
In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. For example, a "pattern" of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor's questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. These examples are merely illustrative. We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor's use of peremptory challenges creates a prima facie case of discrimination against black jurors.
Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors. Though this requirement imposes a limitation in some cases on the full peremptory character of the historic challenge, we emphasize that the prosecutor's explanation need not rise to the level justifying exercise of a challenge for cause. [McCray] But the prosecutor may not rebut the defendant's prima facie case of discrimination by stating merely that he challenged jurors of the defendant's race on the assumption--or his intuitive judgment--that they would be partial to the defendant because of their shared race. [Citation omitted.] Just as the Equal Protection Clause forbids the States to exclude black persons from the venire on the assumption that blacks as a group are unqualified to serve as jurors, so it forbids the States to strike black veniremen on the assumption that they will be biased in a particular case simply because the defendant is black. The core guarantee of equal protection, ensuring citizens that their State will not discriminate on account of race, would be meaningless were we to approve the exclusion of jurors on the basis of such assumptions, which arise solely from the jurors' race. Nor may the prosecutor rebut the defendant's case merely by denying that he had a discriminatory motive or "affirm[ing] [his] good faith in individual selections." . . . . The prosecutor therefore must articulate a neutral explanation related to the particular case to be tried. The trial court then will have the duty to determine if the defendant has established purposeful discrimination.
* * *V
In this case, petitioner made a timely objection to the prosecutor's removal of all black persons on the venire. Because the trial court flatly rejected the objection without requiring the prosecutor to give an explanation for his action, we remand this case for further proceedings. If the trial court decides that the facts establish, prima facie, purposeful discrimination and the prosecutor does not come forward with a neutral explanation for his action, our precedents require that petitioner's conviction be reversed.
Notes
1. In Swain v. Alabama, 380 U.S. 202 (1965), cited in Batson, the Court held that where it could be proven that a state purposefully or intentionally denied black citizens the right to participate as jurors in the administration of justice, a violation of the Equal Protection Clause of the Fourteenth Amendment would exist. However, in Swain, the Court placed a difficult burden of proof since it also held that the person alleging a violation of equal protection had to prove a pattern of discrimination, not merely discrimination in the defendant's particular case. The Swain burden proved to be virtually insurmountable. Batson altered the manner of proof so that an aggrieved defendant has an opportunity to establish a prima facie case of discrimination solely on evidence concerning a prosecutor's conduct in exercising peremptory challenges at the defendant's trial. Following Batson, proof of longstanding discriminatory past practice will no longer be required.
2. In contrast to Batson, where persons were being removed from jury service, a woman in Louisiana was not eligible for jury service unless she had filed a written declaration stating her desire to be available for jury duty. In some cases, no women were on the venire from which trial juries were drawn. In Taylor v. Louisiana, 419 U.S. 522 (1975), the defendant male challenged the Louisiana system of selecting jurors as being inconsistent with the Sixth Amendment. He contended that the venire from which juries are selected should contain a fair cross section of community members. After surveying past jury trial cases, the Taylor court noted that the unmistakable import of its jury selection opinions required that a jury be selected from a fair cross section of the community. According to the Court:
We accept the fair cross section requirement as fundamental to the jury trial guaranteed by the Sixth Amendment and are convinced that the requirement has solid foundation. The purpose of a jury is to guard against the exercise of arbitrary power-- to make available the commonsense judgment of the community as the hedge against the overzealous prosecutor . . .
The Court held that Louisiana's process of excluding women violated the concept of selecting jurors from a fair cross section of the community.
3. Subsequent to deciding Batson, the Court declined to hold that a defendant has the right to a fair possibility to a jury composed of a representative sample of the community. In Holland v. Illinois, 493 U.S. 474 (1990), the defendant unsuccessfully contended that the prosecutor should be prevented under the Sixth Amendment from exercising peremptory challenges is such a manner to exclude all blacks from his jury. The Court believed that so long as a fair cross-section existed in the venire from which the trial jurors were to be chosen, no violation of the Constitution existed. Should a defendant be able to contest a case where the prosecutor seeks to eliminate a class of jurors from the jury? However, consider the Holland decision in light of the next note case, Powers v. Ohio, 499 U.S. 400 (1991).
4. In a case almost the reverse of Batson, a Caucasian, Larry Powers objected to the prosecutor's repeated use of peremptory challenges to remove prospective black jurors from sitting on his trial jury. In Powers v. Ohio, 499 U.S. 400 (1991), the Court rejected the state's argument that because Powers was white, he could not complain if black jurors were removed because of race. The Court held that:
. . . the Equal Protection Clause prohibits a prosecutor from using the State's peremptory challenges to exclude otherwise qualified and unbiased persons form the petit jury solely by reason of their race, a practice that forecloses a significant opportunity to participate in civic life. An individual juror does not have a right to sit on any particular petit jury, but he or she does possess the right not to be excluded from one on account of race.