Baldwin v. New York Williams v. Florida

CourtUnited States Supreme Court
Citation26 L.Ed.2d 446,90 S.Ct. 1914,399 U.S. 117
Docket Number927,Nos. 188,s. 188
PartiesRobert BALDWIN, Appellant, v. State of NEW YORK. Johnny WILLIAMS, Petitioner, v. State of FLORIDA
Decision Date22 June 1970

Mr. Justice HARLAN, dissenting in No. 188, and concurring in the result in No. 927.

In Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (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 concludes, in No. 188, Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437, that New York cannot constitutionally provide that misdemeanors carrying sentences up to one year shall be tried in New York City without a jury.1 At the same time the Court holds in No. 927, Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446, that Florida's six-member-jury statute satisfies the Sixth Amendment as carried to the States by the Duncan holding.2 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.

I would sustain both the Florida and New York statutes on the constitutional premises discussed in my dissenting opinion in Duncan, 391 U.S., at 161, 88 S.Ct. at 1453—1454 et seq. In taking that course in Baldwin, I cannot, in a matter that goes to the very pulse of sound constitutional adjudication, consider myself constricted by stare decisis.3 Accordingly, I dissent in No. 188 and, as to the jury issue, concur in the result in No. 927. Given Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), I join that part of the Court's opinion in No. 927 relating to the Florida 'alibi' procedure.


As a predicate for my conclusions, it is useful to map the circuitous route that has been taken in order to reach the results. In both cases, more patently in Williams than in Baldwin, the history of jury trial practice in both the state and federal systems has been indiscriminately jumbled together as opposed to the point of departure having been taken from the language in which the federal guarantee is expressed and the historical precedent that brings it to life. The consequence of this inverted approach to interpreting the Sixth Amendment results, fortuitiously,4 in Baldwin in a Sixth Amendment rule that would be reached under the correct approach, given the 'incorporationist' philosophy of Duncan, but, unhappily, imposes it on the one jurisdiction in the country that has seen fit to do otherwise; and in Williams results in a Sixth Amendment rule that could only be reached by standing the constitutional dialectic on its head.


To the extent that the prevailing opinion premises its conclusions in the Baldwin case on federal precedent and the common-law practice, I agree that the federal right to jury trial attaches where an offense is punishable by as much as six months' imprisonment. I think this follows both from the breadth of the language of the Sixth Amendment, which provides for a jury in 'all criminal prosecutions,' and the evidence of historical practice. In this regard I believe that contemporary usage in the States is of little, if any, significance.5 For if exceptions are to be created out of the allembracing language of the Sixth Amendment they should only be those that are anchored in history.

It is to the distinction between 'petty' and 'serious' offenses, rooted in the common law, that this Court has looked to ascertain the metes and bounds of the federal right guaranteed by the Sixth Amendment. See District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660, 81 L.Ed. 843 (1937); Schick v. United States, 195 U.S. 65, 24 S.Ct. 826, 49 L.Ed. 99 (1904); Callan v. Wilson, 127 U.S. 540, 552, 8 S.Ct. 1301, 1304—1305, 32 L.Ed. 223 (1888). Since the conventional, if not immutable practice at common law appears to have been to provide juries for offenses punishable by fines of more than 100 or sentences to hard labor of more than six months in prison, see Frankfurter & Corcoran, Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury, 39 Harv.L.Rev. 917 (1926),6 I think it appropriate to draw the line at six months in federal cases,7 although, for reasons to follow, I would not encumber the States by this requirement.8


In Williams the Court strangely does an about-face. Rather than bind the States by the hitherto undeviating and unquestioned federal practice of 12-member juries, the Court holds, based on a poll of state practice, that a six-man jury satisfies the guarantee of a trial by jury in a federal criminal system and consequently carries over to the States. This is a constitutional renvoi. With all respect, I consider that before today it would have been unthinkable to suggest that the Sixth Amendment's right to a trial by jury is satisfied by a jury of six, or less, as is left open by the Court's opinion in Williams, or by less than a unanimous verdict, a question also reserved in today's decision.

1. 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.' 399 U.S. at 92—93, 90 S.Ct. at 1902. 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,9 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.' Smith v. Alabama, 124 U.S. 465, 478, 8 S.Ct. 564, 569, 31 L.Ed. 508 (1888). This proposition was again put forward by Mr. Justice Gray speaking for the Court in United States v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. 890 (1898), where the Court was called upon to define the term 'citizen' as used in the Constitution. 'The Constitution nowhere defines the meaning of these words (the Citizenship Clause) * * *. In this, as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the constitution.' 169 U.S., at 654, 18 S.Ct., at 459. History continues to be a wellspring of constitutional interpretation. Indeed, history was even invoked by the Court in such decisions as Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), and Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), where it purported to interpret the constitutional provision for habeas corpus according to the 'historic conception of the writ' and took note that the guarantee was one rooted in common law and should be so interpreted.10 Cf. United States v. Brown, 381 U.S. 437, 458, 85 S.Ct. 1707, 1720, 14 L.Ed.2d 484 (1965). 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. Cf. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Estes v. Texas, 381 U.S. 532, 595—596, 85 S.Ct. 1628, 1666, 14 L.Ed.2d 543 (1965) (concurring opinion); Olmstead v. United States, 277 U.S. 438, 471, 48 S.Ct. 564, 570, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting); United States v. Lovett, 328 U.S. 303, 318, 66 S.Ct. 1073, 1080, 90 L.Ed. 1252 (1946) (Frankfurter, J., concurring).11 B. Cardozo, The Nature of the Judicial Process (1921). This is not, however, a circumstance of giving a term 'a meaning not necessarily envisioned * * * so as to adapt (it) to circumstances * * * uncontemplated.' See my opinion concurring in the result in Welsh v. United States, 398 U.S. 333, 344, 90 S.Ct. 1792, 1798, 26 L.Ed.2d 308 (1970). 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 (see 399 U.S., at 89, 90 S.Ct., at 1899)—and is in no way essential to the 'purpose of the jury trial' which is to 'safeguard...

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