Ballew v. Georgia, No. 76-761

CourtUnited States Supreme Court
Writing for the CourtBLACKMUN
Citation98 S.Ct. 1029,55 L.Ed.2d 234,435 U.S. 223
PartiesClaude D. BALLEW, Petitioner, v. State of GEORGIA
Docket NumberNo. 76-761
Decision Date21 March 1978

435 U.S. 223
98 S.Ct. 1029
55 L.Ed.2d 234
Claude D. BALLEW, Petitioner,

v.

State of GEORGIA.

No. 76-761.
Argued Nov. 1, 1977.
Decided March 21, 1978.
Syllabus

Petitioner, who was charged with committing a misdemeanor, was tried before a five-person jury pursuant to Georgia law, and convicted. Though a criminal trial by a six-person jury is permissible under Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446, petitioner maintains that a trial before a jury of less than six is unconstitutional, a contention that the Georgia courts rejected. Held: The judgment is reversed and the case is remanded. Pp. 229-245; 245; 245-246.

138 Ga.App. 530, 227 S.E.2d 65, reversed and remanded.

Mr. Justice BLACKMUN, joined by Mr. Justice STEVENS, concluded that a criminal trial to a jury of less than six persons substantially threatens Sixth and Fourteenth Amendment guarantees. Georgia has presented no persuasive argument to the contrary. Neither the financial benefit nor the more dubious time-saving benefit claimed is a factor of sufficient significance to offset the substantial threat to the constitutional guarantees that reducing the jury from six to five would create. Pp. 229-245.

Mr. Justice WHITE concluded that a jury of less than six would not satisfy the fair-cross-section requirement of the Sixth and Fourteenth Amendments. P. 245.

Mr. Justice POWELL, with whom The Chief Justice and Mr. Justice REHNQUIST joined, concluded that, though the line between five- and six-member juries is difficult to justify, a line has to be drawn somewhere if the substance of jury trial in criminal cases is to be preserved. P. 245-246.

Page 224

Michael Clutter, Atlanta, Ga., for petitioner, pro hac vice by special leave of Court.

Leonard W. Rhodes, Atlanta, Ga., for respondent.

Mr. Justice BLACKMUN announced the judgment of the Court and delivered an opinion in which Mr. Justice STEVENS joined.

This case presents the issue whethe a state criminal trial to a jury of only five persons deprives the accused of the right to trial by jury guaranteed by him by the Sixth and Fourteenth Amendments.1 Our resolution of the issue requires an application of principles enunciated in Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), where the use of a six-person jury in a state criminal trial was upheld against similar constitutional attack.

I

In November 1973 petitioner Claude Davis Ballew was the manager of the Paris Adult Theatre at 320 Peachtree Street, Atlanta, Ga. On November 9 two investigators from the Fulton County Solicitor General's office viewed at the theater a motion picture film entitled "Behind the Green Door." Record 46-48, 90. After they had seen the film, they obtained

Page 225

a warrant for its seizure, returned to the theater, viewed the film once again, and seized it. Id., at 48-50, 91. Petitioner and a cashier were arrested. Investigators returned to the theater on November 26, viewed the film in its entirety, secured still another warrant, and on November 27 once again viewed the motion picture and seized a second copy of the film. Id., at 53-55.

On September 14, 1974, petitioner was charged in a two-count misdemeanor accusation with

"distributing obscene materials in violation of Georgia Code Section 26-2101 in that the said accused did, knowing the obscene nature thereof, exhibit a motion picture film entitled 'Behind the Green Door' that contained obscene and indecent scenes . . . ." App. 4-6.2

Petitioner was brought to trial in the Criminal Court of Fulton County.3 After a jury of 5 persons had been selected

Page 226

and sworn, petitioner moved that the court impanel a jury of 12 persons. Record 37-38.4 That court, however, tried its misdemeanor cases before juries of five persons pursuant to Ga.Const., Art. 6, § 16, ¶ 1, codified as Ga.Code § 2-5101 (1975), and to 1890-1891 Ga.Laws, No. 278, pp. 937-938, and 1935 Ga.Laws, No. 38, p. 498.5 Petitioner contended that for an obscenity trial, a jury of only five was

Page 227

constitutionally inadequate to assess the contemporary standards of the community. Record 13, 38. He also argued that the Sixth and Fourteenth Amendments required a jury of at least six members in criminal cases. Id., at 38.

The motion for a 12-person jury was overruled, and the trial went on to its conclusion before the 5-person jury that had been impaneled. At the conclusion of the trial, the jury deliberated for 38 minutes and returned a verdict of guilty on both counts of the accusation. Id., at 205-208. The court imposed a sentence of one year and a $1,000 fine on each count, the periods of incarceration to run concurrently and to be suspended upon payment of the fines. Id., at 16-17, 209. After a subsequent hearing, the court denied an amended motion for a new trial.6

Petitioner took an appeal to the Court of Appeals of the State of Georgia. There he argued: First, the evidence was insufficient. Second, the trial court committed several First Amendment errors, namely, that the film as a matter of law was not obscene, and that the jury instructions incorrectly explained the standard of scienter, the definition of obscenity, and the scope of comm nity standards. Third, the seizures of the films were illegal. Fourth, the convictions on both counts had placed petitioner in double jeopardy because he had shown only one motion picture. Fifth, the use of the five-member jury deprived him of his Sixth and Fourteenth Amendment right to a trial by jury. Id., at 222-224.

Page 228

The Court of Appeals rejected petitioner's contentions. 138 Ga.App. 530, 227 S.E.2d 65 (1976). The court independently reviewed the film in its entirety and held it to be "hard core pornography" and "obscene as a matter of constitutional law and fact." Id., at 532-533, 227 S.E.2d, at 67-68. The evidence was sufficient to support the jury's conclusion that petitioner possessed the requisite scienter. As manager of the theater, petitioner had advertised the movie, had sold tickets, was present when the films were exhibited, had pressed the button that allowed entrance to the seating area, and had locked the door after each arrest. This evidence, according to the court, met the constructive-knowledge standard of § 26-2101. The court found no errors in the instructions, in the issuance of the warrants, or in the presence of the two convictions. In its consideration of the 5-person-jury issue, the court noted that Williams v. Florida had not established a constitutional minimum number of jurors. Absent a holding by this Court that a five-person jury was constitutionally inadequate, the Court of Appeals considered itself bound by Sanders v. State, 234 Ga. 586, 216 S.E.2d 838 (1975), cert. denied, 424 U.S. 931, 96 S.Ct. 1145, 47 L.Ed.2d 340 (1976), where the constitutionality of the five-person jury had been upheld. The court also cited the earlier case of McIntyre v. State, 190 Ga. 872, 11 S.E.2d 5 (1940), a holding to the same general effect but without elaboration.

The Supreme Court of Georgia denied certiorari. App. 26.

In his petition for certiorari here, petitioner raised three issues: the unconstitutionality of the five-person jury; the constitutional sufficiency of the jury instructions on scienter and constructive, rather than actual, knowledge of the contents of the film; and obscenity vel non. We granted certiorari. 429 U.S. 1071, 97 S.Ct. 807, 50 L.Ed.2d 789 (1977). Because we now hold that the five-member jury does not satisfy the jury trial guarantee of the Sixth Amendment, as applied to the States through the Fourteenth, we do not reach the other issues.

Page 229

II

The Fourteenth Amendment guarantees the right of trial by jury in all state nonpetty criminal cases. Duncan v. Louisiana, 391 U.S. 145, 159-162, 88 S.Ct. 1444, 1452-1454, 20 L.Ed.2d 491 (1968). The Court in Duncan applied this Sixth Amendment right to the States because "trial by jury in criminal cases is fundamental to the American scheme of justice." Id., at 149, 88 S.Ct., at 1447. The right attaches in the present case because the maximum penalty for violating § 26-2101, as it existed at the time of the alleged offenses, exceeded six months' imprisonment.7 See Baldwin v. New York, 399 U.S. 66, 68-69, 90 S.Ct. 1886, 1887-1888, 26 L.Ed.2d 437 (1970) (opinion of White, J.).

In Williams v. Florida, 399 U.S., at 100, 90 S.Ct., at 1905, the Court reaffirmed 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 aga nst the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.' Duncan v. Louisiana, [391 U.S.,] at 156, 88 S.Ct., at 1451." See Apodaca v. Oregon, 406 U.S. 404, 410, 92 S.Ct. 1628, 1632, 32 L.Ed.2d 184 (1972) (opinion of White, J.). This purpose is attained by the participation of the community in determinations of guilt and by the application of the common sense of laymen who, as jurors, consider the case. Williams v. Florida, 399 U.S., at 100, 90 S.Ct., at 1905.

Williams held that these functions and this purpose could be fulfilled by a jury of six members. As the Court's opinion in that case explained at some length, id., at 86-90, 90 S.Ct., at 1898-1900, common-law juries included 12 members by historical accident, "unrelated to the great purposes which gave rise to the jury in the

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first place." Id., at 89-90, 90 S.Ct., at 1900. The Court's earlier cases that had assumed the number 12 to be constitutionally compelled were set to one side because they had not considered history and the function of the jury.8 Id., at 90-92, 90 S.Ct., at 1900-1901. Rather than requiring 12 members, then, the Sixth Amendment mandated a jury only of sufficient size to promote group deliberation, to insulate members from outside intimidation, and to provide a representative...

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213 practice notes
  • Dunagin v. City of Oxford, Miss., Nos. 80-3762
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 31, 1983
    ...S.Ct. 3348, 3355 n. 9, 73 L.Ed.2d 1113 (1982) (the effect upon the child used as a subject for pornographic materials); Ballew v. Georgia, 435 U.S. 223, 231 n. 10, 233 n. 11, 98 S.Ct. 1029, 1034 n. 10, 1035 n. 11, 55 L.Ed.2d 234 (1978) (effect of the size of jury upon deliberation and verdi......
  • People v. Fields, Cr. 21126
    • United States
    • United States State Supreme Court (California)
    • December 29, 1983
    ...could contend that the exclusion of this group impairs the purpose and function of a criminal jury. (See Ballew v. Georgia (1978) 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (five-person jury unconstitutional.) Finally, he could contend that the exclusion abridges his right to a jury chosen......
  • People v. Smith, No. B162023.
    • United States
    • California Court of Appeals
    • July 24, 2003
    ...the Court wanted to preserve. ".... Both the Supreme Court's recent jury trial jurisprudence and its findings in Ballew [v. Georgia (1971) 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed. 234 concerning the relative reliability of larger factfinding bodies ... combined with the increasing convergence ......
  • State v. Avery, No. 34
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • February 1, 1980
    ...to the accurate application of the common sense of the community to the facts of any given case," [299 N.C. 143] Ballew v. Georgia, 435 U.S. 223, 234, 98 S.Ct. 1029, 1036, 55 L.Ed.2d 234 (1978), it is the Effect of group exclusion which may work an injury of constitutional "When any large a......
  • Request a trial to view additional results
209 cases
  • Dunagin v. City of Oxford, Miss., Nos. 80-3762
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 31, 1983
    ...S.Ct. 3348, 3355 n. 9, 73 L.Ed.2d 1113 (1982) (the effect upon the child used as a subject for pornographic materials); Ballew v. Georgia, 435 U.S. 223, 231 n. 10, 233 n. 11, 98 S.Ct. 1029, 1034 n. 10, 1035 n. 11, 55 L.Ed.2d 234 (1978) (effect of the size of jury upon deliberation and verdi......
  • People v. Fields, Cr. 21126
    • United States
    • United States State Supreme Court (California)
    • December 29, 1983
    ...could contend that the exclusion of this group impairs the purpose and function of a criminal jury. (See Ballew v. Georgia (1978) 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (five-person jury unconstitutional.) Finally, he could contend that the exclusion abridges his right to a jury chosen......
  • People v. Smith, No. B162023.
    • United States
    • California Court of Appeals
    • July 24, 2003
    ...the Court wanted to preserve. ".... Both the Supreme Court's recent jury trial jurisprudence and its findings in Ballew [v. Georgia (1971) 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed. 234 concerning the relative reliability of larger factfinding bodies ... combined with the increasing convergence ......
  • State v. Avery, No. 34
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • February 1, 1980
    ...to the accurate application of the common sense of the community to the facts of any given case," [299 N.C. 143] Ballew v. Georgia, 435 U.S. 223, 234, 98 S.Ct. 1029, 1036, 55 L.Ed.2d 234 (1978), it is the Effect of group exclusion which may work an injury of constitutional "When any large a......
  • Request a trial to view additional results
4 books & journal articles
  • Civil Liberties Voting Patterns in the Burger Court, 1975-78
    • United States
    • Political Research Quarterly Nbr. 34-2, June 1981
    • June 1, 1981
    ...(1980); Central Hudson Gas & ElectricCorporation v. Public Service Commission of New York, 48 U.S.L.W. 4783 (1980.) 44Ballew v. Georgia, 98 S.Ct. 1029 (1978) (five-member juries); Nebraska Press Association v. 427 U.S. 540 (1976) (First Amendment, prior restraints); Marks v. U.S., 430 U.S. ......
  • The Gag Order: Asphyxiating the First Amendment
    • United States
    • Political Research Quarterly Nbr. 34-3, September 1981
    • September 1, 1981
    ...33 Gordon Bermant et al., "The Logic of Simulation in Jury Research, Criminal Justice and Behavior 1 (1974): 224-33. 34Ballew v. Georgia, 98 S. Ct. 1029, 1038 For example, James Davis et al., "The Decision Processes of 6- and 12-person Mock Juries Assigned Unanimous and Two-Thirds Majority ......
  • Confronting the Brave New World of Antitrust Federalism
    • United States
    • Antitrust Bulletin Nbr. 36-4, December 1991
    • December 1, 1991
    ...The Supreme Court first used the expression inBallew v. Georgia, 435 U.S. 223 (1978) to describe the risksofconvict-ing an innocent person (Type 1 error) and in letting aguilty person gofree (Type 2 error). The NAAG Guidelines seem generally to be less con-cerned with Type 1 errors in the m......
  • Juror Decision Making in Hate Crime Cases
    • United States
    • Criminal Justice Policy Review Nbr. 14-2, June 2003
    • June 1, 2003
    ...Reflections on the past, presentand future ofthe ultimate penal sanction. Durham, NC: Carolina Academic Press.Ballew v. Georgia, 435 U.S. 223 (1978).Bishop, D. M., & Frazier, C. E. (1996). Race effects in juvenile justice decision-making:Findings of statewideanalysis. Journal of Criminal La......

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