Burch v. State of Louisiana

• Decision Date: 17 April 1979
• Docket Number: No. 78-90,78-90
• Citation: 99 S.Ct. 1623,60 L.Ed.2d 96,441 U.S. 130
• Parties: Daniel BURCH et al., Petitioners, v. STATE OF LOUISIANA
• Court: U.S. Supreme Court

441 U.S. 130

99 S.Ct. 1623

60 L.Ed.2d 96

Daniel BURCH et al., Petitioners,

v STATE OF LOUISIANA.

No. 78-90.

Argued Feb. 22, 1979.

Decided April 17, 1979.

Syllabus

Held: A conviction by a nonunanimous six-person jury in a state criminal trial for a nonpetty offense, as contemplated by provisions of the Louisiana Constitution and Code of Criminal Procedure that permit a conviction by five out of the six jurors, violates the right of an accused to trial by jury guaranteed by the Sixth and Fourteenth Amendments. Pp. 134-139.

(a) Lines must be drawn somewhere if the substance of the jury trial right is to be preserved, and while this line-drawing process "cannot be wholly satisfactory, for it requires attaching different consequences to events which, when they lie near the line, actually differ very little," Duncan v. Louisiana, 391 U.S. 145, 161, 88 S.Ct. 1444, 1453, 20 L.Ed.2d 491, conviction for a nonpetty offense by only five members of a six-person jury presents a threat to preservation of the substance of the jury trial guarantee and justifies requiring verdicts rendered by such juries to be unanimous. Cf. Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234. Pp. 137-138.

(b) The near-uniform judgment of those States utilizing six-member juries in trials of nonpetty offenses that the verdict must be unanimous to convict, provides a useful guide in delimiting the line between those jury practices that are constitutionally permissible and those that are not. P. 138.

(c) The State's substantial interest in reducing the time and expense associated with the administration of its system of criminal justice is insufficient justification for its use of nonunanimous six-person juries. Any benefits that might accrue from the use of such juries, as compared with requiring unanimity, are speculative, at best, and, more importantly, when a State has reduced the size of its juries to the minimum number permitted by the Constitution, the additional authorization of nonunanimous verdicts sufficiently threatens the constitutional principles establishing the size threshold that any countervailing interest of the State should yield. Pp. 138-139.

360 So.2d 831, reversed in part, affirmed in part, and remanded.

Jack Peebles, New Orleans, La., for petitioners.

Louise Korns, New Orleans, La., for respondent.

Mr. Justice REHNQUIST delivered the opinion of the Court.

The Louisiana Constitution and Code of Criminal Procedure provide that criminal cases in which the punishment imposed may be confinement for a period in excess of six months "shall be tried before a jury of six persons, five of whom must concur to render a verdict." ¹ We granted certiorari to decide whether conviction by a nonunanimous six-person jury in a state criminal trial for a nonpetty offense as contemplated by these provisions of Louisiana law violates the rights of an accused to trial by jury guaranteed by the Sixth and Fourteenth Amendments.² 439 U.S. 925, 99 S.Ct. 307, 58 L.Ed.2d 317 (1978).

Petitioners, an individual and a Louisiana corporation, were jointly charged in two counts with the exhibition of two obscene motion pictures.³ Pursuant to Louisiana law, they were tried before a six-person jury, which found both petitioners guilty as charged. A poll of the jury after verdict indicated that the jury had voted unanimously to convict petitioner Wrestle, Inc.,⁴ and had voted 5-1 to convict petitioner Burch. Burch was sentenced to two consecutive 7-month prison terms, which were suspended, and fined $1,000; Wrestle, Inc., was fined $600 on each count.

Petitioners appealed their convictions to the Supreme Court of Louisiana, where they argued that the provisions of Louisiana law permitting conviction by a nonunanimous six-member jury violated the rights of persons accused of nonpetty criminal offenses to trial by jury guaranteed by the Sixth and Fourteenth Amendments.⁵ Though acknowledging that the issue was "close," the court held that conviction by a nonunanimous six-person jury did not offend the Constitution. State v. Wrestle, Inc., 360 So.2d 831, 838 (1978). The court concluded that none of this Court's decisions precluded use of a nonunanimous six-person jury. " 'If 75 percent concurrence (9/12) was enough for a verdict as determined in Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972), then requiring 83 percent concurrence (5/6) ought to be within the permissible limits of Johnson.' " Ibid., quoting Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L.Rev. 1, 56 n. 300 (1974). And our recent decision in Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978), striking down a Georgia law allowing conviction by a unanimous five-person jury in nonpetty criminal cases, was distinguishable in the Louisiana Supreme Court's view:

"[I]n Williams [v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970)] the court held that a six-person jury was of sufficient size to promote adequate group deliberation, to insulate members from outside intimidation, and to provide a representative cross-section of the community. These values, which Ballew held a five-person jury is inadequate to serve, are not necessarily defeated because the six-person jury's verdict may be rendered by five instead of by six persons." 360 So.2d, at 838.

Since the Louisiana Supreme Court believed that conviction by a nonunanimous six-person jury was not necessarily foreclosed by this Court's decisions, it stated that it preferred to "indulg[e] in the presumption of federal constitutionality which must be afforded to provisions of our state constitution." Ibid.

We agree with the Louisiana Supreme Court that the question presented is a "close" one. Nonetheless, we believe that conviction by a nonunanimous six-member jury in a state criminal trial for a nonpetty offense deprives an accused of his constitutional right to trial by jury.

Only in relatively recent years has this Court had to consider the practices of the several States relating to jury size and unanimity. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), marked the beginning of our involvement with such questions. The Court in Duncan held that because trial by jury in "serious" criminal cases is "fundamental to the American scheme of justice" and essential to due process of law, the Fourteenth Amendment guarantees a state criminal defendant the right to a jury trial in any case which, if tried in a federal court, would require a jury under the Sixth Amendment. Id., at 149, 158-159, 88 S.Ct., at 1447, 1452-1453.⁶

Two Terms later in Williams v. Florida, 399 U.S. 78, 86, 90 S.Ct. 1893, 1898, 26 L.Ed.2d 446 (1970), the Court held that this constitutional guarantee of trial by jury did not require a State to provide an accused with a jury of 12 members and that Florida did not violate the jury trial rights of criminal defendants charged with nonpetty offenses by affording them jury panels comprised of only 6 persons. After canvassing the common-law development of the jury and the constitutional history of the jury trial right, the Court concluded that the 12-person requirement was "a historical accident" and that there was no indication that the Framers intended to preserve in the Constitution the features of the jury system as it existed at common law. Id., at 89-90, 90 S.Ct., at 1899-1900. Thus freed from strictly historical considerations, the Court turned to examine the function that this particular feature performs and its relation to the purposes of jury trial. Id., at 99-100, 90 S.Ct., at 1905-1906. The purpose of trial by jury, as noted in Duncan, is to prevent government oppression by providing a "safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge." 391 U.S., at 156, 88 S.Ct., at 1451. Given this purpose, the Williams Court observed that the jury's essential feature 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." 399 U.S., at 100, 90 S.Ct., at 1906. These purposes could be fulfilled, the Court believed, so long as the jury was of a sufficient size to promote group deliberation, free from outside intimidation, and to provide a fair possibility that a cross section of the community would be represented on it. Ibid. The Court concluded, however, that there is "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." Ibid. (emphasis added).⁷

A similar analysis led us to conclude in 1972 that a jury's verdict need not be unanimous to satisfy constitutional requirements, even though unanimity had been the rule at common law. Thus, in Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972), we upheld a state statute providing that only 10 members of a 12-person jury need concur to render a verdict in certain noncapital cases.⁸ In terms of the role of the jury as a safeguard against oppression, the plurality opinion perceived no difference between those juries required to act unanimously and those permitted to act by votes of 10 to 2. 406 U.S., at 411, 92 S.Ct., at 1633. Nor was unanimity viewed by the plurality as contributing materially to the exercise of the jury's common-sense judgment or as a necessary precondition to effective application of the requirement that jury panels represent a fair cross section of the community. Id., at 410, 412, 92 S.Ct., at 1632, 1633.⁹

Last Term, in Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978), we considered whether a jury of less than six members passes constitutional scrutiny, a question that was explicitly reserved in Williams v. Florida. Se...