Johnson v. Louisiana 8212 5035, No. 69

CourtUnited States Supreme Court
Writing for the CourtWHITE
Citation92 S.Ct. 1620,32 L.Ed.2d 152,406 U.S. 356
PartiesFrank JOHNSON, Appellant, v. LOUISIANA. —5035
Docket NumberNo. 69
Decision Date01 March 1971

406 U.S. 356
92 S.Ct. 1620
32 L.Ed.2d 152
Frank JOHNSON, Appellant,



No. 69—5035.
Argued March 1, 1971.
Reargued Jan. 10, 1972.
Decided May 22, 1972.


A warrantless arrest for robbery was made of appellant at his home on the basis of identification from photographs, and he was committed by a magistrate. Thereafter he appeared in a lineup, at which he was represented by counsel, and was identified by the victim of another robbery. He was tried for the latter offense before a 12-man jury and convicted by a nine-to-three verdict, as authorized by Louisiana law in cases where the crime is necessarily punishable at hard labor. Other state law provisions require unanimity for five-man jury trials of offenses in which the punishment may be at hard labor and for 12-man jury trials and capital cases. The Louisiana Supreme Court affirmed the conviction, rejecting appellant's challenge to the jury-trial provisions as violative of due process and equal protection and his claim that the lineup identification was a forbidden fruit of an invasion of appellant's Fourth Amendment rights. Appellant conceded that under Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, which was decided after his trial began and which has no retroactive effect, the Sixth Amendment does not apply to his case. Held:

1. The provisions of Louisiana law requiring less-than-unanimous jury verdicts in criminal cases do not violate the Due Process Clause for failure to satisfy the reasonable-doubt standard. Pp. 358—363.

(a) The mere fact that three jurors vote to acquit does not mean that the nine who vote to convict have ignored their instructions concerning proof beyond a reasonable doubt or that they do not honestly believe that guilt has been thus proved. Pp. 360—362.

(b) Want of jury unanimity does not alone establish reasonable doubt. Pp. 362—363.

2. The Louisiana legal scheme providing for unanimous verdicts in capital and five-man jury cases but for less-than-unanimous verdicts otherwise, and which varies the difficulty of proving guilty with the gravity of the offense, was designed to serve the rational purposes of 'facilitat(ing), expedit(ing), and reduc(ing) expense in the administration of justice,' and does not constitute an invidious classification violative of equal protection. Pp. 363—365.

Page 357

3. Since no evidence constituting the fruit of an illegal arrest was used at appellant's trial, the validity of his arrest is not at issue and the lineup was conducted, not by the 'exploitation' of the arrest, but under the authority of appellant's commitment by the magistrate, which purged the lineup procedure of any 'primary taint.' P. 365.

255 La. 314, 230 So.2d 825, affirmed.

Richard A. Buckley, New Orleans, La., for appellant.

Louise S. Korns, New Orleans, La., for appellee.

Mr. Justice WHITE delivered the opinion of the Court.

Under both the Louisiana Constitution and Code of Criminal Procedure, criminal cases in which the punishment is necessarily at hard labor are tried to a jury of 12, and the vote of nine jurors is sufficient to return either a guilty or not guilty verdict.1 The principal question

Page 358

in this case is whether these provisions allowing less-than-unanimous verdicts in certain cases are valid under the Due Process and Equal Protection Clauses of the Fourteenth Amendment.


Appellant Johnson was arrested at his home on January 20, 1968. There was no arrest warrant, but the victim of an armed robbery had identified Johnson from photographs as having committed the crime. He was then identified at a lineup, at which he had counsel, by the victim of still another robbery. The latter crime is involved in this case. Johnson pleaded not guilty, was tried on May 14, 1968, by a 12-man jury and was convicted by a nine-to-three virdict. His due process and equal protection challenges to the Louisiana constitutional and statutory provisions were rejected by the Louisiana courts, 255 La. 314, 230 So.2d 825 (1970), and he appealed here. We noted probable jurisdiction. 400 U.S. 900, 91 S.Ct. 144, 27 L.Ed.2d 137 (1970). Conceding that under Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), the Sixth Amendment is not applicable to his case, see DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968), appellant presses his equal protection

Page 359

and due process claims, together with a Fourth Amendment claim also rejected by the Louisiana Supreme Court. We affirm.


Appellant argues that in order to give substance to the reasonable-doubt standard, which the State, by virtue of the Due Process Clause of the Fourteenth Amendment, must satisfy in criminal cases, see In re Winship, 397 U.S. 358, 363—364, 90 S.Ct. 1068, 1072—1073, 25 L.Ed.2d 368 (1970), that clause must be construed to require a unanimous-jury verdict in all criminal cases. In so contending, appellant does not challenge the instructions in this case. Concededly, the jurors were told to convict only if conviced of guilt beyond a reasonable doubt. Nor is there any claim that, if the verdict in this case had been unanimous, the evidence would have been insufficient to support it. Appellant focuses instead on the fact that less than all jurors voted to convict and argues that, because three voted to acquit, the reasonable-doubt standard has not been satisfied and his conviction is therefore infirm.

We note at the outset that this Court has never held jury unanimity to be a requisite of due process of law. Indeed, the Court has more than once expressly said that '(i)n criminal cases due process of law is not denied by a state law . . . which dispenses with the necessity of a jury of twelve, or unanimity in the verdict.' Jordan v. Massachusetts, 225 U.S. 167, 176, 32 S.Ct. 651, 652, 56 L.Ed. 1038 (1912) (dictum). Accord, Maxwell v. Dow, 176 U.S. 581, 602, 605, 20 S.Ct. 448, 456, 458, 44 L.Ed. 597 (1900) (dictum). These statements, moreover, co-existed with cases indicating that proof of guilt beyond a reasonable doubt is implicit in constitutions recognizing 'the fundamental principles that are deemed essential for the protection of life and liberty.' Davis v. United States, 160 U.S. 469, 488, 16 S.Ct. 353, 358, 40 L.Ed. 499 (1895). See also Leland v. Oregon, 343 U.S. 790, 802 803, 72 S.Ct. 1002, 1009—1010, 96 L.Ed. 1302 (1952) (dissenting opinion); Brinegar

Page 360

v. United States, 338 U.S. 160, 174, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949); Coffin v. United States, 156 U.S. 432, 450—460, 15 S.Ct. 394, 402—404, 39 L.Ed. 481 (1895).2

Entirely apart from these cases, however, it is our view that the fact of three dissenting votes to acquit raises no question of constitutional substance about either the integrity or the accuracy of the majority verdict of guilt. Appellant's contrary argument breaks down into two parts, each of which we shall consider separately: first, that nine individual jurors will be unable to vote conscientiously in favor of guilt beyond a reasonable doubt when three of their colleagues are arguing for acquittal, and second, that guilt cannot be said to have been proved beyond a reasonable doubt when one or more of a jury's members at the conclusion of deliberation still possess such a doubt. Neither argument is persuasive.

Numerous cases have defined a reasonable doubt as one "based on reason which arises from the evidence or lack of evidence." United States v. Johnson, 343 F.2d 5, 6 n. 1 (CA2 1965). Accord, e.g., Bishop v. United States, 71 App.D.C. 132, 138, 107 F.2d 297, 303 (1939); United States v. Schneiderman, 106 F.Supp. 906, 927 (S.D.Cal.1952); United States v. Haupt, 47 F.Supp. 836, 840 (N.D.Ill.1942), rev'd on other grounds, 136 F.2d 661 (CA7 1943). In Winship, supra, the Court recognized this evidentiary standard as "impress(ing) on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue." 397 U.S., at 364, 90 S.Ct., at 1072 (citation omitted). In considering the first branch

Page 361

of appellant's argument, we can find no basis for holding that the nine jurors who voted for his conviction failed to follow their instructions concerning the need for proof beyond such a doubt or that the vote of any one of the nine failed to reflect an honest belief that guilt had been so proved. Appellant, in effect, asks us to assume that, when minority jurors express sincere doubts about guilt, their fellow jurors will nevertheless ignore them and vote to convict even if deliberation has not been exhausted and minority jurors have grounds for acquittal which, if pursued, might persuade members of the majority to acquit. But the mere fact that three jurors voted to acquit does not in itself demonstrate that, had the nine jurors of the majority attended further to reason and the evidence, all or one of them would have developed a reasonable doubt about guilt. We have no grounds for believing that majority jurors, aware of their responsibility and power over the liberty of the defendant, would simply refuse to listen to arguments presented to them in favor of acquittal, terminate discussion, and render a verdict. On the contrary it is far more likely that a juror presenting reasoned argument in favor of acquittal would either have his arguments answered or would carry enough other jurors with him to prevent conviction. A majority will cease discussion and outvote a minority only after reasoned discussion has ceased to have persuasive effect or to serve any other purpose—when a minority, that is, continues to insist upon acquittal without having persuasive reasons in support of its position. At that juncture there is no basis for denigrating the vote of so large a majority of the jury or for refusing to accept their decision as being, at least in their minds, beyond a reasonable doubt. Indeed, at this point, a 'dissenting juror should consider whether his doubt was a reasonable one ....

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1062 practice notes
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