Opinion of the Justices

Decision Date29 June 1971
Citation360 Mass. 877,271 N.E.2d 335
PartiesOPINION OF THE JUSTICES to the Governor.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

The bill is summarized in your request for our opinion as follows: At 'present * * * (D)istrict (C)ourts have * * * jurisdiction, concurrent with the Superior Court, of * * * (most) misdemeanors * * * and of all felonies punishable by imprisonment in a state prison for not more than five years. G.L. c. 218, § 26 (as amended through St.1969, c. 496). The maximum sentence which a (D)istrict (C)ourt may impose is two and one half years in a house of correction (see G.L. (Ter.Ed.) c. 279, § 23). In no case may it sentence to a state prison. G.L. c. 218, § 27. The bill makes no changes in these aspects of the criminal jurisdiction or sentencing power of the (D)istrict (C)ourts.

'The bill does, however, alter procedures in criminal cases within the trial jurisdiction of the (D)istrict (C)ourts as they relate to trial by jury. Under the present law, (D)istrict (C)ourt trial in the first instance takes place before a judge. * * * A convicted defendant may thereafter appeal as of right (G.L. c. 278, § 18, as amended through St.1955, c. 131, § 8) to the Superior Court, and obtain a trial de novo before a jury of twelve. G.L. c. 212, § 6; c. 278, § 2. Alternatively, in certain counties, a defendant convicted of a misdemeanor may elect trial de novo before a jury of six in the (D)istrict (C) ourts. St.1964, c. 143; St.1970, c. 428.

'The bill would eliminate appeal to the Superior Court, and trial de novo before a jury of twelve (or otherwise). Instead, in the case of misdemeanors, the convicted defendant would have his right of jury trial satisfied by * * * (a) trial de novo (on appeal) before a jury of six in the (D)istrict (C) ourts. In the case of felonies within the trial jurisdiction of the (D)istrict (C)ourts, the defendant would elect, before initial trial, to claim or waive trial by jury; and in the former case, trial would be held in the first instance before a (D)istrict (C)ourt judge Your request states that you are 'in doubt * * * whether the provisions of this bill providing for six-man juries comply with' art. 12 of the Declaration of Rights of the Constitution of the Commonwealth. You therefore seek our opinion.

sitting with a six-man jury. * * * Therefore, as to both misdemeanors and felonies where the (D)istrict (C) ourt has jurisdiction to try the defendant, he would have no opportunity for trial before a jury of twelve (in the Superior Court).'

The question is:

'In criminal cases subject to trial in the (D)istrict (C)ourts, where the defendant has a constitutional right to jury trial, can this right be satisfied by trial before a jury of six rather than a jury of twelve?'

In response to our invitation to interested persons to file briefs not later than June 24, 1971, briefs or memoranda were filed by or in behalf of the Attorney General; Massachusetts District Attorneys' Association; Mr. George G. Burke, District Attorney, Norfolk County; Massachusetts Defenders Committee; and Mr. Lawrence D. Shubow. The Institute of Judicial Administration, Inc. and others have helpfully placed at our disposal material on the use in other States of Juries of less than twelve members.

1. Because of the recent case of Williams v. Florida, 399 U.S. 78, 86--103, 90 S.Ct. 1893, 26 L.Ed.2d 446, no question now arises under the Sixth Amendment to the Constituiton of the United States with respect to the use of a six-man jury in State court criminal cases in which a defendant is entitled to a jury trial. In Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491, it had been held that the Sixth and Fourteenth Amendments, read together, guarantee (see 399 U.S. 78, 86, 90 S.Ct. 1893, 1898, 26 L.Ed.2d 446) 'a right to trial by jury, in all (State) criminal cases that--were they to be tried in a federal court--would come within the Sixth Amendment's' protection. Essentially, this means that the defendant, in all trials for offences punishable by imprisonment for six months or more, may insist upon a jury. See Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437.

The Williams case (399 U.S. 78, 86--98, 90 S.Ct. 1893, 26 L.Ed.2d 446) traced in outline (with references to the relevant authorities) the origins of the general common law practice, prior to the Revolution, of having trial by a twelve-man petit jury. The Supreme Court in 1970 decided that it was not compelled, either by history or by precedent, to decide that the Sixth Amendment adopted and embodied the pre-Revolutionary practice. The court said (at pp. 102--103, 90 S.Ct. at p. 1907), '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.' * * * To read the Sixth Amendment as forever codifying a feature (of common law jury trial practice) so incidental to the real purpose of the Amendment is to ascribe a blind formalism to the Framers (of the Constition) 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' (emphasis supplied).

Mr. Justice White, speaking for the court in the Williams case, arrived at this conclusion by the following reasoning (at pp. 98--102, 90 S.Ct. at pp. 1905--1906): '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 * * *. But there is absolutely no indication in 'the intent of the Framers' of an explicit decision to equate the constitutional and (the) common law characteristics of the jury.

* * * The relevant inquiry * * * must be the function that the particular feature (of a common law jury) 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.' He went on to say, 'The purpose of the jury trial * * * is to prevent oppression by the Government. * * * (T)he 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 * * * (which) 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 * * * (which) 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 * * * 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.'

Mr. Justice White (pp. 101--102, 90 S.Ct. 1893) also discussed whether different results are likely to follow the use of a six-man jury instead of a twelve-man jury. He concluded (p. 101, 90 S.Ct. p. 1906) that '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' and (p. 102, 90 S.Ct. p. 1907) that 'the concern that the cross-section will be significantly diminished if the jury is decreased in size * * * seems * * * unrealistic.'

2. This reasoning of Mr. Justice White applies with essentially equal force to art. 12 of the Declaration of Rights found in the Constitution of the Commonwealth. Article 12 reads in part, 'And the legislature shall not make any law, that shall subject any person to a capital or infamous punishment, excepting for the government of the army and navy, without trial by jury.' This provision contains no express reference to the number of persons to serve on a petit jury.

Doubtless, prior to the Revolution, a petit jury usually meant a jury of twelve. An early indication of the customary practice is found in Laws and Liberties of Massachusetts (1648), Huntington Library Reprint (1929), p. 32. There a marginal note, 'Tryall for life & by 12 me,' appears next to par. 2 under the heading (p. 31) 'Juries Jurors.' The paragraph itself, however, is in general terms (with no mention of the number of jurors), '2 Nor shall any tryall passe upon any for life or bannishment but by a special Jurie so summoned for that purpose, or by the General Court.' A specification of twelve jurors does appear in the Province Laws 1692--1693, c. 11, arts. 6 and 7 (see also c. 9, § 2). These statutes, however, were 'disallowed' by the Privy Council on August 22, 1695. See for later general enactments, Province Laws 1699--1700, cc. 1--5, inclusive. See also Charters and General Laws of the Colony and Province, c. 59 (1699), pp. 326--328; Grinnell, 'To What Extent is the Right to Jury Trial Optional in Criminal Cases in Massachusetts?' 8 Mass.L.Q. (No. 5) 7. The provisions of what is now art. 12 of the Declaration of Rights, in the drafts reprinted in the Journal of the Constitutional Convention (1779--1780), are expressed only in general terms, without specification of any...

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