Dougherty, J. Michael, Jr.

English

University of Baltimore School of Law

University of Baltimore Law ForumVolume 9Number 1 Fall/Winter 1978/1979 Article 81979Supreme Court Decisions: In Criminal Jury Trials:Six Jurors is the MinimumJ. Michael Dougherty Jr.Follow this and additional works at: http://scholarworks.law.ubalt.edu/lfPart of the Law CommonsThis Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion inUniversity of Baltimore Law Forum by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information,please contact snolan@ubalt.edu.Recommended CitationDougherty, J. Michael Jr. (1979) "Supreme Court Decisions: In Criminal Jury Trials: Six Jurors is the Minimum," University ofBaltimore Law Forum: Vol. 9: No. 1, Article 8.Available at: http://scholarworks.law.ubalt.edu/lf/vol9/iss1/8FORUMSupreme Court DecisionsIn Criminal Jury Trials:Six Jurors is the MinimumOn March 21, 1978, the Supreme Court ruled unanimouslythat in criminal cases a trial with less than six jurors is uncon-stitutional. In Ballew v. Georgia, 435 U.S. 223 (1978), the Courtagreed that the defendant's obscenity conviction by a fiveperson jury deprived him of his right to trial by jury guaranteedby the sixth and fourteenth amendments.In November of 1973, Claude Ballew, manager of the ParisArt Adult Theatre, exhibited the motion picture film entitled"Behined The Green Door". Subsequently, Ballew wascharged with two counts of distributing obscene materials inviolation of Ga. Code §26-2101 (1972). Pursuant to the GeorgiaConstitutioni which prescribed a minimum of five jurors for allcourts except superior courts, Ballew was convicted on bothcounts by a five person jury. On appeal, the Court of Appeals ofGeorgia rejected Ballew's contention that a trial before a jury ofless than six persons was unconstitutional (Ballew u. State, 138Ga. App. 530, 227 S.E. 2d 65, 69 (1976), and added that it wasbound by Sanders u. State, 234 Ga. 586,216 S.E. 2d 838 (1975),cert. denied 424 U.S. 931 (1976), in which the Supreme Courtof Georgia upheld the constitutionality of the five person jury.On certiorari, the United States Supreme Court deliberatedthe sole issue of "whether a state criminal trial to a jury of onlyfive persons deprives the accused of the right to trial by juryguaranteed to him by the sixth and fourteenth amendments."Ballew v. Georgia, 435 U.S. 223, 224 (1978).THE SIXTH AMENDMENTMr. Justice Blackmun announced the principal opinion ofthe court and was joined by Mr. Justice Stevens. Mr. JusticeBlackmun noted that the sixth amendment was madeapplicable to the states through the fourteenth amendment inDuncan v. Louisiana, 391 U.S. 145 (1968), because a "trial byjury in criminal cases is fundamental to the American scheme ofjustice." Id. at 149. In Duncan, the Court emphasized that thesalient purpose of the right to a jury trial is to prevent oppres-sion by the Government (Id. at 155) and that this can beachieved by having the community participate in the determi-nations of guilt.The issue of how many jurors are mandated by the sixthamendment was confronted by the Court in Williams u.Florida, 399 U.S. 78 (1970). In Williams, the Supreme Courtruled that while common law juries were composed of a fixednumber of twelve persons, this feature "appears to have been a'GA. CONST. art. 6, §16 1, codified as GA. CODE §2.5101 (1973).historical accident unrelated to the great purpose which gaverise to the jury in the first place." Id. at 89-90. Therefore, thecourt held that a twelve member jury is not an indispensablecomponent of the sixth amendment. The sixth amendment re-quires that a jury be "large enough to promote group deliber-ation, free from outside attempts at intimidation, and to providea fair possibility for obtaining a representative cross-section ofthe community." Id. at 100. In sum, the Court ruled that a sixperson jury passed constitutional muster but refrained fromexpressing judgment on juries with less than six jurors.RECENT EMPIRICAL DATABy 1970, empirical research evaluating jury performance wasexiguous. However, between 1970 and 1977 numerousscholarly studies of juries and effect of their size upon their verdicts were generated.2 Mr. Justice Blackmun commented thatthe studies "[raised] significant questions about the wisdomand constitutionality of a reduction below six." 435 U.S. at 232.For example, recent empirical data indicate that as juriesdecrease in size, the less likely they are to foster effective groupdeliberation. Likewise, statistical studies reveal that "the risk ofconvicting an innocent person... rises as the size of the jurydiminishes. Because the risk of not convicting a guilty person... increases with the size of the panel, an optimal jury can beselected as a function of the interaction between the two risks."Id. at 234. Also, progressively smaller juries hinder the repre-sentation of minority viewpoints of the community.Concomitantly, "if the smaller and smaller juries will lack con-sistency, as the cited studies suggest, then the common senseof the community will not be applied equally in like cases." Id. at242.Thus, after surveying a host of scholarly studies, Mr. JusticeBlackmun concluded that "the purpose and functioning of thejury in a criminal trial is seriously impaired, and to a constitu-tional degree, by a reduction in size to below six members." 435U.S. at 239. The contention that the utilization of juries withless than six members saves court time and money was not ofsufficient significance to offset the substantial threat to sixthand fourteenth amendment guarantees.AVOIDING STATISTICAL STUDIESWhile all nine justices agreed that a five person jury was too'E.g., Note, Six-Member and Twelve Member Juries: An Empirical Study of TrialResults, 6 U. MICH J. L. REFORM 671 (1973), Lempert, Uncouering "Nondis-cernible" Differences: Empirical Research and the Jury-Size Cases, 73MICH L.REV 643 (1975); Zeisel and Diamond, "Convincing Empirical Evidence" on theSix Member Jury, 41 U. CHI L. REV. 281 (1974); Bogue andFritz, TheSix ManJury, 17 S. DAK L. REV. 285 (1972).small to satisfy the sixth and fourteenth amendments' guaran-tee of a right to trial by jury, the remaining seven justicesdeclined to base their decisions on incipient social science data.Mr. Justice White concurred in the judgment because heagreed that a jury of less than six persons would fail to repre-sent the sense of the community and thus fail to achieve a faircross-section of the community. Justice Powell, joined by ChiefJustice Burger and Justice Rehnquist, concurred in the judg-ment but noted that Justice Blackmun's heavy reliance onnumerology was unwarranted. Mr. Justice Brennan, joined byMr. Justice Stewart and Mr. Justice Marshall, argued that whilethe sixth and fourteenth amendments mandate juries incriminal cases with more than five members, Ballew should notbe subjected to a new trial since the Georgia law was "over-broad and therefore facially unconstitutional." Id., at 246.In conclusion, the Court felt that juries with six or moremembers represent a fair cross-section of the community,promote unbiased decision- making, and thus safeguard theconstitutional guarantees of the sixth and fourteenth amend-ments.In passing it should be mentioned that in Maryland, the Mary-land Declaration of Rights 3 grants to the accused the right tojuror unanimity in criminal trials. However, the defendant, withthe court's consent and the prosecutor's consent, may waiveunanimity. 4 Concomitantly, Maryland Rule 751 states that incriminal trials the parties may stipulate to a jury of less thantwelve members. Although the Supreme Court has sanctionedless than unanimous verdicts with twelve member juries, theCourt will eventually have to address the issue of unanimity forjuries with less than twelve members.-J. Michael Dougherty, Jr.Photo by JJR.3MD. DEC. OF RIGHTS art. 21.4State v. McKay, 280 Md. 558, 375 A. 2d.228 (1977). See, 7 U. BALT. L. REV. 130(1977).The Press v.The ProsecutionConstitutional struggle between the government and thepress is not a novel phenomenon. The interests of the two oftenconflict and as a result of a recent Supreme Court decision, thefriction seems likely to continue. In Zurcher v. Stanford Daily,98 S. Ct. 1970 (1978), the Justices were confronted with thequestion of whether the government, pursuant to a searchwarrant, may constitutionally seize evidence from a newspaperwhen the paper is not suspected of criminal activity.The Supreme Court decided that a newspaper unsuspectedof involvement in a crime cannot automatically and absolutelyclaim immunity from a search warrant for evidence related tothat same crime. By a vote of 5-3, Justice Brennan notparticipating, the Court held that when a place to be searchedis occupied by a person not then a suspect, a warrant to searchfor evidence reasonably believed to be present can be issueddespite the absence of unusual circumstances. The essentialelement is the reasonable cause to believe that the objects to besought are indeed present on the premises into which entry ismade.This decision affirmed Stanford Daily v. Zurcher, 550 F2d.464 (9th Cir. 1977), which required the existence of probablecause to believe that the owner of the property to be searchedwould have disregarded the court order not to remove ordestroy evidence as a basis for issuance of the search warrant.Both the Court of Appeals and the District Court, 353 F.Supp.124 (N.D. Cal. 1972) emphasized the absence of suspectedcriminal involvement on the part of the newspaper reporter. Insuch a case, probable cause to think that evidence of a crime islocated on the property is not alone sufficient to justify theissuance of a warrant; a threat concerning the removal or de-struction of evidence must be clearly shown.On Friday, April 9, 1971, a student demonstration was heldat the Stanford University Hospital and culminated in thedemonstrators' forcible occupation of the administrativeoffices. The police departments of the City of Palo Alto andSanta Clara County were called to remove the students. Afterseveral attempts were made to persuade the demonstrators toleave peacefully, the police broke through one of the barri-cades that had been erected by the protestors at both the eastand west ends of the corridor adjacent to the administrativeoffices. As the police moved through the west end, theprotestors emerged from the east end with sticks and attackedthe police stationed there. All nine of the policemen wereinjured.A photographer for the Stanford Daily News was alsolocated at the east end of the corridor. On April 11, theStanford Daily carried a story about the demonstration,complete with pictures and a byline of a Daily staff member. OnApril 12, the District Attorney for Santa Clara County secureda warrant for the immediate search of the Daily offices for nega-tives, film and pictures of the April 9th event. The District At-torney claimed that he had justifiable, reasonable and probablecause to believe that he could locate evidence relevant to theidentity of the individuals who attacked the Hospital's admini-strative offices. The search included the photo lab, filingcabinets, desks and waste paper baskets but excluded lockeddrawers and rooms. Notes were read and photos were foundbut nothing was removed.The Stanford Daily News argued that the actionsnevertheless threatened its ability to gather, analyze, and dis-seminate news. Specifically, the Daily alleged that the search

Supreme Court Decisions: In Criminal Jury Trials: Six Jurors is the Minimum

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Supreme Court Decisions: In Criminal Jury Trials: Six Jurors is the Minimum

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