noting that prominent concerns in Ballew, which found criminal trial by five-member jury constitutionally infirm, were that smaller jury leads to less accurate factfinding and greater risk of convicting innocent person, decreases likelihood of hung jury to detriment of defendant, and reduces odds of adequate minority representation
How later courts described this case
- noting that prominent concerns in Ballew, which found criminal trial by five-member jury constitutionally infirm, were that smaller jury leads to less accurate factfinding and greater risk of convicting innocent person, decreases likelihood of hung jury to detriment of defendant, and reduces odds of adequate minority representation
- reversing decision of Louisiana Supreme Court that United States Supreme Court’s decision holding nonunanimous juries for nonpetty offenses unconstitutional should be applied only to juries empaneled after the date of the decision
- made retroactive the decision in Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979), which held that conviction of a non-petty criminal offense by a non-unanimous six-person jury violates the defendant's sixth and fourteenth amendment right to trial by jury
- made retroactive the decision in Burch v. Louisiana, 441 *15 U.S. 130, 60 L.Ed. 2d 96 (1979), which held that conviction of a non-petty criminal offense by a non-unanimous six-person jury violates the defendant’s sixth and fourteenth amendment right to trial by jury
Written by the judges who cited it.
The opinion
Mr. Justice Rehnquist,
with whom The Chief Justice and Mr. Justice White join,
dissenting.
I am in agreement with the Court on the content of the applicable standards for gauging the need for retroactivity, but I cannot concur in the Court’s application of those standards in this case. The most important question here is whether it is probable that the Louisiana juries convicting on a vote of 5 to 1 convicted innocent persons. As the Court *338 states, “only when an assessment of those probabilities indicates that the condemned practice casts doubt upon the reliability of the determinations of guilt in past criminal cases must the new procedural rule be applied retroactively.” Ante, at 329. Neither our precedents nor common experience supports the Court’s conclusion that the 5-to-l vote is inherently unreliable. Just as I think the Court has overstated the probabilities of jury error, I think it has unfairly understated the State’s reliance on our prior law and the burdens on the administration of the Louisiana justice system which will be associated with today’s ruling.
A
In Williams v. United States, 401 U. S. 646, 655, n. 7 (1971), we held that retroactivity is only appropriate where the former practice “presents substantial likelihood that the results of a number of those trials were factually incorrect.” In Hankerson v. North Carolina, 432 U. S. 233, 243 (1977), we similarly concluded that the “major purpose” of the new rule must be to correct a process which “substantially impairs its truth-finding function” raising “serious questions about the accuracy of guilty verdicts in past trials” before a rule should be retroactively imposed. Quite simply, when five-sixths of the deliberating jurors reach a finding of guilt, I do not think that there is a substantial probability that their decision was wrong.
The Court stresses the part of Mr. Justice Blackmun’s opinion in Ballew v. Georgia, 435 U. S. 223 (1978), suggesting that some studies had indicated that the reliability of the truth-finding process declines when the jury size is reduced. But I do not think that those citations can be used here to support the conclusion that the jury verdicts in issue were probably inaccurate. First, the opinion in Ballew relies heavily on the conclusions that a jury of only five is too small in number to ensure effective deliberation and to ensure that someone among the group will have memory abilities suffi *339 cient to aid the jury in those deliberations. Id., at 241 . These concerns are satisfied when the jury is composed of six members, even if one of those members is in the dissent. In fact, as indicated by Johnson v. Louisiana, 406 U. S. 356, 361 (1972), the presence of a dissenting juror strongly supports the inference that the jury has engaged in meaningful deliberation:
“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.”
Thus the jury that convicted petitioner satisfied the requirements of jury deliberation that the Court in Ballew found so critical. Further, our cases have indicated quite clearly that the degree of persuasion evidenced by a 5-to-l vote is sufficient to meet the requirement that guilt be proved beyond a reasonable doubt. In Johnson, supra, this Court held that a 9-to-3 verdict could satisfy due process, or in other words, satisfy the requirement that guilt be proved beyond a reasonable doubt. The degree of persuasion found acceptable there was far less impressive than that demonstrated by the jury which convicted petitioner. And yet we said that guilt was *340 proved beyond a reasonable doubt in Johnson . I think here, too, we must then conclude that guilt was proved beyond a reasonable doubt. Since that is true, there has been no constitutionally unacceptable risk of erroneous convictions and Burch need not be applied retroactively.
There is a further weakness in the Court’s estimation of the probabilities. We simply have no way of knowing whether the person voting to acquit would have held firm with further pressure by his fellow jurors. The Court’s speculation about what would have happened had unanimity been required of Louisiana’s six-man juries amounts to just that: speculation. As long as this Court has approved “Allen charges” in federal cases over which it may exercise its supervisory authority, it is difficult to say that a holdout juror might not ultimately have been persuaded by the five-member majority.
The Court’s ruling is also at odds with our decisions in Gosa v. Mayden, 413 U. S. 665 (1973), and DeStefano v. Woods, 392 U. S. 631 (1968). In both of those cases, the Court declined to give retroactive effect to rulings that the right to jury trial had been totally denied under circumstances where our system of fairness required that it be afforded. Nevertheless, as we stated in DeStefano , the “values implemented by the right to jury trial would not measurably be served by requiring retrial of all persons convicted in the past by procedures not consistent with the Sixth Amendment right to jury trial.” Id., at 634 . The deprivations addressed in those cases were no less based on procedural reliability than was the decision in Burch v. Louisiana, 441 U. S. 130 (1979).
B
I also think that the Court has unduly minimized Louisiana’s reliance on pre-Burch standards, and greatly underestimated the impact its ruling will have on the Louisiana judicial system. We have every reason to credit Louisiana with the presumption that its law was enacted in good faith. Prior to 1974, the Louisiana Constitution allowed for conviction by *341 unanimous five-person juries for certain offenses. La. Const., Art. 7, §41 (1921). In 1974 this constitutional provision was replaced with the nonunanimous six-person jury provision. The coordinator of legal research for the Constitutional Convention explained in 1974 that he believed this provision satisfied the Federal Constitution, reasoning:
“A six-man jury was upheld in Williams v. Florida, 399 U. S. 78 (1970). If 75 per cent concurrence (%2) was enough for a verdict as determined in Johnson v. Louisiana, 406 U. S. 356 (1972), then requiring 83 per cent concurrence (%) ought to be within the permissible limits of Johnson.” Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La. L. Rev. 1 , 56, n. 300 (1974).
The record similarly suggests that the administrative impact is substantial. In the first four months of 1979 in just Orleans Parish alone, 39 defendants were tried by six-person juries. Brief for Respondent 24, n. 43. The various courts in Louisiana apparently do not necessarily keep a record of the jury vote. Id., at 28, n. 49 . With this large number of six-person jury trials, the potential for disruption is substantial. And although the Court states that the decision will only have an impact where the defendant was “in fact” convicted by less than six, how is it to be established what “in fact” occurred without clear records? Ante, at 336. As stated in the opinion of Mr. Justice Blackmun in Gosa, supra:
“Wholesale invalidation of convictions rendered years ago could well mean that convicted persons would be freed without retrial, for witnesses ... no longer may be readily available, memories may have faded, records may be incomplete or missing, and physical evidence may have disappeared. Society must not be made to tolerate a result of that kind when there is no significant question concerning the accuracy of the process by which judgment *342 was rendered or, in other words, when essential justice is not involved.” 413 U. S., at 685 .
Since Burch and Ballew held little more than that “lines must be drawn somewhere” 441 U. S., at 137 ; 435 U. S., at 239 , Louisiana should not be required to retry defendants found guilty by reliable factfinders.