Amicus Brief — Burch v. Louisiana

IN THE

Supreme Court of the Hnited States :

No. 78-90 : .

>

DanieL Burcu and Wresttez, Inc.,

Petitioners,

—_—Vi—

State or Lovisiana,

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF LOUISIANA

BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION

AND THE AMERICAN CIVIL LIBERTIES UNION

OF LOUISIANA, AMICI CURIAE

Leon FRrepMANn

Hofstra University

School of Law

Hempstead, New York 11550

Cuartes 8, Sims

Bruce J. Ennis

c/o American Civil Liberties

Union Foundation

22 East 40th Street

New York, New York 10016

Attorneys for Amici Curiae

TABLE OF CONTENTS

Page

Table of Authorities Lente eR ©

Interest of Amici Curiae ....cccccce . 1

STATEMENT OF THE CASE eecccesoses 3

SUMMARY OF ARGUMENT XX _..... coecce 5

ARGUMENT :

I. THIS COURT SHOULD RECONSIDER ITS

HOLDINGS IN WILLIAMS V. FLORIDA,

JOHNSON V. L

V. OREGON, AND SHOULD RE-ESTABLISH

THE NECESSITY, UNDER THE SIXTH AND

FOURTEENTH AMENDMENTS, FOR TWELVE-

PERSON JURIES ACTING UNANIMOUSLY IN

CRIMINAL CASES. ecccccccccce 7

A. The Sixth Amendment Right

To Trial By Jury Guarantees A

Jury Of Twelve Persons ......... 7

B. The Sixth Amendment Right

To Trial By Jury Guarantees A

Jury Of Twleve Persons Because

A Twelve-Person Jury Is Essential

To The Historical Functions Of

PT Stecesibetecncvcesesesee 17

(1) Representative cross-section

of the community ee ee ee . 18

(2) Effective Group Deliberation. _ 21

(3) Insuring Accuracy of Results...... 22

(4) Detriment of the Defendant.. 24

C. The Sixth Amendment Right To

Trial By Jury Guarantees Unanim-

SCY IR GUY VORGAGES 2... ccccscice 25

D. The Sixth Amendment Right To

Trial By Jury Guarantees Unanim-

ity In Jury Verdicts Because

Unanimity Is Essential To The

Historical Functions Of The Jury..29

4i.

II. IN THE ALTERNATIVE, A STATE

MAY EITHER REDUCE THE SIZE OF A

JURY OR PROVIDE FOR CONVICTION BY

A SUBSTANTIAL MAJORITY, BUT IT

MAY Woe BO BOTH £ +};} 8 i eevccccvcccs 35

COMCLUeeem 0@0—“‘“‘“‘“‘“‘“‘“‘“‘“‘“‘“wR 37

Table of Authorities

Cases:

Apocada v. Oregon, 406 U.S. 404 (1972).....

2. 6,.26, 35

Ballew v. Georgia, 435 U.S. 223 (1978).....

2, 3, 4, 5, 18, 19, 21, 22, 23, 35, 37

Colegrove V- Battin, 413 U.S. 139 ere es

Johnson v. Louisiana, 406 U.S. 356 (1972)..

3, SG, Gs ae, oo

Monell v. New York City Department of

Social Services, U.S. , 56 L.Ed.

on 1407) 0—0606”™”™C™C~™CS Oe eee eae 7

Trop v. Dulles, 356 U.S. 86 (1958) ..... 16

U.S. v. Wong Kim Ark, 169 U.S. 649 eres.

Williams v. Florida, 399 U.S. 78 (1970)....

By Ge. Se tees. Ber ber bho Ode a0s..a?e 2D

State Statutes:

Bem mews S2Etnee. Yo ge eee eetes 3

£43.

Other Authorities:

Askin, S. E. Effects of Group Pressure

on the Modification and Distortion

of Judgments in Group Dynamics 18

Research and Theory (2d Ed. 1960) ... 18

Blackstone, W. Commentaries hs 2e ose an

Davis, Kerr, Atkins, Holt and Meek,

The Decision Processes of a 6- and

12- Person Mock Juries Assigned

Unanimous and Two-Thirds Majority

Rules. 32 Journal of Personality 18,

and Psychology (1975) .......... 30

Documentary History of the Constitution

of the United States, Vol. Il ..... 28

The Effect of Jury Size on Probability

of Conviction, 22 Case Western Reserve

Law Review 529 (1971) ...rccccce 17

Lempert, R. Uncovering the 'Nondiscern-

ible' Differences: Empirical Research

and the Jury Size Cases, 73 Michigan

Law Review 643 (1975) ........ 17, 20

Nagel, S. and M. Neff, Deductive Mocéeiing

to Determine an Optimum Jury Size and

Fraction to Convict, 1975 Washington

University Law Review 933 (1975) .....

Bis @ee 2a

Saks, M. Ignorance of Science Is No

Excuse, 10 Trial 18 (November-

December, 1974) — ...., 19, 23,. 36

Schwartz, B. The Bill of Rights: A

Documentary History (1971) } } .........

ll, 12, 14, 28

Scott, A. Holmes v. Walton: The New

Jersey Precedent, 1779, 4 American

Historical Review 456 (1899) in

Schwartz, The Bill of Rights: A

Documentary History 1971. ...... e il

iv.

Silberman, C. Criminal Violence

Criminal Jeserce tketsl 8 8 83 § «6 - weccecnue 20

Uniform Crime Reports, 1975 ....... cme

Zeisel, H. ..-And Then There Were

None: The Diminution of the

Federal Jury, 38 University of

Chicago Law Review 710 (1971) .......

Boy 20, 32h, 33

In The

SUPREME COURT OF THE UNITED STATES

No. 78-90

DANIEL BURCH and WRESTLE, INC.,

Petitioners,

vs.

STATE OF LOUISIANA,

Respondent.

On Writ of Certiorari to the

Supreme Court of Louisiana

BRIEF OF THE AMERICAN CIVIL LIBERTIES

UNION AND THE AMERICAN CIVIL LIBERTIES

UNION OF LOUISIANA, AMICI CURIAE

*

Interest of Amici Curiae —

American Civil Liberties Unicon is a

nationwide, non-partisan organization of

over 200,000 members, dedicated to the

protection of the rights enumerated in the

Bill of Rights. It is particularly con-

cerned with the fair operation of the crim-

inal justice system, and during its 58-year

*/ Letters from all parties consenting to

the filing of this brief have been filed

with the Clerk of the Court.

history has stressed the need for the full-

est protection of the Constitutional right

of trial by jury.

Recent social science scholarship,

relied on by the court in Ballew v. Georgia,

435 U.S. 223 (1978), suggests that the

factual premises underlying this Court's

decisions permitting a reduction in jury

size, Williams v. Florida, 399 U.S. 78

(1970), and decisions by less than unan-

imous juries, Apodaca v. Oregon, 406 U.S.

404 (1972), may have been in error. More-

over, recent historical scholarship also

suggests that the number twelve was no mere

historical accident, but was an essential

part of the jury right: indeed, in the

first recorded instance of judicial review

in the United States, in 1779, the New

Jersey Supreme Court held that a reduction

in jury size to less than twelve was "uncon-

stitutional," violating "the right of trial

by jury."

We submit this brief to provide the

Court with these studies.

Because five to one jury verdicts in

criminal cases do not offer defendants the

protections of the right to jury trial as

established by the Founders - including

accuracy, consistency, fairness, and fair

representation - amici urges that the judgment

of the Louisiana Supreme Court be reversed.

STATEMENT OF THE CASE

Petitioners, an individual and a

Lovisiana corporation, were convicted of

violating the Louisiana obscenity statute,

LSA R.S. 14:106, for showing coin-operated

movies in New Orleans, alleged to be obscene.

The jury found the individual defendant

Burch guilty by a five to one vote and the

corporate defendant guilty by a

unanimous vote. Burch was sentenced to two

consecutive seven-month prison terms, which

were suspended by the Court, and fined

$1,000.

On appeal to the Louisiana Supreme

Court, the convictions were affirmed. On

the issue of the proportion of the jury

needed to convict, the Louisiana Supreme

Court found Johnson v. Louisiana dispositive

regardless of jury size:

If 75 percent concurrence

(9/12) was enough for a verdict

as determined in Johnson v.

Louisiana, 406 U.S. 356 (1972),

then requiring 83 percent con-

currence (5/6) ought to be within

the permissible limits of Johnson.

Hargrave, The Declaration of

Rights of the Louisiana Constitution

of 1973, 35 La.L.Rev. 1, 45 (fn.

300) (1974).

We accept this view as still

valid, despite the recent decision

in Ballew v. Georgia, 435 U.S. 223

(1978).

Appendix to Petition for Certiorari

(hereinafter cited as Pet.App.)at l3a.

And, having ruled that this Court's

analysis and decision in Ballew were

irrelevant to the question of the percent-

age of jurors necessary to convict, the

Court rejected petitioners' contention

that Ballew foreclosed verdicts by less

than six jufors:

{[I]n Williams, the court had

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.

The six-person jury will still

presumably engage in the longer

deliberations involving more

communication that the court found

adequately enhances greater verdict

reliability and better community

representation, despite (see

Johnson) the elimination of the

requirement for unanimity in

verdict. Or at least this court,

indulging in the presumption of

federal constitutionality which

must be afforded to provisions of

our state constitution, so con-

cludes as to this close issue.

SUMMARY OF ARGUMENT

The first Congress viewed the right of

trial by jury as necessarily requiring a

jury of twelve persons. Three leading

figures in the first recorded instance of

judicial review of a state constitution, in

which the New Jersey Supreme Court held a

provisions for juries of six persons "“uncon-

stitutional" as violative of the New Jersey

Constitution providing for "the right of

trial by jury," were also principals in the

Constitutional Convention and in the first

Congress. They would hardly have remained

Silent if a principle so recently controver-

Sial in their own state was being overturned

in Philadelphia. Williams v. Florida, 399

U.S. 78 (1970), should be overruled. (Point

T.A.).

Reduction of the jury from twelve to

six undermines each of the four central

purposes of the jury trial right recognized

in Williams v. Florida, supra, and Ballew v.

Georgia, 435 U.S. 223 (1978). (Point I.B.).

Unanimity was viewed by the Framers as

an essential attribute of the historical

right of trial by jury, and was incorporated

into the constitutional provision securing

the right. A majority of this Court has

steadfastly agreed. Johnson v. Louisiana,

406 U.S. 356 (1972), and Apodaca v. Oregon,

406 U.S. 404 (1972), should be overruled.

(Point I.C.).

Elimination of the requirement of jury

unanimity also undermines each of the pur-

poses and functions of the jury system.

(Point I.D.).

Even if the Court declines to recon-

sider its previous decisions sanctioning

the six-person jury and the non-unanimous

jury, a five to one verdict of a six-person

jury undérmines exponentially the purposes

and functions of the jury system, and is

not a "jury verdict" within the meaning of

the Sixth and Fourteenth Amendment guaran-

tees. (Point II).

ARGUMENT

I. THIS COURT SHOULD RECONSIDER ITS

HOLDINGS IN WILLIAMS V, FLORIDA,

JOHNSON V. LOUISIANA, AND _APODACA

V. OREGON, AND SHOULD RE-ESTABLISH

THE NECESSITY, UNDER THE SIXTH AND

FOURTEENTH AMENDMENTS, FOR TWELVE-

PERSON JURIES ACTING UNANIMOUSLY

IN CRIMINAL CASES.

A. The Sixth Amendment Right To Trial By

Jury Guarantees A Jury Of Twelve

Persons.

In Williams v. Florida, 399 U.S. 78

(1970), the court upheld the constitution-

ality of six-person juries, calling the

selection of the number twelve a "historical

accident" in the development of the common

law jury. Id. at 89. Amici submit that a

more complete examination of the historical

record nT icc that view to have been in

error. =

The Williams court relied heavily on

changes made in the wording of the Sixth

Amendment after it was first introduced by

Madison in the House of Representatives.

1/ Here, as in Monell v. New York City

Department of Social Services, Bebe ;

56 L.Ed. 611 (1978), a candid reappraisal

of "the weakness of the historical evidence

[previously] relied on" justifies departure

from the rule of stare decisis. Id. at 644

(Powell, J., concurring). Indeed, this case

is a fortiorari, for stare decisis has less

force in constitutional adjudication than in

statutory analysis. Id. at 638.

The original Madison proposal provided:

The trial of all crimes shall

be by an impartial jury of free-

holders of the vicinage, with the

requisite of unanimity for con-

viction, of the right of challenge,

and other accustomed requisites.

Williams v. Florida, supra at 94.

After the House passed this proposal, the

Senate changed the wording because of its

objection to the concept of the "vicinage.'

Madison explained the problem in a letter

to Edmund Pendleton, dated September 14,

1789. The letter read in part:

‘The Senate have sent back

the plan of amendments with some

alterations which strike, in my

opinion, at the most salutary

articles. In many of the States,

juries, even in criminal cases,

are taken from the State at

large: in others, from districts

of considerable extent; in very

few from the County alone.

Hence a dislike to the restraint

with respect to vicinage, which

has produced a negative on that

clause, * * * Several others have

had a similar fate. Letter from

James Madison to Edmund Pendleton,

September 14, 1789, in 1 Letters

and Other Writings of James

Madison 491 (1865).

Id. at 95, n. 39.

After a conference committee considered

the matter, the Amendment was re-worded in

its present form, which does not mention

freeholders, unanimity or vicinage, or the

"accustomed requisities" of the jury. This

Court concluded:

--.- Such action is concededly

open to the explanation that the

"accustomed requisites" were

thought to be already included in

the concept of a "jury." But that

explanation is no more plausible

than the contrary One: that the

deletion had some substantive

effect. Indeed, given the clear

expectation that a substantive

change would be effected by the

inclusion or deletion of an explicit

vicinage" requirement, the latter

explanation is, if anything, the

more plausible. Id. at 9

Amici respectfully submit that the re-

wording is an insufficient basis on which

to conclude that Madison and the other

Founders intended to reject 400 years of

common law development that had led to the

establishment of unanimous twelve-person

juries in England and the colonies. For

the Framers, the right to trial by jury was

one of the natural rights of free men.

George III's denial of the right to jury

trial by the establishment of vice-admiralty

courts, in the period from 1768 to 1774, had

been one of the chief complaints against the

English crown specified in the Declaration

10.

of Independence. 2/ It is not likely that

Madison, Jefferson, and the other Founders

would have permitted such a fundamental

alteration of the jury trial right as they

knew it without considerable discussion

and debate.

As Mr. Justice Harlan observed in his

dissent in Williams:

In the context of an amendment

notable for its sparseness of

language, a more likely explanation

of the Senate's action is that it

was streamlining the Madison version

on the assumption that the most

prominent features of the jury would

be preserved as a matter of course.

This interpretation of the events is

supported by the fact that the only

specifically objectionable feature

of the common-law jury - the vicinage

requirement - was pre-empted by

language providing for a trial by a

jury of the district, thus leaving

the remaining attributes undefined in

face of the distinct expectation that

those charged with interpretation

would look to the common law. Nor is

this explanation rendered less force-

ful by the fact, noted by the Court,

that "reception" of the common-law

jury did not unfailingly mean 12 in

2/ “He has combined with others to subject

us to a jurisdiction foreign to our consti-

tution and unacknowledged by our laws;

giving his assent to their acts of pretended

Legislation: .... for depriving us in many

cases of the benefits of Trial by Jury."

ll.

early colonial times. As the Court

itself acknowledges, the States

that had constitutions in 1787 pro-

vided for juries of 12.

399 U.S. at 123, n. 9.

But even apart from the ultimatedly

inconclusive argument over what the first

Congress intended by deletion of the phrase

"accustomed requisities”" of the jury, posi-

tive evidence exists to prove that the

Framers in fact did "equate the constitu-

tional and common law characteristics of

the jury." Williams, 399 U.S. at 99. In

a case commonly accepted as the first

instance of judicial review in the newly

independent states, the Supreme Court of

New Jersey held a state law providing for

a six-person jury "unconstitutional,"

violating "the right of trial by jury."

The case, Holmes v. Walton, 3/ (1779),

was an action for condemnation of goods

obtained through commercial intercourse

with the English. Under the 1775 law,

providing for such seizure, either party

3/ See Austin Scott, "Holmes v. Walton:

The New Jersey Precedent, 1779" 4 American

Historical Review 456 (1899) in B.

Schwartz, The Bill of Rights: A Dociimen-

tary History, 405-410 ( 1). As Scott

sets forth, Holmes v. Walton is unreported,

but the decision of the court and arguments

of counsel have been amply reconstructed

from historical sources. Id.

12.

could demand a jury, which would consist

of six men. The defendants appealed the

verdict against them. Among the arguments

raised by defense counsel were these:

For that the jury who tried the said

plaint before said justice consisted of

Six men only contrary to the constitution

of New Jersey.

For that proceedings and trial in

the said plaint below, and the judgement

thereon given were had contrary to the

constitution, practices and laws of the

land. 4/

The basis for these remarkable arguments

was the Constitution of New Jersey, adopted

the day independence was declared by the

Continental Congress, July 2, 1776, which

provided that "the inestimable right of

trial by jury shall remain confirmed as a part of

the law of this colony, without repeal forever."

The assumption that the "right of trial by

jury" included twelve jurors as part of its

essential nature finds support in previous

declarations of the rights of the colonists

in New Jersey .>/ Eventually, in 1780, the

4/ Schwartz, supra n. 3.

5/ Chapter XXII of the West Jersey "Concessions

and Agreements" of 1676: "The trial of all causes,

civil and criminal shall be heard and decided by

the verdict of twelve honest men of the neighborhood."

The formal declaration of the "Rights and Privi-

leges" passed by the House of East Jersey in 1699

also required that all trials be by a jury of twelve

men. Two other acts of the assembly in each of the

Jersey provinces show that the right to trial before

a jury of twelve men was regarded as fundamental,

notably the acts of November, 1681 in West Jersey,

and March, 1683 in Fast Jersey. Schwartz at 407.

i3.

law under which the case was tried was

declared unconstitutional by the New Jersey

Supreme Court. Although the opinion of

Chief Justice Brearly has been lost, a con-

temporaneous petition to the New Jersey

House of Assembly complains that "the jus-

tices of the Supreme Court have set aside

some of the laws as unconstitutional," and

a motion made by defense counsel at a new

trial of the Holmes case recited the pre-

vious holding that "a trial by six men is

unconstitutional."

The case is important for two reasons.

First, the notion of judicial review of

legislative acts was not at that time gen-

erally accepted in the colonies, and, in

fact, a great protest arose as a result of

the claimed usuperation of power by the New

Jersey Supreme Court. The New Jersey Court

would hardly have embarked on the difficult

and novel course of judicial review unless

the law at issue, providing for six-man

juries, was clearly and unequivocally in

violation of the constitutional "right of

trial by jury." As the New Jersey Supreme

Court explained in 1804:

This question [whether the court

has power to control the operation

of an act of the legislature upon

the principle of its being contrary

to the constitution] was brought

forward in the case of Holmes vs.

14.

Walton, arising on what was then

called the seizure laws. There it

had been enacted that the trial

should be by a jury of six men; and

it was objected that this was not a

constitutional jury; and so it was

held; and the act upon solemn argu-

ment was adjudged to be unconstitu-

tional and in that case inoperavive.

And upon this decision the act, or

at least that part of it which

relates to the six-man jury, was

repealed and a constitutional jury

of twelve men substituted in its

place. This then is not only a

judicial decision but a decision

recognized and acquiesced in by 6/

the legislative body of the State.—

Second, three of the principals involved

in Holmes v. Walton became leading figures in

both the Constitutional Convention and in the

First Congress. The author of the opinion,

Chief Justice David Brearly, of the New Jersey

Supreme Court, was a representative to the

Philadelphia Convention that drafted the Con-

stitution, and he signed the Constitution for

New Jersey. William Paterson, the New Jersey

Attorney General at the time of the decision,

was a member of the Convention, one of the

first Senators from New Jersey, and later a

Justice of this Court. He also served on the

Conference Committee that reconciled the lang-

uage between the House and Senate versions of

the Bill of Rights. Elias Boudinot, the

6/ 8B. Schwartz, supra n. 3.

iS.

successful attorney for the defendants in

Holmes, later served in the first Congress

where he participated in the House debates

on the Bill of Rights.

These three men, fresh from the novel

and controversial decision of the New Jersey

Supreme Court declaring the six-man jury law

unconstitutional, would plainly have done

what the Williams court thought they did not

do - "equate the constitutional and common

law characteristics of the jury," Williams,

399 U.S. at 99, They would hardly have

agreed, without debate, to a change in the

definition of the word "jury" directly con-

trary to the definition their highest court

had recently held was embodied in the word.

The only possible conclusion is that urged

by Justice Harlan in Williams: the Framers

assumed that "the most prominent features

of the jury," including its inclusion of

twelve persons," would be preserved as a

matter of course," 399 U.S. at 123, n. 9.

Of course, this Court is not bound by

the expectations or assumptions of the

Framers of the Constitution or the Bill of

Rights. The great abstract phrases of the

Constitution "due process of law," "equal

protection of the laws," "cruel and unusual

punishment," take their meaning from the

"evolving standards" of a maturing society

16.

Trop v. Dulles, 356 U.S. 86, 101 (1958).

But the more specific, concrete terms of

our basic charter should not lightly be

stripped of their historical meanings.

Terms such as "army" or "citizen" or

"habeas corpus" or "jury" had specific

common law or English anteceden”*;, and

must be "interpreted in the light of the

common law, the principles and history of

which were familiarly known to the framers

of the Constitution." United States v.

Wong Kim Ark, 169 U.S. 649, 654 (1898).

As Justice Harlan urged in Williams, the

number twelve, coming as it did from 400

years of English common law development,

was not "mere adornment." 399 U.S. at

125. "The right to trial by jury...has no

enduring meaning apart from historical

form." Id.

In this context, the approach of

this Court in Williams and Johnson pro-

ceeded from the wrong premise and placed

the burden on the wrong proponent. Given

this Court's "limited role in a constitu-

tional democracy," Colgrove v. Battin, 413

U.S. 149, 181 (1972) (Marshall, J., dissent-

ing), it should require those who would

depart from specific historical restraints

on governmental power to justify the

departure. Those who would retain the

LW.

protections in the Bill of Rights as the

Framers passed them on ought not to carry

the burden of justification thrust upon them

in Williams. As Justice Marshali commented:

"The line must be drawn somewhere, and the

difference between drawing it in the light

of history and drawing it on an ad hoc

basis is, ultimately, the difference between

interpreting a constitution and making it up

as one goes along." Id. at 181-82.

B. The Sixth Amendment Right To Trial By

Jury Guarantees A Jury Of Twelve Persons

Because A Twelve-Person Jury Is Essen-

tial To The Historical Functions Of

The Jury.

This Court's decision in Williams was

based in part upon "currently available

evidence and theory on the effect of changes

in jury size." 399 U.S. at 101. But, as the

court recognized in Ballew, research under-

taken subsequent to Williams strongly indi-

cates that diminution of the jury below

twelve significantly impairs the functioning

of the jury. 2/ the court has recognized four

7/ The studies include R. — Uncever-

ing 'Nondiscerni ' Di e

Research and the Jury Size Cases, 73 Mich. L.Rev. 643

(1975); S. Nagel and N. Neef, Deductive Modeling to

Determine an Optimum J Size and Fraction to Convict,

1975 Wash.vU. r E 933 CIS T5); Note, The Effect of J

Size on the Probability of Conviction, 22 Case W. “Sy

(footnote continued on next page)

18.

central purposes in the Sixth and Fourteenth

Amendments' jury trial provisions: (1) to

provide a fair possibility for obtaining a

representative cross-section of the community,

Williams, 399 U.S. at 100; (2) to promote

effective group deliberation, Id; Ballew, 435

U.S, at 234; (3) to insure accuracy of results,

Id. at 234-5; and (4) to avoid serious detriment to the

defendant, Id. at 236. Each of these functions

have been undermined by the reduction in size

of juries from twelve to six.

(1) Representative cross-section

of the community

Simple mathematical calculations show

that reducing the size of a jury from twelve

to six will significantly reduce the members

of minority groups that sit on juries. Accord-

ing to one study, the reduction in minority

group representation on smaller juries is even

larger than one would expect:

L.Rev. 529 (1971); S. =. ASkin, Effects of

Group Pressure Upon the Modification and Dis-

tortion of Judgments, in Group Dynamics

Research and Theory (2d Ed. 1960); Davis,

Kerr, Atkins, Holt and Meek, The Decision

Processes of a 6- and 12- Person Mock Juries

Assianed Unanimous and Two-Thirds Majority

FF See generally, Ballew

U.S. at 23ln. 16.

19.

In asserting that there would be

a negligible difference in the

ability of 12-member and six-member

juries to provide a representative

cross-section of the community, the

court ignored what is obvious to

every social scientist: that when

sampling from heterogeneous popula-

tions, sample size (12 versus 6)

determines how well minority groups

in the population will be represent-

ed. In sampling from a population

stratified 90%/10%, for example,

we can predict from our knowledge

of sampling theory that 72% of

12-member juries will include one

or more members of the minority, but

but that only 47% of the 6-member

samples will. Still, this is only

a statistical prediction, and a

sincere empiricist would want to

see empirical evidence. In my own

experiments on 12-member versus

six-member juries I compared the

number of large and the number of

small juries that had one or more

blacks present. Blacks composed

10% of the population from which

these jurors were drawn. Instead

of the 72% to 47% contrast pre-

dicted, I found an 82% to 32%

difference. Not many people would

term this difference "negligible."

M. Saks, "Ignorance of Science is

no Excuse," 10 Trial 18, 19 (Nov.-

Dec. 1974) (footnote omitted).

Professor Saks' Studies were cited by the

court in Ballew, see, e.g., 435 U.S. at

y & 9 |

n. 10, 237 n. 28.

20.

This result was confirmed in another study,

which observed that "because blacks are

likely to be under-represented in the

sampling frame from which jurors' names

are drawn (e.g., voting lists), the degree

of under-representation apparent to black

parties before courts is likely to be

greater than these figures suggest." 8/

And because of the smaller numbers of min-

ority group jurors, racially motivated

preemptory challenges will more effectively,

and quickly, create all-white juries when

juries have fewer members. 9/

Moreover, any doubts about the proper

size of the jury should be resolved in

favor of twelve-person juries in order to

make present-day juries the functional

equivalent of common law juries. Indeed,

from that functional perspective, a strong

argument can be made that juries of more

than twelve persons would be required in

order to serve the same cross-section of

the community function served by juries at

common law. A twelve-member jury consti-

tuted a much more substantial segment of

8/ Lempert, supra n. 7, at 669 n. 77.

9/ Minority group members are tried for

criminal activity in proportion far exceed-

ing their proportion of the population.

See, e.g., Uniform Crime Reports, 1975;

Silberman, Criminal Violence, Criminal

Justice (1978).

21.

the communicy in 14th Century rural England,

Or even in London, than does a twelve-member

jury in New Orleans today. The population

of the United States has grown over fifty

times since 1790, and yet we still select,

at most, only twelve jurors to represent a

fair cross-section of that greatly expanded

community.

Amici do not suggest that juries of more

than twelve persons are constituitonally re-

quired. We do suggest, however, that author-

izing juries of less than twelve persons is

inconsistent with the function of juries at

common law, and that doubts about the proper

size of juries should be resolved with

attention to the function of the jury, anq

therefore in favor of twelve-person juries.

(2) Effective Group Deliberation

Studies of the dynamics of group

decisionmaking have shown that "there were

no conditions under which smaller groups

were superior in the quality of group per-

formance and group productivity." Ballew,

435 U.S. at 233, n. 11. As a group is

reduced from twelve to six, there are fewer

members to make the necessary contributions

to solve the problems before them. "As

juries decrease in size, then, they are less

likely to have members who remember each of

nas

the important pieces of evidence or argument."

Id. at 233.

group is less

Moreover, bias in a smaller

likely to be overcome both

because there is less group pressure, and

because there are likely to be fewer minority

group members.

As this Court noted in Ballew, id. at

232,

leads to inaccurate factfinding and incorrect

"At some point this decline [in size]

application of the common sense of the com-

munity to the facts." Available studies,

cited with approval in Ballew, demonstrate

that the erosion of effective deliberations

is even greater from twelve to six than from

six to five; since the Court has found the

latter erosion of constituitonal magnitude,

it should review and reverse the decision in

Williams, finding the greater erosion con-

Stitutionally insubstantial.

(3) Insuring Accuracy of Results

Almost every post-Williams study has

concluded that reducing the size of juries

from twelve to six will make a difference

in jury decisions. As the Court pointed

out in Ballew, 435 U.S. at 234-35, one study

showed that twelve-person juries reached

"correct" conclusions in 83% of the cases

before it, while six-person juries came to

the "correct" conclusion in only 69% of the

cases.

23.

10/ This Court's summary observes

the following other changes:

Working with statistics des-

cribed in II. Kalven & II. Zeisel,

The American Jury 460 (1966),

Nagel and Neef tested the average

conviction propensity of juries,

that is, the likelihood that any

given jury of a set would convict

the defendant. They found that

half of all 12-person juries would

have average conviction propensi-

ties that varied by no more than

20 points. Half of all 6-person

juries, on the other hand, had

average conviction propensities

varying by 30 points, a difference

they found significant in both real

and percentage terms. Lempert

reached similar results when he

considered the likelihood of juries

to compromise over the various

views of their members, an important

phenomenon for the fulfillment of

the commonsense function. In civil

trials averaging occurs with respect

to damages amounts. In criminal

trials it relates to numbers of

counts and lesser included offenses.

And he predicted that compromises

would be more consistent when larc

juries were employed. For example

12-person juries could be expectea

to reach extreme compromises in 4°

of the cases, while 6-person panel:

would reach extreme results in 16%

All three of these post-Williams

studies, therefore, raise signifi-

cant doubts about the consistency

and reliability of the decisions

of smaller juries. Ballew, 435

U.S. at 235 (footnotes omitted).

107

Saks, Supra p. 19, at 86-87.

24.

And another leading Study analyzed the

Significant extent to which jury size affects

jury verdicts as follows:

Assume that a twelve-member jury has

been drawn and that seven or more of

its members hold attitude x. If one

dismisses that jury and draws a jury

of six members from the same popula-

tion, what is the probability that

four or more members of the smaller

jury will hold attitude x? The best

estimate is about 77 per cent; thus,

where a jury's decision may be traced

to the attitudes with which its

members view a problem, the verdict

is a six-member jury drawn randomly

from a population will differ from

the verdict rendered by a twelve-

member jury drawn from the same

population about 23 per cent of the

time. Adding these cases of expected

divergency (23 per cent of the 20.3

per cent of cases in which judge-jury

disagreement was attributable to

additional differences, or 4.7 per

cent of the total sample) to the

previous minimum estimate of 9.4 per

cent produces a final estimate of

14.1 per cent as the proportion of

cases in which jury size has a

reasonable probability of affecting

jury verdicts. Lempert, supra n. 6,

at 651-53 (footnote omitted)

(4) Detriment to the Defendant

The most serious problem, as noted

24a.

studies find that reduction in jury size

substantially increases the risk of erron-

eous conviction:

[I]n the course of 1000 trials,

21.3 innocent defendants are likely

to be convicted by a six-person

jury, while only 20 innocent de-

fendants are likely to be convicted

by a twelve-person jury. That 1.3

difference represents a 6-1/2 per-

cent increase over 20 defendants,

Or a six percent decrease from 21.3

defendants. It does sound socially

undesirable to increase the number

of innocent defendants convicted by

6-1/2 percent. It sounds even worse

to note that the probability of con-

victing an innocent defendant qoes

up from 0.40 to 0.427 when a juris-

diction changes from a twelve-person

jury to a six-person jury. That is

almost a seven percent increase in

the possibility of an innocent person

being convicted (0.027/0.40). Con-

versely, someone concerned about not

convicting the guilty might note that

the probability of a guilty defend-

ant not being convicted rises from

0.284 for a six-person jury to 0.297

for a twelve-person jury. That

represents an increase of almost

five percent (0.013/0,284).

Nagel and Neef, supra n. 7, at

959-60.

Other studies come to the same conclusion

based on slightly different approaches.

Hans Zeisel has shown that the number of

above, is the greater possibility that ;

' hung juries dramatically decreases when the

truly innocent defendants will be found ; ;,

; jury size is reduced from twelve to six.

guilty as a result of the change in jury

There are hung juries on a national average

Size. Once again, the post-Williams studies

in about 5% of the cases heard by twelve-

25-

person juries. However, in Florida, when

six-person juries are used, the number of

hung juries was reduced to 2.4%. i1/

This change is especially crucial, and

it demonstrates how severely the constitu-

tional right of trial by jury has been

impaired by Williams. our criminal justice

System has been predicated on the judgment

that, in Blackstone's famous phrase, "it is

better that ten guilty persons escape than

that one innocent suffer." i2/ But the

change in jury size Significantly affects

the results reached by juries, and leads to

fewer hung juries, more convictions, and

the inevitable conviction of Significant

numbers of innocent defendants.

C. The Sixth Amendment Right To Trial

By Jury Guarantees Unanimity In

Jury Verdicts.

It is hardly necessary for amici to

attempt to persuade the Court that unanimity

is an essential attribute of the historical

ll/ Zeisel, ...And then There Were None:

The Diminution OF the Federal Jury, 38

U. of Chic. .L Rev. 710, 720 (IY7I). Another

Study has demonstrated the mathematical

basis for this result. See The Effect of Jury

Size on the Probability of Conviction, supra n. 6 at 547.

12/ 4 W. Blackstone Commentaries 358.

26.

right of trial by jury, for a majority of the

Court has consistently and resolutely upheld

precisely that view. Indeed, in both Johnson

and Apodaca, a majority of the court agreed

that unanimity was “one of the essential

attributes subsumed under the term" "jury

trial." See 406 U.S. at 370, n. 6 (Powell,

J., concurring); 406 U.S. at 381-83 (Douglas,

Brennan, and Marshall, JJ., dissenting); 406

U.S. at 395 (Brennan and Marshall, JJ., dis-

senting); 406 U.S. at 397 (Stewart, Brennan,

and Marshall, JJ., dissenting); 406 U.S. at

414 (Stewart, Brennan, and Marshall, JJ.,

dissenting). 13/ A majority of the Court has

13/ The judgments in Apodaca were partic~

Ularly anomalous, for different majorities

of the Court in that case agreed that the

Sixth Amendment requires a unanimous verdict

in federal criminal jury trials, and that

the right to jury trial guaranteed by the

Sixth Amendment was to be enforced against

the states according to the same standards

protecting the federal right. However, Mr.

Justice Powell, who did not agree that the

Sixth Amendment standards applied to the

states, joined the plurality and voted to

affirm the judgments. Nevertheless, in

some sense, aS Mr. Justice Brennan observed,

the opinions in Apodaca and Johnson were

consistent with "a holding that only a

unanimous verdict will afford the accused

in a state criminal prosecution the jury

trial guaranteed him by the Sixth Amend-

ment. 406 U.S. at 395 (Brennan, J.,

dissenting.

ai.

never wavered from the view that the jury

right protected by the Framers was a right

to a unanimous jury. Id. That frequently

repeated view is amply supported by the

records of ratification. As is well known,

the Constitution was finally ratified in

the requisite number of states Only after

its proponents agreed that a Bill of Rights

would be quickly added to it to protect the

lives and liberties of all citizens against

arbitrary power by the federal government,

In many of the state ratifying conventions,

proposed amendments were introduced showing

the type of protection expected,

The most important debates on ratifi-

cation, producing the Federalist Papers,

took place in New York, the most populous

state at the time and one whose adherence

was geographically necessary to make the

existing group of states into a Single

nation. One section of the New York pro-

posed amendments focused specifically on

the need for unanimous jury verdicts, and

provided

That (except in the Government

of the Land and Naval Forces, and

of the Militia when in actual

Service, and in cases of Impeach-

ment) a Presentment or Indictment

by a Grand Jury ought to be

observed as a necessary preliminary

to the trial of all Crimes cogniz-

able by the Judiciary of the United

28.

States and such Trial should be

speedy, public, and by an impartial

Jury of the County where the Crime

was committed: and that no person

can be found Guilty without the

unanimous consent of such Jury. 14/

When the New York convention voted to

ratify the Constitution on July 26, 1788,

by a vote of 30 to 27, the agreement of the

Federalist supporters to introduce quickly

a group of amendments along the lines of the

New York proposals was crucial in securing

the necessary votes. In this light, it is

Simply unthinkable that the First Congress

would propese an amendment on the right of

trial by jury, dispensing with the unanim-

ity requirement, without a word of protest

by any member of the New York Congressional

delegation. The only conclusion to be

drawn is that, while the language of the

Sixth Amendment was modified and simpli-

fied, there was no thought of changing the

sturcture of the jury as the Founders had

always known it - a body acting unanimously

to determine a person's guilt or innocence.

14/ B, Schwartz, Supra n. 4, at 911-12;

Documentary History of the Constitution of

the United States, Volume 2, pp. 190-202.

29.

D. The Sixth Amendment Right To Trial

By Jury Guarantees Unanimity In

Jury Verdicts Because Unanimity Is

Essential To The Historical

Of The Jury. ~

Functions Of The Jury.

Almost uniformly, scholarly work on

jury unanimity has found that if a minority

position is asserted in a Situation where

its adherent's vote is not necessary to

decide the question, then the majority

will largely ignore it. Put another way,

if they do not have to do so, a majority

will give only the most cursory considera-

tion to minority views. One Study inquired

whether juries not bound by the rules of

unanimity would conscientiously and compre-

hensively discuss the views of minority

members:

[T]here were 36 juries which

were assigned a nonunanimous rules,

Of this number, 26 had a two-thirds

majority on their first poll without

achieving unanimity. Among these

26 juries, 9 juries (35%) decided

immediately upon the majority

position. Several more (4) of

these juries deliberated for only

a very short time (5 minutes or

less) after the first poll and

then outvoted a minority. Only

6 of these juries deliberated for

more than 10 minutes, and all of

these out-voted an unconvinced

minority. These data Suggest that

the increased speed of deliberation

found for the juries assigned a non-

unanimous rule may have resulted

30.

from cursory consideration of dis-

senting views. We would naturally

hope and expect that real jurors

would be more conscientious than

our student mock jurors, but these

data raise interesting questions

about the Court's sanguine view of

jury deliberation. Davis, Kerr,

et al., supra n. 7, at l2.

The decisions permitting non-unanimous

juries in Johnson and Apodaca relied, as had

the decision in Williams, on social science

data which seemingly showed that unanimity

was not indispensible to the proper function-

ing of the jury system. But just as recent

studies cast sharp doubt on the premises

underlying Williams, they cast doubt on

Johnson and Apodaca as well. Indeed, the

requirement of unanimity is more crucial

in preserving the traditional common law

conception of jury trial than the require-

ment of twelve jurors, for elimination of

the unanimity requirement significantly

reduces the likelihood of meaningful jury

debate:

a majority verdict requirement is

farmore effective in nullifying

the potency of minority views than

is the outright reduction of jury

size equivalent to the majority

that is allowed to agree ona

verdict. 15/

15/ Zeisel, supra n. ll, at 722.

Sl.

Professor Zeisel has concluded that while

reducing the number of jurors was a "Jury

enfeebling measure, " abandoning the require-

ment of jury unanimity is "reduction with a

vengeance," —=

Various studies have been made of the

difference in results between six-person

juries acting unanimously and twelve-person

juries acting by ten to two votes. Ina

Significant number of instances, the larger

jury acting by majority vote was more likely

to convict than the smaller, but still

unanimous jury: .

Note that the Drobability of

conviction for the unanimous 12 out

Of 12 verdict stays relatively low

throughout a wide range of apparent

guilt (first reaching 50% at about

95% apparent guilt) approximatina

the ideal situation of no conviction

as long as there is a reasonable

doubt of the individual's guilt.

Of course, society therefore runs a

risk that many individuals who are

indeed guilty (in the actual, not

legal, sense) are likely to be con-

victed with this System. The 10

Out of 12 criterion leads to a much

different picture with the curve

rising very Sharply to a 50% prob-

ability at level of 78% apparent

guilt. Compared to the 12 out of

12 criterion, a defendant under a

10 out of 12 Criterion is 8 times

16/

Zeisel, Supra n. 1], at 722,

32.

more likely to be convicted at

80% apparent guilt and 3 times”

more likely at 90% apparant guilt.

The conviction patterns for an ll

out of 12 and a unanimous 6 out of

6 criterion are similar and are

intermediate between the 12 out

of 12 and 10 out of 12 results. .

Friedman, Trial by Jury: Criteria

for Convictions Jury Size and

Type I and Type II Errors, 26-2

Am. Stat. 21, 22 (April 1972).

Nagel and Neef, supra n. 7 at 976-977,

came to the same conclusion using a differ-

ent approach. Based on their premises, "an

innocent person has a 92% chance of being

convicted under a 10/12 rule, whereas

Table 2 indicates that such a person has

only a 63 percent chance of being convicted

under a 6/6 rule." They continue:

[A] 10/12 rule will always result

in a higher probability of the

innocent being convicted than a

6/6 rule.... Intuitively, one

might believe that the probability

of convicting an innocent person

under a 6/6 rule is greater than

under a 10/12 rule, because only

Six persons have to be convinced

of guilt under the 6/6 rule, but

ten have to be convinced under

the 10/12 rule. That kind of

reasonable thinking, however, does

not adequately consider how much

easier it is not to have to con-

vince everybody on a jury, even —

though the total number of decision-

makers is somewhat larger. Id.

33.

Zeisel agrees that a jury of twelve

that acts through a ten to two majority

vote is far less likely to have a minority

group presence that can effect the out-

come:

Looking first at the 100

twelve-member juries, we expect

to find 38 juries with One minor-

ity representative, 23 with two,

and 11 with three or more. If

these twelve-members juries must

be unanimous to reach a verdict,

the majority will have to reckon

with at least one minority member

in 38 + as + 11 = 72 out of the

100 cases. If these juries are

permitted to reach a verdict by

agreement of ten jurors, than the

majority will be able Simply to

disregard the minority position

in 38 + 23 = 61 of the 72 cases,

Only in the 11 cases in which we

must expect three or more minority

jurors will they be able to

influence the verdict.

Zeisel, Supra n. ll, at 723.

These studies, based upon statistical

analysis, Probability theory, and other

social science analysis, indicate that the

various "jury enfeebling" measures do,

indeed, make a difference. An appreciably

larger number of persons will be convicted

under a majority rule procedure. Necessar-

ily a larger number of innocent persons

will be caught up in this greater convic-

tion rate. Whatever one can say about the

34,

need for saving money in empaneling smaller

juries or the greater efficiency in a major-

ity vote system, such a significant

change in our jury structure surely needs

more justification from those who would

alter a procedure relied on in Anglo-

American law for over 500 years for deter-

mining guilt and innocence.

35.

II. IN THE ALTERNATIVE, A STATE MAY

EITHER REDUCE THE SIZE OF A JURY

OR PROVIDE FOR CONVICTION BY A

SUBSTANTIAL MAJORITY, BUT IT MAY

NOT DO BOTH.

We have argued above that both jury

enfeebling devices employed by the state of

Louisiana are unconstitutional. If this

Court decides that either one of them is

invalid, then the conviction must be

reversed,

But even if their Court does not Over-

rule Williams or Johnson and Apodaca, it

does not have to accept a procedure that

aggravates all the problems connected with

each of the modifications of the jury. The

difference between unanimous conviction by

a twelve-member jury and a conviction by

five members of a six-member jury are too

obvious to ignore. When this Court accepted

the six-member jury in Williams, it empha-

sized that a unanimous vote was required.

399 U.S. at 100. tt upheld the ten of

twelve and nine of twelve convictions in

Johnson and Apodaca Only by the slimmest

of margins, and without the benefit of many

of the later studies relied on in Ballew.

To continue the move down "the slippery

slope" would seriously alter a system

devised in far more uncivilized times to

insure fairness in the state's application

of the criminal law.

36.

Conviction by a non-unanimous six-

member jury entails all of the defects of

both of the earlier modifications in

aggravated form. In terms of obtaining a

fair cross-section of the community, the

Louisiana system necessarily would have

fewer and fewer minority group members or

members with a minority point of view, and

those members are more ea’sily struck by

peremptory challenges before empanellment.

In terms of group deliberation, the other

members of the smaller jury would simply

not have to consider that point of view if

they did not need the last vote for con-

viction. Saks has found an "enormous"

difference between larger and smaller

non-unanimous juries:

Each of the studies...found that

it is the absolute rather than

the relative size of the opposi-

tion that determined factional

influence, and that having an

ally (10-2) as compared to having

no ally (5-1) makes an enormous

difference. This is a classic

and well known finding in social

psychology research on conformity.

The presence of an ally is one of

the most powerful known facilita-

tors of minority resistence to

conformity pressure.

Saks, supra p. 19, at 19.

These findings lead inevitably to the

conClusion that five to one verdicts will

37.

impair the accuracy of verdicts to the

appreciable detriment of defendants. The

Unanimous vote of a twelve-member jury is

the standard required by the Sixth Amend-

ment for all federal criminal juries: the

appreciable change in jury functioning

and results entailed by a five to one

verdict so far depart from that standard

as to violate any norms of due process

or jury trial rights.

Finally, it should be noted that a

five to one verdict will allow five persons

to convict an individual, a conclusion at

odds with this Court's decision in Ballew

condemning a unanimous vote by a five-

member jury; yet studies cited above plainly

indicate that the unanimous vote is more

protective of a defendant's rights. The con-

viction here is plainly at odds with this Court's

reasoning and analysis in Ballew.

CONCLUSION

The tinkering with the jury system

that a few states have undertaken is not

merely "an experiment," and the states are

not merely acting as laboratories for dif-

fering forms of criminal justice reform.

The experiments involved here are not at

the fringes of the System, such as differ-

ing rules on the presence of attorneys in

38.

grand jury rooms or on the scope of prelim-

inary hearings. The alterations of the

traditional rules of jury size and unanimity

Strike at the heart of the jury function

which for centuries has kept the entire

criminal justice system operating as a

bulwark against tyranny and governmental

overreaching.

For the reasons noted above, the

judgment below should be reversed.

Respectfully submitted,

LEON FRIEDMAN

Hofstra University

School of Law

Hempstead, New York 11550

CHARLES S. SIMS

BRUCE J. ENNIS

c/o American Civil Liber-

ties Union Foundation

22 East 40th Street

New York, New York 10016

or : *

Attorneys for Amici Curiae

December 14, 1978

* Counsel wish to acknowledge the assist-

ance of Dolores Frederich, a second-year

law student at Hofstra University School

of Law, in the research and prepartion of

this brief.