# Amicus Brief — Burch v. Louisiana

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1978
- **Citation:** 439 U.S. 925

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1370%3A6. Public record. Not legal advice.