# Opinion — Johnson v. Louisiana > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0012%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Opinion - **Published:** January 1, 1972 - **Citation:** 406 U.S. 356 ## Text “TC) ip Opinion) NOTE: Where it is deemed desirable, a syllabus (headnote) will be released, as ir yy in connection with this case, at the time the cy.nion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepare?@ by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus JOHNSON v. LOUISIANA APPEAL FROM THE SUPREME COURT OF LOUISIANA No. 69-5035. Argued March 1, 1971—Reargued January 10, 1972— Decided May 22, 1972 A warrantless arrest for robbery was made of appellant at his home on the basis of identification from photographs, and he was com- mitted by a magistrate. Thereafter he appeared in a lineup, at which he was represented by counsel, and was identified by the victim of another robbery. He was tried for the latter offense before a 12-man jury and convicted by a nine-to-three verdict, as authorized by Louisiana law in cases where the crime is neces- sarily punishable at hard labor. Other state law provisions require unanimity for five-man jury trials of offenses in which the punish- ment may be at hard labor and for 12-man jury trials of capital cases. The Louisiana Supreme Court affirmed the conviction, rejecting appellant’s challenge to the iury-trial provisions as vio- lative of due process and equal protection and his claim that the lineup identification was a forbidden fruit of an invasion of ap- pellant’s Fourth Amendment rights. Appellant conceded that under Duncan v. Louisiana, 391 U.S. 145, which was decided after his trial began and which has no retroactive effect, the Sixth Amendiwent does not apply to his case. Held: 1. The provisions of Louisiana law requiring !ess-than-unanimous jury verdicts in criminal cases do not violate the Due Process Clause for failure to satisfy the reasonable-doubt standard. Pp. 2-7. (a) The mere fact that three jurors vote to acquit does not mean that the nine who vote to convict have ignored their instruc- tions concerning proof beyond a reasonable doubt or that they do not honestly believe that guilt has been thus proved. Pp. 4-5. (b) Want of jury unanimity does not alone establish reason- able doubt. P. 6. 2. The Louisiana legal scheme providing for unanimous verdicts in capital and five-man jury cases but for less-than-unanimous I I JOHNSON v. LOUISIANA Syllabus verdicts otherwise, and which varies the difficulty of proving guilt with the gravity of the offense, was designed to serve the rational purposes of “facilitat[ing], expedit{ing], and reduc[ing] expense in the administrai.on of justice,” and does not constitute an in- vidious classification violative of equal protection. Pp. 7-8. 3. Since no evidence constituting the fruit of an illegal arrest was used at appellant’s trial, the validity of his arrest is not at issue and the lineup was conducted, not by the “exploitation” of the arrest, but under the authority of appellant’s commitment by the magistrate, which purged the lineup procedv'e of any “pri- mary taint.” P. 9. 255 La. 314, 230 So. 2d 825, affirmed. Wuite, J., delivered the opinion of the Court. in which Burcer, C. J. and Biackmun, Powe.Li, and REHNQUIST, JJ., joined. BLACKMUN and Powez1, JJ., filed concurring opinions. Dovatas, J., filed a dissenting opinion, in which BRENNAN and Marsnatzi, JJ., joined. BreNNAN, J., filed a dissenting opinion, in which Mar- SHALL, J., joined. Stewart, J., filed a dissenting opinion, in which BRENNAN and MarsHALL, JJ., joined. MarsHAtt, J., filed a dissent- ing opinion, in which BRENNAN, J., joined. ————————— NOTICE : This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are re- uested to notify the Reporter of Decisions, Supreme Court of the nited States, Washington, D.C. 20543, of any eel or other formal errors, in order that corrections may be made before the pre- liminary print goes to press. SUPREME COURT OF THE UNITED STATES No. 69-5035 h llant, —_ ne mppeien On Appeal From the Su- _ preme Court of Louisiana. Louisiana. [May 22, 1972] Mk. Justice WHITE delivered the opinion of the Court. Under both the Louisiana Constitution and Code of Criminal Procedure, criminal cases in which the punish- ment is necessarily at hard labor are tried to a jury of 12, and the vote of nine jurors is sufficient to return either a guilty or not guilty verdict... The principal question 1La. Const. Art. VII, § 41, provides: “Section 41. The Legislature shall provide for the election and drawing of competent and intelligent jurors for the trial of civil and criminal cases: provided, however, that no woman shall be drawn for jury service unless she shall have previously filed with the clerk of the District Court a written declaration of her desire to be subject to such service. All cases in which the punishment may not be at hard labor shall, until otherwise provided by law, be tried by the judge without a jury. Cases, in which the punishment may be at hard labor, shall be tried by a jury of five, all of whom must concur to render a verdict; cases, in which the punishment is necessarily at hard labor, by a jury of twelve, nine of whom must concur to render 4 verdict; cases in which the punishment may be capital, by a jury of twelve, all of whom must concur to render a verdict.” La. Code Crim. Proc. Art. 782 provides: “Cases in which the punishment may be capital shall be tried by a jury of twelve jurors, all of whom must concur to render a verdict. Cases in which the punishment is necessarily at hard labor shall be tried by a jury composed of twelve jurors, nine of whom must con- cur to render a verdict. Cases in which the punishment may be = 2 JOHNSON v. LOUISIANA in this case is whether these provisions allowing less than unanimous verdicts in certain cases are valid under the Due Process and Equal Protection Clauses of the Four- teenth Amendment.. I Appellant Johnson was arrested at his home on Jan- uary 20, 1968. There was no arrest warrant, but the victim of an armed robbery had identified Johnson from photographs as having committed the crime. He was then identified at a lineup, at wh‘ch he had counsel, by the victim of still another robbery. The latter crime is involved in this case. Johnson }:lea led not guilty, was tried on May 14, 1968, by a 12-mai jury and was con- victed by a nine-to-three verdict. His due process and equal protection challerges to the Louisiana constitu- tional and statutory provisions were rejected by the Louisiana courts, 255 La. 314, 230 So. 2d 825 (1970), and he appealed here. We noted probable jurisdiction. 400 U. S. 900 (1970). Conceding that under Duncan v. Louisiana, 391 U. S. 145 (1968), the Sixth Amendment is not applicable to his case, see DeStefano v. Woods, 392. U. S. 631 (1968), appellant presses his equal protection and due process claims, together with a Fourth Amend- ment claim also rejected by the Louisiana Supreme Court. We affirm. IT Appellant argues that in order to give substance to the reasonable doubt standard which the State, by virtue of the Due Process Clause of the Fourteenth Amend- ment, must satisfy im criminal cases, see Jn re Winship, 397 U. S. 358, 363-364 (1970), that clause must be construed to require a unanimous jury verdict in all imprisonment at hard labor, shall be tried by a jury composed of five jurors, all of whom must concur to render a verdict. Except as provided in Article 780, trial by jury may not be waived.” OO JOHNSON v. LOUISIANA 3 criminal cases. In so contending, appellant does not challenge the instructions in this case. Concededly, the jurors were told to convict only if convinced of guilt beyond a reasonable doubt. Nor is there any claim that, if the verdict in this case had been unanimous, the evi- dence would have been insufficient to support it. Appel- lant focuses instead on the fact that less than all jurors voted to convict and argues that, because three voted to acquit, the reasonable doubt standard has not been satisfied and his conviction is therefore infirm. We note at the outset that this Court has never held jury unanimity to be a requisi‘e of due process of law. Indeed, the Court has more than onc2 expressly said that “[i]n criminal cases due process of law is not denied by a state law . . . which dispenses with the necessity of a jury of twelve, or unanimity in the verdict.” Jordan v. Massachusetts, 225 U. S. 167, 176 (1912) (dictum). Accord, Marwell v. Dow, 176 U. S. 581, 602, 605 (1900) (dictum). These statements, moreover, coexisted with cases indicating that proof of guilt beyond a reasonable doubt is implicit in constitutions recognizing “the funda- mental principles that are decmed essential for the pro- tection of life ‘and liberty.” Davis v. United States, 160 U. S. 469, 488 (1895). See also Leland v. Oregon, 343 U. S. 790, 802-803 (1952) (dissenting opinion) ; Brinegar v. United States, 338 U. S. 160, 174 (1949); Coffin v. United States, 156 U. S. 432, 453-460 ( 1895).? ? Coffin, supra, contains a lengthy discussion on the requirement of proof beyond a reasonable doubt and other similar standards of proof in ancient Hebrew, Greek, and Roman law, as well as in the common law of England. This discussion suggests that the Court of the late 19th century would have held the States bound by the reasonable doubt standard under the Due Process Clause of the Fourteenth Amendment on the assumption that the standard was essential to a civilized system of criminal procedure. See generally Duncan v. Louisiana, supra, at 149-150 n. 14. 4 JOHNSON v. LOUISIANA Entirely apart from these cases, however, it is our view that the fact of three dissenting votes to acquit raises no question of constitutional substance about either the integrity or the accuracy of the majority verdict of guilt, Appellant’s contrary argument breaks down into two parts, each of which we shall consider separately: first, that nine individual jurors will be unable to vote conscientiously in favor of guilt beyond a reasonable doubt when three of their colleagues are arguing for acquittal, and second, that guilt cannot be said to have been proved beyond a reasonable doubt when one or more of a jury’s members at the conclusion of deliberation still possess such a doubt. Neither argument is persuasive. Numerous cases have defined a reasonable doubt as one “based on reason which arises from the evidence or lack of evidence.” United States v. Johnson, 343 F. 2d 5, 6 n. 1 (CA2 1965). Accord, e. g., Bishop v. United States, 107 F. 2d 297, 303 (CADC 1939) ; United States v. Schneiderman, 106 F. Supp 906, 927 (SD Cal. 1952); United States v. Haupt, 47 F. Supp. 836, 840 (ND IIL), rev'd on other grounds, 136 F. 2d 661 (CA7 1943). In Winship, supra, the Court recognized this evidentiary standard as “ ‘impress[ing] on the trier of fact the neces- sity of reaching a subjective state of certitude of the facts in issue.” 397 U. S., at 364 (citation omitted). In considering the first branch of appellant’s argument, we can find no basis for holding that the nine jurors who _ voted for his conviction failed to follow their instructions concerning the need for proof beyond such a doubt or that the vote of any one of the nine failed to reflect an honest belief that guilt had been so proved. Appellant, in effect, asks us to assume that, when minority jurors express sincere doubts about guilt, their fellow jurors will nevertheless ignore them and vote to convict even if deliberation has not been exhausted and minority jurors have grounds for acqui:tal which, if pursued, might per- JOHNSON v. LOUISIANA 5 suade members of the majority to acquit. But the mere fact that three jurors voted to acquit does not in itself demonstrate that, had the nine jurors of the majority attended further to reason and the evidence, all or one of them would have developed a reasonable doubt about guilt. We have no grounds for believing that majority jurors, aware of their responsibility and power over the liberty of the defendant, would simply refuse to listen to arguments presented to them in favor of acquittal, terminate discussion and render a verdict. On the con- trary it is far more likely that a juror presenting reasoned argument in favor of acquittal would ¢ither have his arguments answered or would carry enough other jurors with him to prevent conviction. A majority will cease discussion and outvote a minority only afte: reasoned discussion has ceased to have persuasive effect or to serve any other purpose—when a minority, that is, con- tinues to insist upon acquittal without having persuasive reasons in support of its position. At that juncture there is no basis for denigrating the vote of so large a majority of the jury or for refusing to accept their deci- sion as being, at least in their minds, beyond a reasonable doubt. Indeed, at this point, a “dissenting juror should consider whether his doubt was a reasonable one.. . {when it made] no impression upon the minds of sc many men, equally honest, equally intelligent with himself.” Allen v. United States, 164 U. S. 492, 501 (1896). Ap- pellant offers no evidence that majority jurors simply ignore the reasonable doubts of their cdlleagues or other- wise act irresponsibly in casting their votes in favor of conviction, and before we alter our own longstanding perceptions about jury behavior and overturn a consid- ered legislative judgment that unanimity is not essential to reasoned jury verdicts, we must have some basis for doing so other than unsupported assumptions. 6 JOHNSON v. LOUISIANA We conclude, therefore, that, as to the nine jurors who voted to convict, the State satisfied its burden of provirg guilt beyond any reasonable doubt. The remaining question under the Due Process Clause is whether the vote of three jurors for acquittal can be said to impeach the verdict of the other nine and to demonstraie that guilt was not in fact proved beyond such doubt. We hold that it cannot. Of course, the State’s proof could perhaps be regarded as more certain if it had convinced all 12 jurors instead of only nine; it weuld have been even more compelling if it had been required to convince and had, in fact, convinced 24 or 36 jurors. But the fact remains that nine jurors— a substantial majority of the jury—were convinced by the evidence. In our view disagreement of three jurors does not alone establish reasonable doubt, particularly when such a heavy majority of the jury, after having considered the dissenters’ views, remains convinced of guilt. That rational men disagree is not in itself equiva- lent to a failure of proof by the State, nor does it indicate infidelity to the reasonable doubt standard. Jury ver- dicts finding guilt beyond a reasonable doubt are regu- larly sustained even though the evidence was such that the jury would have been justified in having a reascnable doubt, see United States v. Quarles, 387 F. 2d 551, 554 (CA4 1967); Bell v. United States, 185 F. 21 302, 310 (CA4 1950); even though the trial judge might not have reached the same conclusion as the jury, see Takahashi v. United States, 143 F. 2d 118, 122 (CA9 1944); and even though appellate judges are closely divided on the issue whether there was sufficient evidence to support a con- viction. See United States v. Johnson, 433 F. 2d 1160, 1166 (CADC 1970); United States v. Manuel-Raca, 421 F. 2d 781, 783 (CA9 1970). That want of jury unanimity is not to be equated with the existence of a reasonable doubt emerges even more clearly from the fact that, when Yr ail JOHNSON v. LOUISIANA 7 a jury in a federal court, which operates under the unanimity rule and is ‘instructed to acquit a defendant if it has a reasonable doubt about his guilt, see Holt v. United States, 218 U. 8. 245, 253 (1910); Agnew v. United States, 165 U. S. 36, 51 (1897); W. Mathes & E. Devitt, Federal Jury Practice and Instructions § 8.01 (1965), cannot agree unanimously upon a verdict, the defendant is not acquitted, but is merely given a new trial. Downum v. United States, 372 U. S. 734, 736 (1963); Dreyer v. Illinois, 187 U. S. 71, 85-86 (1902) ; United States v. Perez, 9 Wheat. 579, 580 (1824). If the doubt of a minority of jurors indicates the existence of a reasonable doubt it would appear that a defendant should receive a directed verdict of acquittal rather than a retrial. We conclude, therefore, that verdicts rendered by nine out of 12 jurors are not automatically invalidated by the disagreement of the dissenting three. Appellant was not deprived: of due process of law. III Appellant also attacks as violative of the Equal Pro- tection Clause the provisions of Louisiana law requiring unanimous verdicts in capital and five-man jury cases, but permitting less-than-unanimous verdicts in cases such as his. We conclude, however, that the Louisiana statu- tory scherne serves a rational purpose and is not subject to constitutional challenge. In order to “facilitate, expedite, and reduce expense in the administration of justice,” State v. Lewis, 129 La. 800, 804, 56 So. 893, 894 (1911), Louisiana has permitted less serious crimes to be tried by five jurors with unani- mous verdicts, more cerious crimes have required the assent of nine of 12 jurors, and for the most serious crimes 4 unanimous verdict of 12 jurors is stipulated. In appel- lant’s case, nine jurors rather than five or 12 were re- 8 \ “JOHNSON v. LOUISIANA ® quired for a verdict. We discern nothing invidious in this classification. We have held that the States are free under the Federal Constitution to try defendants with juries of less than 12 then. Witliams v. Florida, 399 U. S. 78 (1970). Three jurors here voted to acquit, but from what we have earlier sa.d, this does not demon- strate that appellant was convicted on a lower standard of proof. To obtain a conviction in any of the categories under Louisiana law, the State must prove guilt beyond reasonable doubt, but the number of jurors who must be so convinced increases with the seriousness of the crime and the severity of the punishment that may be imposed. We perceive nothing unconstitutional or invidiously dis- - criminatory, however, in a State’s insisting that its burden _ of proof be carried with more jurors where more serious crimes or more severe punishments are at issue. Appellant nevertheless insists that dispensing with unanimity in his case disadvantaged him as compared with those who commit less serious or capital crimes. With. respect to the latter, he is correct; the State does make conviction more difficult by requiring the assent of ali 12 jurors. Appellant might well have been ulti- mately acquitted had he committed a capital offense. But as we have indicated, this does not constitute a denial of equal protection .of the law; the State mav treat capitai offenders differently without violating the constitutional rights of those charged with lesser crimes. As to the crimes triable by a five-man jury, if appe!- lant’s position is that it is easier to convince nine of 12 jurors than to convince all of five, he is simply ehal- lenging the judgment of the Louisiana Legislature. That body obviously intended to vary the difficulty of proving guilt with the gravity of the offense and the severity of the punishment. - We remain unconvinced by anything -— JOHNSON v. LOUISIANA « Oo appellant has presented that this legislative judgment was defective in any constitutional sense. IV Appellant also urges that his nighttime arrest without a warrant was unlawful in the absence of a valid excuse for failing to obtain a warrant and further that his sub- sequent lineup identification was a forbidden fruit of the claimed invasion of his Fourth Amendment rights. The validity, of Johnson’s arrest, however, is beside the point here, for it is clear that no- evidence which might prop- erly be characterized as the fruit of an illegal entry and arrest was used against him at his trial. Prior to the lineup, at which Johnson was represented by counsel, he was brought before a committing magistrate. to advise him of his nights and set bail. At the time of the lineup, the detention of the appellant was. under the authority. of this commitment. Consequently, the lineup was con- ducted not by “exploitation” of the challenged arrest but “by means sufficiently distinguishable to be purged of the primary taint.” Wong Sun v. United Séates, 371 U.S. 471, 488 (1962). The judgment of the Supreme Court of Louisiana is therefore ' Affirmed. . >. , » SUPREME COURT OF THE UNITED STATES Nos. 69-5035 & 69-5046 Frank Johnson, Appellant, 69-5035 v. ~ Louisiana. | On Appeal From the Su- preme Court of Louisiana. Robert Apodaca, Harry) Morgan Cooper, Jr., and On Writ of Certiorari te Arnold Madden, eileen ° = the Court of Appeals of 69-5046 ov, Oregon. Oregon. | [May 22, 1972] Mr. Justice BLACKMUN, concurring. I join the Court’s opinion and judgment in each of these cases. I add only the comment, which should be obvious and should not need saying, that in so doing I do not imply that I regard a State’s split verdict system as a wise one. My vote means only that I cannot con- clude that the system is constitutionally offensive. Were I a legislator, I would disfavor it as a matter of policy. Our task here, however, is not to pursue and strike down what happens to impress us as undesirable legislative policy. . I do not hesitate to say, either, that a system employ- ing a 7-5 standard, rather than a 9-3 or 75% minimum, would afford me great ditticulty. As Mr. Justice WHITE points out in Johnson, ante, p. 6, “a substantial majority of the jury are to be convinced. That is all thai is before us in each of these cases. : nes ¢ bet U NN «fis ar SUPREME COURT OF THE UNITED STATES Nos. 69-5035 & 69-5046 Frank /ohnson, Appellant, 69-5035 v. Louisiana. ‘ On Appeal From the Su- preme Court of Louisiana. Robert Apodaca, Harry) Morgan Cooper, Jr., and oo James Arnold Madden, On Writ of Certiorari to } the Court of Appeals of Petitioners, wane Oregon. 69-5046 v. Oregon. ) [May 22, 1972] Mr. Justice PowELL, concurring in No. 69-5035 and concurring in the judgment in No. 69-5046. I concur in the judgment of the Court that convictions based on less than unanimous jury verdicts in these cases did not deprive criminal defendants of due process of law under the Fourteenth Amendment. As my reasons for reaching this conclusion in the Orégon case differ from those expressed in the plurality opinion by Mr. Justice Wuire, I will state my views separately. I 69-5035 Duncan v. Louisiana, 391 U. S. 145 (1968), stands for the proposition that criminal defendants in state courts are entitled to trial by jury.!. The source of that right is the Due Process Clause of the Fourteenth Amend- . ment. Due process, as consistently interpreted by this Court, commands that citizens subjected to criminal Process in state courts be accorded those rights which are ‘That right, of course, is reserved for those crimes which may be deemed “serious.” See id., at 159-162 ; Bloom v. Illinois, 391 U. S. 194 (1968); Baldwin v. New York, 399 U. S. 66 (1970). 2 JOHNSON v. LOUISIANA fundamental to a fair trial in the context of our “Ameri- can scheme of justice.” Jd., at 149. The right of an accused person to trial by a jury of his peers was a cherished element of the English common law long be- — fore the American Revolution. In this country, prior to Duncan, every State had adopted a criminal adjudicatory process calling for the extensive use of petit juries. /d., at 150 n. 14; 4 urner v. Louisiana, 379 U.S. 466, 471 n. 9 (1965). Because it assures the interposition of an im- partial assessment of one’s peers between the defendant and his accusers, the right to trial by jury deservedly ranks as a fundamental of our system of jurisprudence. With this principle of due process, I am in full accord. In DeStefano v. Woods, 392 U.S. 631 (1968), an Ore- gon petitioner sought to raise the question, left open in Duncan, whether the right to jury trial in a state court also contemplates the right to a unanimous verdict.’ Be- cause the Court concluded that Duncan was not to have retroactive applicability, it found it unnecessary to decide whether the Fourteenth Amendment requires unanimity. The trial in the case before the Court at that time oc- curred several years prior to May 20, 1968, the date of decision in Duncan. In the Louisiana case now before us, the petitioner also was convicted by a less than unanimous verdict before Duncan was decided. Ac- cordingly, I read DeStefano as foreclosing consideration in this case of the question whether jury trial as guaran- teed by the Due Process Clause contemplates a corollary requirement that its judgment be unanimous. Indeed, in Johnson v. Louisiana, appellant concedes that the nonretroactivity of Duncan prevents him from raising his due process argument in the classic “funda- mental fairness” language adopted there. Instead he 2 This contention was raised in Carcerano v. Gladden, No. 941, which was consolidated and disposed of along with the DeStefano opinion. Be JOHNSON v. LOUISIANA 3 \ claims that he is deprived of due process because a con- yiction in which only nine of 12 jurors joined is not one premised on a finding of guilt beyond a reasonable-doubt, held to be a requisite element of due process in In re Winship, 397 U. S. 358, 364 (1970). For the reasons stated in the majority opinion, I do not agree that Louisiana’s less than unanimous verdict rule undercuts the applicable standard of proof in criminal prosecutions in that- State. , ‘ Appellant also asks this Court to find a violation of the equal protection clause in Louisiana’s constitutional and statutory provisions establishing the contours of the jury trial right in that State. The challenged provisions divide those aecused of crimes into thfee=Categories de- pending on the severity of the possible punishment: those charged with offenses.1or which the punishment might be-at hard labor are entitled to a five-juror, unanimous verdict ; those charged with offenses for which the punish- ment will necessarily be at hard labor are entitled to a verdict in which nine of 12 jurors must concur; and those charged with capital offenses are entitled to a 12-juror, unanimous verdict. La. Const. Art. VII, § 41; La. Code Crim. Proc. Art. 782. Such distinctions between classes of defendants do not constitute invidious discrimination against any one of the classes unless the state’s classifica- tion can be said to lack a reasonable or rationa! basis. We have been shown no reason to question the rationality of Louisiana’s tri-level system. i, therefore. join the Court’s opinion in Johnson v. Louisiana affirming the decision below.* . *In addition to the jury trial issues in ‘his case, I also join Part IV of the Court’s opiniox insofar as it concludes that the lineup identification was not the fruit of the prior warrantless arrest. Wong Sun v. United States, 371 U. S. 471 (1963). Under the cir- cumstances of this case, I find it unnecessary to reach the question whether appellant’s warrantless arrest was constitutionsily invalid. ee ee 4 JOHNSON v. LOUISIANA II 69-5046 In the Oregon case decided today, Apodaca et al. y. Oregon, the trials occurred after Duncan was decided. The question left unanswered in Duncan and DeStefano is therefore squarely presented. I concur in the plurality “opinion in this case’ insofar as it concludes that a de- fendant in a state court may constitutionally be con- victed by less than a unanimous verdict, but I am not in accord with a major premise upon which that judg- ment is based. Its premise is that the concept of jury trial, as applicable to the States under the Fourteenth Amendment, must be identical in every detail to the con- cept required in federal courts by the Sixth Amendment.‘ I do not think that all of the elements of jury trial within the meaning of the Sixth Amendment are necessarily embodied in or incorporated into the Due Process Clause of the Fourteenth Amendmert. As Mr. Justice Fortas, concurring in Duncan v. Louisiana, 391 U.S., at 213, said: “Neither logic nor history nor the intent of the draftsmen of the Fourteenth Amendment can pos- sibly be said to require that the Sixth Amendment or its jury trial provision be applied to the States together with the total gloss that the Court’s de- cisions have supplied.” In an unbroken line “f cases reaching back into the late 1800's, the Justices of this Court have recognized, virtually without dissent, that unanimity is one of the indispensable features of federal jury trial. Andres v. United States, 333 U. S. 740, 748-749 (1948) ; Patton v. United States, 281 U. S. 276, 288-290 (1930) ; Hawan v. Mankichi, 190 U.S. 197, 211-212 (1903) (see also Mr. * Jury trial in federal cases is also assured by Art. III, § 2, of the Constitution: “The trial of all Crimes . . . shall be by Jury.” / JOHNSON v. LOUISIANA 5 Justice Harlan’s dissenting opinion); Mazweli v. Dow, 176 U. S. 581, 586 (1900) (see also Mr. Justice Harlan’s dissenting opinion); Thompson v. Utah, 170 U. 8S. 343, 355 (1898).° In these cases, the Court has presumed that unanimous verdicts are essential in federal jury trials, not because unanimity is necessarily fundamental to the function performed by the jury, but because that result is mandated by history.’ The reasoning which ’See also Mr. Justice Wuirte’s opinion for the Court in Swain v. Alabama, 380 U. S. 202, 211 (1965), stating, in dictum, that “Ala- bama adheres to the common-law system of trial by an impartial jury of 12 men who must unanimously agree on a verdict, the system followed in the federal courts by virtue of the Sixth Amendment.” (Emphasis supplied.) The same result has been attained with respect to the right to -. Jury trial in civil cases under the Seventh Amendment. See Amer- ican Publishing Co. v. Fisher, 166 U.S. 464, 467-468 (1897); Spring- ville v. Thomas, 166 U. S. 707 (1897). °The process of determining the content of the Sixth Amendment right to jury trial has long been one of careful evaluation of, and strict adherence to the» limitations on, that right as it was known in criminal trials at common law. See Williams v. Florida, 399 U. S. 78, 117, 122-129 (1970) (Mr. Justice Harlan’s separate opinion). A recent example of that process of constitutional adjudication may be found in Part II of the Court’s opinion in Duncan v, Louisi- ana, 391 U. S., at 159-162,‘in which “petty” offenses were excluded from the rule requiring jury trial because such “offenses were tried without juries both in England and in the Colonies.” The Court found “no substantial evidence that the F ramers intended to depart from this established common-law practice.” Jd., at 160. To the. same effect, see Mr. Justice Harlan’s dissent in Baldwin v. New York (appearing in Williams vy. Florida, 399 U. S., at 119-121). Also representative of this historical approach to the Sixth Amend- ment are the exhaustive majority and dissenting opinions in Sparf v. United States, 156 U.S. 51 (1895), in which the Court ultimately concluded that federal criminal juries were empowered only to decide questions of “fact.” Rather than attempting to determine whether the fact-law distinction was desirable or whether it might be essential to the function performed by juries, the decision was premised on 6 JOHNSON v. LOUISIANA runs throughout this Court’s Sixth Amendment prece- dents is that, in amending the Constitution to guarantee the right to jury trial, the Framers desired to preserve the jury safeguard as it was known to them at common law.’ At the time the Bill of Rights was adopted, una- nimity had long been established as one of the attributes of a jury conviction at common law.* It therefore seems to me, in accord both with history and precedent, that the Sixth Amendment requires a unanimous jury verdict to convict in a federal criminal trial. But it is the Fourteenth Amendment, rather than the Sixth, which imposes upon the States the requirement that they provide jury trials to those accused of serious crimes. This Court. has said, in cases decided when the intendment of that amendment was not as clouded by the passage of time, that due process does not require that the States apply. the federal jury trial right with all its gloss. In Marwell v. Dow, 176 U.S., at 605, Mr. the conclusion that English and Colonial juries had no right to decide questions of law. The same historicai approach accounts for the numerous Supreme Court opinions (see text accompanying n. 5), finding unanimity to be one of the attributes subsumed under the term “jury trial.” No reason, other than the conference committee’s revision of the House draft of the Sixth Amendment, has been offered to justify departure from this Court’s prior precedents. The admitted ambiguity of that piece of legislative history is not sufficient, in my view, to override the unambiguous history of the common law right. Williams v. Florida, 399 U.S., at 123 n. 9. 7 See, e. g., R. Perry, Sources of Our Liberties, 270, 281-282, 288, 429 (1959); 3 J. Story, Commentaries on the Constitution of the United States 652-653 (1st ed. 1833). 8 See, e. g., 4 W. Blackstoné, Commentaries on the Laws of Eng- land *376 (Cooley ed. 1899); W. Forsyth, History of Trial By Jury 238-258 (1852); M. Hale, Analysis of the Law of England 119 (1716). EE JOHNSON v. LOUISIANA 7 Justice Peckham, speaking for eight of the nine members of the Court, so stated: “[W hen providing in their constitution and legis- lation for the manner in which civil or criminal ac- tions shall be tried, it is in entire conformity with the character of the Federal Government that [the States] should have the right to decide for themselves what shall be the form and character of the pro- cedure in such trials, . . . whether there shall be a jury of twelve or a lesser number, ard whether the verdict must be unanimous or not... .” Again, in Jordan v. Massachusetts, 225 U. S. 167, 176 (1912), the Court concluded that “[i]n crimine] -ases due process of law is not denied by a state law which dis- penses with . . . the necessity of a jury of twelve, or unanimity in the verdict.” It is true, of course, that the Marwell and Jordan Courts went further and concluded that the States might dispense with jury trial altogether. That conclusion; grounded on a more limited view of due process than has been accepted by this Court in recent years,° was rejected by the Court in Duncan. But I find nothing in the °T agree with Mr. Justice Wuire’s analysis in Duncan that the departure from earlier decisions was. in large measure, a product of a change in focus in the Court’s approach to due process. No longer are questions regarding the constitutionality of particular criminal Procecures resolved by focusing alone on the element in question and ascertaining whether a system of criminal justice might be imag- ined in which a fair trail could be afforded in the absence of that particular element. Rather, the focus is, as it should be, on the fundamentality of that element viewed in the context of the basic Anglo-American jurisprudential system common to the States. Dun- can v. Lowsiana, 391 U.S., at 149-150 n. 14. That approach to due Process readily accousts both for the conclusion that jury trial is fundamental and that unanimity is not. See Part III, infra. § JOHNSOD v. LOUISIANA constitutional principle upon which Duncan is based, or in other precedents, which requires repudiation of the views expressed in Maxwell and Jordan with respect to the size of a jury and the unanimity of its verdict. Mr. Justice Fortas, concurring in Duncan, commented on the distinction between the requirements of the Sixth Amend- ment and those of the Due Process Clause and suggested the appropriate framework for analysis of the issue in this case. “T see no reason whatever ... to assume that our decision today should require us to impose federal requirements such as unanimous verdicts or a jury of 12 upon the States. We may well conclude that thes. and other features of federal jury practice are by 10 means fundamental—that they are not es- sential to due precess of law—and that they are not obligatory on the States.” Duncan v. Louisiana, 391 U.S., at 213. The question, therefore, which shoula be addressed in this case is whether unanimity is in fact SO fundamental to the essentials of jury trial that this particular require- ment of the Sixth Amendment is necessarily binding on the States under the Due Process Clause of the Four- ~— teenth Amendment. An affirmative answer, ignoring the strong views previously expressed to the contrary by this Court in Marwell and Jordan, would give unwar- ranted and unwise scope to the incorporation doctrine as it applies to the due process right of state criminal de- fendants to trial by jury. The importance which our system attaches to trial by jury derives from the special confidence we repose in a “body of one’s peers to determine guilt or innocence as a safeguard against arbitrary law enforcement.” Wil- liams v. Florida, 399 U.S. 78, 87 (1970). It is this safe- guarding function, preferring the commonsense judgment of a jury as a bulwark “against the corrupt or overzealous “JOHNSON v. LOUISIANA 9 prosecutor and against the compliant, biased, or eccen- tric judge,” *® which lies at the core of our dedication to the principles of jury determination of guilt or inno- cence.'' This is the fundamental of jury trial which brings it within the mandate of due process. It seems to me that this fundamental is adequately preserved by the jury verdict provision of the Oregon Constitution. There is no reason to believe, on the basis of experience in Oregon or elsewhere, that a unanimous decision of 12 jurors is more likely to serve the high purpose of jury trial, or is entitled to greater respect in the community, than the same decision joined in by 10 members of a jury of 12. The standard of due process assured by the Oregon Constitution provides a sufficient guarantee that the government will not be permitted to impose its judg- ment on an accused without first meeting the full burden of its prosecutorial duty.” © Duncan v. Louisiana, 391 U.S., at 156. See also Baldwin v. New York, 399 U. S. 66, 72 (1970). "1 Indeed, so strongly felt was the jury’s role as the protector of “innocence against the consequences of the partiality and undue bias of judges in favor of the prosecution,” that, at an earlier point in this country’s history, some of the States deemed juries the final arbiters of all questions arising in criminal prosecutions, whether factual or legal. To allow judges to determine the law wes con- sidered by some States to pose too great a risk of judicial oppres- sion, favoring the State above the accused. See, e. g., Vermont v. Croteau, 23 Vt. 14, 21 (1849); Howe, Juries as Judges of Criminal Law, 52 Harv. L. Rev. 582 (1939). That historical preference for jury decisionmaking is still reflected in the criminal procedures of two States. Ind. Const., Art. I, § 19, Md. Const., Art. XV. § 5. See Brady v. Mary. ind, 373 U.S. 83 (1963); Wyley v. Warden, 372 F. 2d 742, 746 (CA4), cert denied, 389 U.S. 863 (1967); Beavers V. Indiana, 236 Ind. 549, 141 N. E. 2d 118 (1957). The available empircal research indicates that the jury trial protection is not substantially affected by less than unanimous verdict requirements. Kalven and Zeisel, in their frequently cited study of American juries (The American Jury | Phoenix ed. 1971)), hote that where unanimity is demanded 5.6% of the cases result in 10 JOHNSON v. LOUISIANA ' Moreover, in holding that the Fourteenth Amend- ment has incorporated “jot-for-jot and case-for-case” every element of the Sixth Amendment, the Court dero- gates principles of federalism which are basic to our sys- tem. In the name of uniform application of high stand- ards of due process, the Court has embarked upon a course of constitutional interpretation which deprives the States of freedom to experiment with adjudicatory proc- esses different from the federal model. At the same time, the Court’s understandabk unwillingness to im- pose requirements which it finds unnecessarily rigid (e. g., Williams v. Florida, 399 U.S. 78), has culminated in the dilution of federal rights which were until these decisions, never seriously questioned. The doubly undesirable con- sequence of this reasoning process, labeled by Mr. Justice Harlan as “constitutional schizophrenia,” id., at 136, may well be detrimental both to the state and fed- eral criminal justice systems. Although it is perhaps late in the day for an expression of my views, I would have been in accord with the opinions in similar cases by THrE CHIEF Justice and Justices Harlan, Stewart, and Fortas "' that, at least in defining the elements of the hung juries. /d., at 461. Where unanimity is not required, avail- able statistics indicate that juries will still be hung in over 3% of the cases. Thus, it may be estimated roughly that Oregon’s prac- ice may result in verdicts in some 2.5% more of the cases—cases in which no verdict would be returned if unanimity were demanded. Given the large number of causes to which this percentage disparity might be attributed, and given the possibiliiv of conviction on retrial, it is impossible to conclude that this percentage represents con- victions obtained under standards offensive to due process. 13 Duncan v. Lowsiana, supra, at 181 (Mr. Justice Harlan’s dis- senting opinion). 147d., at 173-183 (Mr. Justice Harlan, with whom Mr. Justice Srewart joined, dissenting); Bloom v. Illinois, 391 U.S. 194, 211 (1968) (Mr. Justice Fortas, concurring); Baldwin v. New York, 399 U. S. 66, 76-77 (THe Cuter Justice, dissenting); Williams v. Florida, 399 U.S., at 117, 148 (1970) (separate concurring opinions - JOHNSON v. LOUISIANA 11 right to jury trial, there is no sound basis for interpreting the Fourteenth Amendment to require blind adherence by the States to all details of the federal Sixth Amend- ment standards.’® While the Civil War Amendments altered substan- tially the balance of federalism, it strains credulity to believe that they were intended to deprive the States of all freedom to experiment with variations in jury trial procedure. In an age in which empirical study is in- creasingly relied upon as a foundation for decision-mak- ing, one of the more obvious merits of our federal system is the opportunity it affords each State,,if its people so choose, to become a “laboratory” and to experiment with a range of trial and precedural alternatives. Although - the need for the innovations that grow out of diversity has always been great, imagination unimpeded by un- warranted demands for national uniformity is of special importance at a time when se ious doubt exists as to the adequacy of our criminal justice system. The same diversity of local legislative responsiveness which marked the development of economic and social reforms in this country,’® if not barred by an unduly restrictive appli- cation of the Due Process Clause, might well lead to valuable innovations with respect to determining—fairly by Mr. Justice Harlan and Mr. Justice Stewart). Cf. Mr. Justice Dovc.as’ concurring opinion in Alexander y. Lousiana, 40 U. S. L. W. 4365, 4369 n. 4 (1972). **My unwillingness to accept the “incorporationist” notion that jury trial must be applied with total uniformity does not require that I take issue with every precedent of this Court applying various criminal procedural rights to the States with the same force that they are applied in federal courts. See Mr. Justice Fortas’ opinion in Duncan y. Louisiana, 391 U. S., at 214. See Mr. Justice Brandeis’ oft quoted dissent in New State Ice Co. v. Liebmann, 285 U.S, 262. 280, 309-311 (1932), in which he details the stultifying potential of the substantive due process doctrine. 12 JOHNSON v. LOUISIANA and inure expeditiously—the guilt or innocence of the accused. . Viewing the unanimity controversy as one requiring a fresh look at the question of what is fundamental in jury trial, I see no constitutional infirmity in the provision adopted by the people of Oregon. It is the product of a constitutional amendment, approved by a vote of the people in the State, and appears to be patterned on a provision of the American Law Institute’s Code of Crim- inal Procedure.” A similar decision has been echoed more recently in England where the unanimity require- ment was abandoned by statutory enactment.” Less than unanimous verdict provisions also have been viewed with approval by the American Bar Association’s Crim- inal Justice Project.’? Those who have studied the jury mechanism and recommended deviation from the historic rule of unanimity have found a number of considerations to be significant. Removal of the unanimity requirment could well minimize the potential for hung juries oc- casioned either by bribery or juror irrationality. Fur- thermore, the rule that juries must speak with a single voice often leads, not to full agreement among the 12 but to agreement by none and compromise by all, despite the frequent absence of a rational basis for such compro- mise? Quite apart from whether Justices sitting on 17 ALI, Code of Criminal Procedure § 335 (1931). 18 Criminal Justice. Act § 13 (1967) (Great Britain). 19 ABA, Project on Minimum Standards for Criminal Justice, Standards Relating to Trial By Jury §1.1 (Approved Draft, 1968) (see also commentary, pp. 25-28). 20 See, e. g., Kalven & Zeisel, The American Jury—Notes for an English Controversy, 48 Chi. B. Rec. 195 (1967); Samuels, Crim- inal Justice Act, 31 Mod. L. Rev. 16, 24-27 (1968); Comment, Waiver of Jury Unanimity—Some Doubts About Reasonable Doubt, 21 U. Chi. L. Rev. 438, 444-445 (1954); Comment, Should Jury Verdicts Be Unanimous in Criminal Cases?, 47 Ore. L. Rey. 417 (1968). JOHNSON v. LOUISIANA 13 this Court would have deemed advisable the adoption of any particular less than unanimous jury provision, I think that considerations of this kind reflect a legitimate basis for experimentation and deviation from the fed- eral blueprint.”* CGR TOM III Petitioners in Apodaca et al. v. Oregon, in addition to their primary contention that unanimity is a requirement of state jury trials because the Fourteenth Amendment “incorporates” the Sixth, also assert that Oregon’s con- stitutional provision offends the federal constitutional guarantee against the systematic exclusion of any group within the citizenry from participating in the criminal trial process. While the systematic exclusion of identi- fiable minorities from jury service has long been recog- nized as a ‘iolation of the Equal Protection Clause (see, r e. g., Whii as v. Georgia, 385 U. S. 545 (1967); Strauder i v. West Virginia, 100 U. S. 303 (1880)), in more recent years the Court has held that criminal defendants are entitled, as a matter of due process, to 4 jury drawn from a represervative cross-section of the community. This is an essential element of a fair and impartial jury trial. See Williams v. Florida, 399 U. S., at 100; Alez- e ander v. Louisiana, 40 U. S. L. W. 4365, 4368 (1972) (Mr. Justice Dovatas’ concurring opinion). Peti- tioners contend that less than unanimous jury verdict provisions undercut that right by implicitly permitting RAEN OREN SONIA TAI EP ELT LR EINES TEL *1See Oregon v. Gann, 254 Ore. 549, 463 P. 2d 570 (1969). Approval of Oregon’s 10-2 requirement does not compel accept- ance of all other majority-verdict alternatives. Due process and its mandat: of ‘basic fairness often requires the drawing of difficult lines. See Francis v. Resweber, 329 U.S. 459, 466, 471 (1947) (Mr. Justice Frankfurter, concurring). Full recognition of the function performed by jury trials, coupled with due respect for the pre- sumptive validity of state laws based on rational considerations sueh as those mentioned above, will assist in finding the required balance when the question is presented in a different context. 4 14 JOHNSON v. LOUISIANA in the juryroom that which is prohibited in the jury venire selection process—the exclusion of minority group viewpoints. They argue that unless unanimity is re- quired even of a properly drawn jury, the result—whether conviction or acquittal—may be the unjust product of racism, bigotry or an emotionally inflamed trial. Such fears fnaterialize only when the jury’s majority, responding to these extraneous pressures, ignores the evidence and the instructions of the court as well as the rational arguments of the minority. ‘ihe risk, hewever, that a jury in a particular case will fail to meet its high responsibility is inherent in any system which commits decisions of guilt or innocence to untrained laymen drawn at random from the community. In part, at least, the majority-verdict rule must rely on the same principle which underlies our historic dedication to jury trial: both systems are premised on the conviction that each juror will faithfully perform his assigned duty. Mr. JUSTICE Dove.as’ dissent today appears to rest on the contrary assumpiion that the members of the jury comprising the majority have no duty to consider the minority’s view- point in the course of deliberation. Characterizing the jury’s consideration of minority views as mere “polite and academic conversation,” or “courtesy dialogue,” he concludes that a jury is under no obligation in Oregon to deliberate at all if 10 jurors vote together at the out- set. Post, at —-. No such power freely to shut off competing views is implied in the record in this case and it is contrary to basic principles of Jury participation in the criminal process. While there may be, of course, reasonable differences of opinion as to the merit of the speculative concerns expressed by these petitioners and reflected in the dissenting opinion, I find nothing in Ore- gon’s experience to justify the apprehension that juries not bound by the unanimity rule will be more likely to ignore their historic responsibility. Moreover, the States need not rely on the presumption JOHNSON v. LOUISIANA 15 of regularity in a vacuum since each has at its disposal protective devices to diminish significantly the prospect of jury irresponsibility. Even before the jury is sworn substantial protection against the selection of a repre- sentative but wilfully irresponsible jury is assured by the wide availability of peremptory challenges and challenges for cause.” The likelihood of miscarriage of justice is further diminished by the judges’ use of full jury in- structions, detailing the applicable burdens of proof, in- forming the jurors of their duty to weigh the views of fellow jurors,”* and reminding them of the solemn re- sponsibility imposed by their oaths. Trial judges also retain the power to direct acquittals in cases in which the evidence of guilt is lacking, or to set aside verdicts once rendered when the evidence is insufficient to support a conviction. Furthermore, in cases in which public emotion runs high or pretrial publicity threatens a fair trial, judges possess broad power to grant changes of venue,’ and to impose restrictions on the extent of press coverage.”° In light of such protections it is unlikely that the Oregon “ten-of-twelve” rule will account for an increase in the number of cases in which injustice will be occa- sioned by « biased or prejudiced jury. It may be wise to recall Mr. Justice Wuite’s admonition in Murphy v. Waterfront Comm’n, 378 U. S. 52, 102 (1963), that the Constitution “protects against real dangers, not remote and speculative possibilities.” . Since I do not view Oregon’s less than unanimous jury verdict require- ment as violative ofthe due process guarantee of the Fourteenth Amendment, I concur in the Court’s affrm- ance of these convictions. *? See, e. g., Swain v. Alabama, 380 U. S. 202, 209-222 (1968). *8 Allen v. United States, 164 U. 3. 492 (1896). ** See, e. g., Irvin v. Doud, 366 U. 8. 717 (1961). *° See, e. g., Sheppard v. Mazwell, 384 U.S. 333 (1966); Estes v Texas, 381 U. 8. 532 (1965). i i hot LPL ENO LE LIOR ENO IA YAO AOE M8 ARE PRO MENT REARTD A tH Ath HSS S RRR ey MOM EC RI SUPREME COURT OF THE UNITED STATES Nos. 69-5035 & 69-5046 Frank Johnson, Appellant, } 69-5035 v. Louisiana._ On Appeal From the Su- preme Court of Louisiana. Robert Apodaca, Harry Morgan Cooper, Jr., and James Arnold Madden, On Writ of Certiorari to ve | the Court of Appeals of Petitioners, 69-5046 sv. Oregon. Oregen. [May 22, 1972] Mr. Justice Douc.as, with whom Mk. Justice BREN- NAN and Mr. JUSTICE MARSHALL concur, dissenting. Appellant in the Louisiana case and petitioners in the Oregon case were convicted by juries that were less than unanimous. This procedure is authorized by both the Louisiana and Oregon Constitutions. Their claim, re- jected by the majority, is that this procedure is a violation of their federal constitutional rights. With due respect to the majority, I dissent from this radical departure from American traditions. I The Constitution does not mention unanimous juries. Neither does it mention the presumption of innocence nor does it say that guilt must be proven beyond a reasonable doubt in all criminal cases. Yet it is almost inconceivable that anyone would have questioned whether proof beyond a reasonable doubt was in fact the constitutional standard. And, indeed, when such 4 case finally arose we had little difficulty disposing of the issue. In re Winship, 397 U. 8. 358, 364. The Court, speaking through Mr. Justice Brennan, stated that the “use of the reasonable-doubt standard is indispens. . abie to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves yeople in doubt whether innocent men are being con- demned. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty. “Lest there remain any doubt about the consti- tutional stature of the reasoneble-doubt standard, we explicitly hold that the Due Process Clause pro- tects the accused against conviction except upon proof beyond a reasonable doubt of every fact neces- sary to corstitute the crime with which he is charged.” Jbid. I had similarly assumed that there was no dispute that the Federal Constitution required a unanimous j" > in all criminal cases. After all, it has long been explicit constitutional doctrine that the Seventh Amendment civil jury must be unanimous. See American Publishing Co. v. Fisher, 166 U. S. 464, where the Court said that “unanimity was one of the peculiar and essential fea- tures of trial by jury at the common law. No authorities are needed to sustain this proposition.” /d., at 468. Like proof beyond a reasonable doubt, the issue of unani- mous juries in criminal cases simply never arose. Yet in cases dealing with juries it had always been assumed that a unanimous jury was required.’ See Marvwell v. 2 JOHNSON v. LOUISIANA 1See also 2 J. Story, Commentaries on the Constitution 559 n. 2 (5th ed. 1891): “A trial by jury is generally understood to mean ée vi termini, a trial by a jury of twelve men, impartially selected, who a JOHNSON v. LOUISIANA 3 Dow, 176 U. S. 581, 586; Patton v. United States, 281 U. S. 276, 288; Andres v. United States, 333 U. S. 740, 748. Today the bases of those cases are discarded and two centuries of American history are shunted aside.” The result of today’s decision is anomalous: though unanimous jury decisions are not required in state trials, they are constitutionally required in federal prosecu- tions. How can that be possible when both decisicns stem from the Sixth Amendment? We held unanimously in 1948 that the Bill of Rights requires a unanimous jury verdict: “Unanimity in jury verdicts is required where the Sixth and Seventh Amendments apply. In criminal cases this requirement of unanimity extends to all issues—character or degree of the crime, guilt and must unanimously concur in the guilt of the accused before a legal conviction can be had. Any law, therefore, dispensing with any of these requisites, may be considered unconstitutional.” Last Term we held a jury of six was sufficient, Williams v. Florida, 399 U. ». 88, but we noted that neither evidence nor theory suggested 12 was more favorable to the accused than six. The same cannot be said for unanimity and impartial selection of jurors. See pp. 9-15. infra. Story’s Commentaries cite no statutory authority for the require- ment of unanimity in a criminal jury. That is because such author- ity has never been thought necessary. The unanimous jury has been so embedded in our legal history that no one would question its constitutional position and thus there was never any need to codify it. Indeed, no criminal case dealing with a unanimous jury has ever been decided by this Court before today, largely because of this unquestioned constitutional assumption. A similar assumption had, of course, been made with respect to the Seventh Amendment civil jury, but that issue did reach the Court. And the Court had no difficulty at all in holding a unanimous jury was a constitutional requirement. American Publishing Co. v. Fisher, 166 U.S. 464. | * Of course, the unanimous jury’s origin is long before the American | Revolution. The first recorded case where there is a requirement of | unanimity is Anonymous Case, 41 Lib. Assisarum 11 (1367), reprinted in English in R. Pound and T. F. Plunkett, Readings on the History and System of the Common Law 155-156 (1927). 4 JOHNSON v. LOUISIANA punishment—which are left to the jury. A verdict embodies in a single finding the conclusions by the jury upon all the questions submitted to it.” Andres v. United States, 333 U. S. 740, 748. After today’s decision, a man’s property may only be taken away by a unanimous jury vote, yet he can be stripped of his liberty by a iesser standard. How can that result be squared with the law of the land as ex- pressed in the settled and traditional requirements of procedural due process? Rule 31 (a) of the Federal Rules of Criminal Pro- cedure states, ‘““The verdict shall be unanimous.” That Rule was made by this Court with the concurrence of Congress pursuant to 18 U.S. C. § 3771. After today a unanimous verdict will be required in a federal prosecu- tion but not in the state prosecution. Yet the sources of the right in each case are the Sixth and Fourteenth Amendments. I fail to see how with reason we can maintain those inconsistent dual positions. There have, of coursc, been advocates of the view that the duties imposed on the States by reason of the Bill of Rights operating through the Fourteenth Amendment are a watered-down version of those guarantees. But we held to the contrary in Malloy v. Hogan, 378 U.S. 1, 10-11: “We have held that the guarantees of tie First Amendment, Gitlow v. New York, supra; Cantwell v. Connecticut, 310 U. S. 296; Louisiana ex rel. Gre- million v. NAACP, 366 U. S. 293, the prohibition of unreasonable searches and seizures of the Fourth Amendment, Ker v. California, 374 U.S. 23, and the right to counsel guaranteed by the Sixth Amend- meni, Gideon v. Wainwright, supra, are all to be enforced against the States under the Fourteenth Amendment according to the same standards that JOHNSON v. LOUISIANA 5 protect those personal rights against federal en-- croachment. In the coerced confession cases, in- volving the policies of the privilege itself, there has been no suggestion that a confession might be con- sidered coerced if used in a federal but not a state tribunal. The Court thus has rejected the notion that the Fourteenth Amendment applies to the States only a ‘watered-down, subjective version of the individual guarantees of the Bill of Rights.’ ” Malloy, of course, not only applied the Self-Incrim- ination Clause to the States but also stands for the prop- osition, as mentioned, that “the same standards must determine whether an accused’s silence in either a fed- eral or state proceeding is justified.” Jd., 11. See also Murphy v. Waterfront Comm’n, 378 U. S. 52, 79. The equation of federal and state standavds for the Self- Incrimination Clause was expressly reathirmed in Grif- fin v. California, 380 U. S. 609, 615; and in Miranda v. Arizona, 384 U. S. 436, 464. Similarly, when the Confrontation Clause was finally made obligatory on the States, Justice Black for the majority was careful to gbserve that its guarantee “like the right against compelled self-incrimination ‘is to be enforced against the States under the Fourteenth Amend- ment according to the same standards that protect those personal rights against federal encroachment.’” Pointer V. Texas, 380 U. S. 400,498. Cf. Dutton v. E vans, 400 U.S. 74, 81. Likewise, when we applied the Double Jeopardy Clause against the States Justice MARSHALL wrote for the Court that “Once it is decided that a particular Bill of Rights guarantee is ‘fundamental to the American scheme of justice,’ Duncan v. Louisiana... . the same constitutional standards apply against both the State and Federal Governments.” Benton vy. Maryland, 395 6 JOHNSON v. LOUISIANA U. S. 784, 795. And, the doctrine of coextensive cover- age was foilowed in holding the Speedy Trial Clause applicable to the States. Klopfer v. North Carolina, 386 U. 8. 218, 222. And, in Duncan v. Louisiana, 391 U.S. 145, 158 n. 30, in holding the jury trial guarantee binding in state trials, we noted that its prohibitions were to be identical against both the Federal and State Governments. See also 391 U. S., at 213 (concurring opinion). Only once has this Court diverged from the doctrine of coextensive coverage of guarantees brought within; the Fourteenth Amendment, and that aberration was later rectified. In Wolf v. Colorado, 338 U.S. 25, it was held that the Fourth Amendment ban against unreasonable and warrantless searches was enforceable against the States but the Court declined to incorporate the Fourth Amendment exclusionary rule of Wee:xs v. United States, 232 U.S. 383. Happily, however, that gap was partially closed in Elkins v. United States, 364 U.S. 206, and then completely bridged in Mapp v. Ohio, 367 U. S. 648. In Mapp we observed that “This Court has not hesitated to enforce as strictly against the State as jt does against the Federal Government the rights of free speech and of a free press, the rights to notice and to a fair, public trial... .’ We concluded that “the same rule’’ should apply where the Fourth Amendment was concerned. And, later, we made clear that “the standard for obtain- ing a search warrant is... ‘the same under the Fourth and Fourteenth Amendments,” Aguilar v. Texas, 378 U. S. 108, 110; and that the “standard of reasonableness is the same under the Fourth and Fourteenth Amend- ments.” Ker v. California, 374 U. S. 23, 33. It is said, however, that the Sixth Amendment, as applied to the States by reason of the Fourteenth, does net mean what it does in federal proceedings, that it has a “due process” gloss on it, and that that gloss gives a JOHNSON v. LOUISIANA 7 the States power to experiment with the explicit or implied guarantees in the Bill of Rights. Mr. Justice Holmes in Truaz v. Corrigan, 257 U. S. 312, 344, and Mr. Justice Brandeis in New State Ice v. Liebmann, 285 U. S. 262, 311, thought that the States should be allowed to improvise remedies for social and economic ills. But in that area there are not many “thou shalt nots” in the Constitution and Bill of Rights ‘concerning property rights. The most conspicuous is the Just Compensati# Ciause of the Fifth Amendment. It has been held applicable in full vigor to the States by reason of the Fourteenth Amendment. Ciicago, B&Q R. Co. v. Chicago, 166 U. S. 226. Does today’s decision mean that States may apply a “watered down” version of the Just Compensation Clause? Or is today’s decision limited to a paring down of civil rights protected by the Bill of Rights and up until now as fully applicable to the States as to the Federal Government? These civil rights—whether they concern speech, searches and seizures, self-inerimination, criminal prose- cutions, bail, or cruel and unusual punishments extend of course to everyone, but in cold reality touch mostly the lower castes in our society. I refer of course to the Blacks, the Chicanos, the one-mule farmers, the agri- cultural workers, the off-beat: students, the victims o£ the ghetto. Are we giving the States the pover to experiment in diluting their civil rights? It has long been thought that the Thou Shalt Nots in the Constitu- tion and Bill of Rights protect everyone against govern- mental intrsion or overreaching. The idea has been obnoxious that there are some who can be relegated to second-class citizenship. But. if we construe the Bill of Rights and the Fourteenth Amendment to permit States to “experiment” with the basic rights of people, we open a veritable Pandora’s box. For hate and prejudice are - &3 8 JOHNSON v. LOUISIANA versatile forces that can degrade the constitutional scheme.* That, however, is only one of my concerns when we make the Bill of Rights, as applied to the States, a “watered down” version of what that charter guarantees. My chief concern is one often expressed by the late Jus- tice Black who was alarmed at the rospect of aine men appointed for life sitting as a super-legislative body to determine whether government has gone too far. The balancing was done when the Constitution and Bill of Rights were written and adopted. For this Court to determine, say, whether one person but not another is entitled to free speech is a power never granted it. But that is the ultimate reach of a decision that lets the States, subject to our veto, to experiment with rights guaranteed by the Bill of Rights. I would construe the Sixth Amendment, when appli- cable to the States, precisely as I would when applied to the Federal Government. II The plurality approves 4 procedure which diminishes the reliability of jury. First, it eliminates the circum- stances in which a minority of jurors (a) could have 3 What was said of Mapp’s impact on federalism bears repeating here: “Mapp .. . established no assumption by this Court of supervisory authority over state courts ... and, consecuently, it implied ro total obliteration of state laws relating to arrests and searches in favor of federal law. Mapp sounded no death knell for our federal- ism; rather, it echoed the seatiment of Elkins v. United States [, supra,] that ‘a healthy federalism depends upon the avoidance of needless conflict between state and federal courts’ by itself urging that ‘[f]ederal-state cooperation . . . will be promoted, if only by recognition of their now mutual obligation to respect the same fundamental criteria in their approaches.” Ker v. California, 374 U. S. 23, 31. JOHNSON v. LOUISIANA 9 rationally persuaded the entire jury to acquit, or (b) while unable to persuade the majority to acquit, nonetheless could have convinced them to convict only on a lesser-included offense. Second, it permits prose- cutors in Oregon and Louisiana to enjoy a conviction- acquittal ratio substantially greater than that ordinarily returred by unanimous juries. The dimunition of verdict reliability flows from the iact that nonunanimous juries need not debate and deliberate as fully as must unanimous juries. As soon as the requ’site majority is attained, further consider- ation is not required either by Oregon or by Louisiana even though the dissident jurors might, if given the chance, be able to convince the majority. Such persua- sion does in fact occasionally occur in States where the unanimous requirement applies: “In roughly one case in ten, the minority eventually succeeds in revers- ing an initial majority. and these may be cases of special importance.” * One explanation for this phenomenon is that because jurors are often not permitted to take notes and because they have imperfect. memories, the forensic process of forcing jurors to defend their conflict- ing recollections and conclusions flushes out many nuances which otherwise