*1 v. FLORIDA WILLIAMS 22, 1970 June 1970 Decided Argued March 927. No. *2 Richard Kanner filed briefs for the cause and argued petitioner.
Jesse McCrary, Jr., Attorney J. General of Assistant him Florida, argued respondent. the cause for With on Faircloth, Attorney the brief were Earl General, Sabo, Ronald W. Attorney Assistant General. Greenberg
Jack and Michael Meltsner filed for a brief Virgil Jenkins as amicus curiae urging reversal. opinion delivered the of the Court.
Mr. Justice White Prior Florida, to his trial for robbery the State petitioner filed a “Motion for a seek- Order,” Protective ing to be excused from the requirements of Rule 1.200 of the Florida Rules of Criminal Procedure. That rule a on requires defendant, prosecut- written demand of the ing attorney, notice in if the give advance alibi, defendant intends to claim an and to furnish the prosecuting attorney place with information as to the where he claims to have been and with the names and he In addresses the alibi witnesses intends to use.1 his petitioner openly motion declared his intent to claim an objected alibi, requirements but to the further disclosure “compels on the that the rule ground Defendant criminal case himself” in against witness viola- tion of his Fifth and Fourteenth Amendment rights.2 The motion was denied. Petitioner pretrial also filed a impanel motion to a 12-man instead of the six- appendix The full text of the -rule is set out in infra, Subsequent opinion, appendix at 104. an references to are separately appendix bound filed with the briefs in this case “App.”]. [hereinafter 2 App. 5. capital Florida law in all but jury provided by
man Petitioner was cases.3 That motion too was denied. imprison- life charged convicted as and was sentenced to Appeal affirmed, rejecting ment.4 District Court Amendment petitioner’s claims his Fifth and Sixth rights had been We certiorari.5 granted violated. U. S. 955
I require- rule is in essence a Florida’s notice-of-alibi a limited form of ment that a defendant submit discovery by he intends to pretrial whenever State rely exchange at trial on the defense of alibi. proposes disclosure of the witnesses he defendant’s to use to in turn is defense, establish that the State *3 required notify to the defendant of witnesses it any proposes to offer in rebuttal defense. Both sides are under continuing duty promptly to disclose the names and addresses of additional on bearing witnesses they the alibi as become The available. threatened sanction for failure comply is the exclusion at of the alibi except defendant’s for his own evidence — testimony or, in the case of the State, the exclusion of — evidence offered State’s in rebuttal of the alibi.6 case, following this the denial of his Motion for Order, petitioner complied a Protective with the alibi 3 (1) (1967): Fla. Stat. §913.10 try “Twelve men shall capital cases, constitute a all try six men shall constitute a all other criminal cases.” 4 App. See 82. Supreme Court of Florida had earlier held that it was jurisdiction petitioner’s without to entertain appeal direct from the id., law, trial court. See at 92. Under Florida the District Court Appeal highest became the court from which a decision could Const., V, (2); be had. Fla. Art. App. (5) Fla. (a); Rule 2.1a § Thurston, Ansin v. 2d So. good may “For cause shown” the court requirements waive the of the rule. Fla. Proc. Rule Crim. 1.200.
rule and and address one gave the State the name to the office Mary Scotty. Scotty Mrs. was summoned of the where Attorney morning trial, State on the testimony. itself, she At the trial Mrs. gave pretrial wife all Scotty, petitioner, petitioner’s testified apartment the three of them Scotty’s had been in Mrs. during the time of the dur- robbery. On two occasions ing Scotty, prosecuting cross-examination Mrs. attorney deposition confronted her with her earlier which in some given she had dates and times that respects did not times correspond with the dates and given story, trial. Mrs. to her trial Scotty adhered insisting that she had in her earlier been mistaken testimony.7 The also the testi- State offered rebuttal mony robbery one of the investigating officers who claimed Scotty that Mrs. had asked him for direc- tions on the afternoon in question during the time when she claimed apartment peti- to have been in her with tioner and his wife.8
We need
linger
over the
the dis-
suggestion
covery permitted the
against petitioner
State
deprived
process”
case
him of
“fair
“due
or a
trial.”
provides
Florida law
discovery by
for liberal
the de-
against
State,9
fendant
and the notice-of-alibi
rule
carefully
is itself
hedged
reciprocal duties requiring
state
disclosure
defendant. Given the ease with
an
which
alibi can be
fabricated,
State’s interest
*4
protecting
against
itself
an eleventh-hour defense is
legitimate.
both obvious and
Reflecting
interest,
provisions,
notice-of-alibi
at
dating
least from 1927,10
9 discovery See Fla. Rule Crim. Proc. 1.220. provisions These by petitioner were invoked in the instant App. 3, 4, case. See 8. 10 Epstein, Alibi, See Advance Notice of 55 J. Crim. L. C. & P. S. 29, (1964). 32 number of in a substantial States.11
are now existence hardly in itself; an end adversary system of trial is players an game enjoy in which yet poker is not their until always to cards absolute conceal at least played.12 ample system, We find room in that concerned, far for the instant process” as “due is enhance the search for rule, designed Florida which to both the defendant truth in the criminal trial insuring ample opportunity investigate and the certain State to guilt facts crucial the determination of or innocence. to major that he was Petitioner’s contention is “com- pelled contrary ... to be a witness himself” against commands of Fifth and Fourteenth Amendments required because the notice-of-alibi rule him give Scotty State the name of Mrs. address ad- vance of trial and thus to furnish State with in- pretrial formation useful No convicting him. state- petitioner ment of was at trial; introduced but armed Scotty’s with Mrs. name and address the knowledge Florida, addition appear least 15 States to have alibi- requirements notice of one sort or another. See Ariz. Rule Crim. (1956); Proc. 192 B Ind. Ann. Stat. (1956); 9-1633 §§9-1631 (1966); Iowa Code Kan. Stat. Ann. (1964); §777.18 §62-1341 Comp. 768.20, (1948); Mich. Laws 768.21 Minn. Stat. §§ 630.14 § (1967); (1958); N. 3:5-9 J. Rule N. Y. Code Crim. Proc. §295-1 (1958); (1954); Ohio Rev. Code Ann. Stat., 22, 2945.58 Okla. § Tit. (1969); (1970); Pa. Crim. Rule Proc. 312 Comp. § S. D. Laws 23-37-5, (1967); 23-37-6 Utah Code Ann. (1953); §§ 77-22-17 § Ann., Vt. Stat. (1959); Tit. Wis. Stat. §§ 955.07 § generally 6 Wigmore, J. Evidence (3d ed. § 1940). not, course, doWe decide that each these pro- alibi-notice visions necessarily valid in all respects; that conclusion must specific await a inquiry, context and an example, for into whether enjoys reciprocal defendant discovery against the State. 12See, g., Brennan,, e. The Criminal Sporting Prosecution: Event Quest Truth?, Q. 279, Wash. U. L. 292.
83
witness,
to
petitioner’s
that
was
alibi
State
she
her
in advance
deposition
was able to take
to
him
testimony. Also, requiring
find rebuttal
to
have
is claimed to
reveal
elements of his defense
wait until after the
interfered
his
to
State
presented
had
against
its case to
how to defend
decide
every
it.
conclude, however,
apparently
We
as has
other
issue,13
court
that
has considered the
by a
privilege against self-incrimination
not violated
requirement
alibi
give
the defendant
notice of an
defense and disclose his alibi witnesses.14
n The defendant
trial is frequently
a criminal
forced
testify
to
himself and to call other
an effort
witnesses
presents
reduce the risk of conviction. When he
his
witnesses, he must
them
identity
reveal their
and submit
which in
may prove
cross-examination
itself
incrim-
inating
may
which
furnish
State with leads to
13
g.,
Stump,
E.
State
v.
1181,
254
210,
Iowa
119 N.
2dW.
cert.
Baldwin,
denied,
(1963);
State
U.
853
v.
379,
375
S.
47 N. J.
221 A.
People
Rakiec,
199,
denied,
2d
cert.
(1966);
incriminating rebuttal com- between a choice demanding a dilemma faces such been never has a defense and presenting silence plete compelled against privilege of the invasion an thought the generated pressures self-incrimination. not vitiate do they but may be severe evidence State's and defense an alibi present to choice the defendant’s de- attempted though even prove it, to witnesses However for the defendant. catastrophe in ends fense alibi defense “incriminating” or “testimonial” within “compelled” be considered be, it cannot proves to Amendments. Fifth and Fourteenth meaning on the defend- operate constraints Very similar alibi notice of pretrial requires ant when State such Nothing witnesses. naming of alibi pre- an or rely to on alibi the defendant requires rule these matters defense; abandoning him from vents must choice.15 That choice are left to his unfettered contrary simply suggestion to the not apparent Petitioner’s requirement mere by the of this case. The out facts borne rely in advance his intent to on an alibi no petitioner disclose point suggestion way defense as of that time. The “fixed” his opening State, by referring petitioner’s proposed alibi in to that the through might “compelled” have him to follow closing statements an unfavorable inference is a the defense in order to avoid totally support The first ref hypothetical without this record. petitioner’s attorney in came from own his erence to the alibi remarks; response did come opening the State’s until after the Scotty. had finished direct examination of Mrs. Petitioner defense possible appears raise this issue as a defect in alibi-notice re quirements general, seriously suggesting without that his choice at trial in this case would have been different of defense but for compliance Indeed, in prior with the rule. his Motion for a his Order, petitioner freely rely disclosed his intent Protective on alibi; only objection requirement his was to the an further that he the nature the alibi and the disclose name of the witness. On facts, then, simply question are not these we confronted with the made, the pressures but that bear on his pretrial decision are of the same nature as that would those induce him to call alibi witnesses force trial: of historical beyond fact both his control State’s and the strength the State’s case built on these facts. Response to pressure by that kind of offering evidence or testimony compelled is not self-incrimination trans- the Fifth gressing and Fourteenth Amendments.. us, the case before rule notice-of-alibi itself way
in no affected petitioner’s crucial decision call alibi witnesses or *7 legitimate pressures added the lead- ing to that course of action. most, only At the rule compelled petitioner to accelerate the of his timing dis- closure, him forcing divulge to at an earlier date infor- petitioner mation that the from the beginning planned to at trial. divulge the Fifth Nothing Amendment a privilege entitles defendant as a matter of constitu- tional right to await the end of the State’s case before announcing the nature of defense, any his more than it him jury’s entitles to await verdict on the State’s case-in-chief before deciding whether or not to take the stand himself.
Petitioner concedes that absent the notice-of-alibi rule the Constitution would raise no bar to the court’s a granting State continuance at trial on the ground surprise as soon as the alibi witness is called.16 Nor a defendant compelled whether can be in advance of trial to select a longer defense from which he can no deviate. We do suggest, though, procedure not mean that such a must neces- sarily problems. raise serious constitutional See State ex rel. Simos Burke, 137, 129, v. 2d Wis. N. 2d (1968) (“[i]f W. discussing we are right of a defendant to defer until moment testifying of his the election between alternative alibis, inconsistent we have left concept of the trial as a search behind”). for truth far Reply Brief for Petitioner 2 and 1.n. if, during problems be self-incrimination
would there precisely to do permitted continuance, was State deposition here to trial: take prior what did if utilizing But so rebuttal evidence. and find the witness Fifth and Four- permissible under the a continuance may surely result be then the same Amendments, teenth here, as it was pretrial discovery, accomplished through necessity disrupted trial.17 We decline avoiding the compulsory self-incrim- privilege against to hold that surprise guarantees right the defendant ination alibi defense. with an State
II
Louisiana,
we held
(1968),
In Duncan v.
We had occasion to briefly history development oft-told of the review 17 might argued pro It also be the “testimonial” disclosures only relating Fifth Amendment include tected statements solely crime, relating of the historical facts not statements proposes what a to do at trial. defendant
87 history That revealed by jury of trial in criminal cases.18 importance to the con- attaching great a tradition long body peers of cept relying on a one’s determine arbitrary guilt safeguard against or innocence as a law however, little history, enforcement. That same affords insight into the considerations that led the gradually body generally size fixed 12.19 Some upon simply have that the number fixed suggested 12 was presentment jury because that was number of the from hundred, petit jury developed.20 from the which the Louisiana, (1968). 145, See Duncan v. 391 U. S. 151-154 tracing development In of the from the time when the jury performed different, “inquisitory” function, Thayer R. James following: notes the inquisition early
“In times the had no fixed number. empire 66, 41, 20, 11, 8, 53, 17, 13, 15, Frankish we are told of and variety great among of other numbers. So also the Normans it much, place prevailing varied and ‘twelve has not even the grundzahl;’ 6, 12, 4, 5„ the documents all show sorts numbers — 13-18, 21, 27, 30, recogni- It so on. seems to have been the Henry number; tions under II. that established twelve as the usual Jury even then Develop- the number was not The uniform.” Its ment, omitted). (1892) (citations L. Harv. Rev. 295 Thayer, J. Preliminary A Treatise on Evidence at the Common (1898). Law
Similarly, Professor Scott writes: beginning century
“At the of the indeed thirteenth twelve was usual but not the invariable number. But the middle of the century requirement probably fourteenth had become twelve definitely finally regarded fixed. Indeed this number came to be something Scott, superstitious like A. Funda- reverence.” (footnotes (1922) mentals of Procedure Actions at Law 75-76 omitted). Holdsworth, History English (1927); W. A Law 325
Wells, Q. Origin Petty Jury, 27 L. Rev. development
The latter petit author traces the of the 12-man through following stages. develop four stage The first saw the *9 presentment jury, up generally persons ment the made hundred, from the simply charge whose function was the ac- for the more fanciful reasons less circular but Other, they brought “but all were given, number have been fixed,”21 was and rest on little the number forward after into the mystical superstitious insights or more than Lord Coke’s explanation of “12.” significance writ, respected holy as 12 “number twelve is much tribes, etc.,”22 stones, In typical.23 apostles, 12 by crime; guilt or a of his innocence was some cused with the test by ordeal, wager means, battle, of law. In such as or other jury stage, began presentment to be asked its the second accused, guilt person of the it had verdict on the or innocence petit jury. began grand as both a and hence to function and a juries” stage, render were formed to the third “combination beyond representation in order to broaden the base verdict juries hundred, county. borough, local to include the These by presentment juries from adding were formed one or more one hundreds, coroners or or more well as certain officials such as twenty-four knights. juries from “These combination numbered eighty-four jurors, embarrassingly large number became unwieldy, personal juror responsibility and the of the of each sense Id., danger being step was in at 356. fourth lost.” The obvious jury selecting special was the creation of “formed one or more jurors presentment juries each of hun- from several of the dreds, probably until the twelve is reached . . number . because that jury presentment was the number of from the hundred. There- fore, just presentment jury represented as the hun- the voice making jury accusation, country’, dred in so the of ‘the number, represented county deciding same the whole whether the Id., guilty accused was or not.” at 357. guess why present- Neither of these authors hazards as to jury ment itself numbered 12. 21Id., 357. Coke, (1st
22 1 England E. Institutes of the Laws of *155a Amer. 1812). ed. Thus John on Proffatt his treatise trials notes that the why petit “quaintly reasons the number of the are Pais, given” per in Duncombe’s Trials as follows: number is no less esteemed our own law than “[T]his holy apostles If the on writ. twelve their thrones twelve must
89 century in 14th the of the while sometime the size short, generally 12,24 came to be fixed jury at common law system appears to feature of the particular been accident, great have a historical unrelated try state, good appoint to us our eternal reason hath the law try temporal. the number us in our The tribes of Israel twelve to twelve, twelve, patriarchs officers were the were and Solomon’s Jury Duncombe, (1877), quoting were Trial 112 4 twelve.” n. G. (8th per 1766). 1 Trials Pais 92-93 ed.
Attempts have also been made the number 12 to trace to early origins Continent, European particularly the on Scandinavia. Busch, Jury (1959). See 1 F. Law and Tactics in Trials See §24 generally Forsyth, History by Jury (1852); Repp, W. Trial 4 of T. (1832). Jury practice, Trial But even to continental no Proffatt, better are reasons discovered for the 12. number Thus discussing the ancient tribunals, Scandinavian comments: only throughout “Twelve was Europe, common number but every was the favorite polity juris- number branch of the and prudence of the Gothic nations. singular unanimity
“The in the selection of the number twelve compose judicial bodies, certain remarkable fact many history Many sought nations. have to account for this general custom, and have religious grounds. some on based it kings One Wales, of the Morgan ancient of Gla-Morgan, to adoption whom is accredited by jury in A. D. 'Apostolic ‘For,’ calls it the he, Law.’ said ‘as Christ his twelve apostles finally judge world, were so human tribunals should ” composed king Proffatt, twelve wise men.’ Trial Jury (1877) (citations omitted). n. Pike, History
See also 1 L. A in England (1873). of Crime interesting this connection following oath, to note the re- quired early jury: 12-man this, ye “Hear Justices! that I speak will the truth of that which ye part king, shall ask of me on the faithfully I and will do my help the best of God, holy endeavour. So me and these Apostles.” Forsyth, by Jury W. Trial Proffatt, supra, See at 42. supra, n. 19. place.26 first rise to which gave
purposes feature this accidental is whether before us question into immutably our codified been jury has Constitution. an affirm- have assumed earlier decisions Court’s
This con- case so The leading question. ative answer *11 Utah, Thompson v. Amendment struing the Sixth been had defendant There the (1898). 170 343 U. S. com- for a crime jury a 12-man by and convicted tried trial was A new of Utah. Territory mitted in the admitted as had been time Utah by but that granted, under proceeded new trial a The defendant’s State. only eight a jury Constitution, providing Utah’s conviction, resulting This Court reversed the members. provision was an ex Utah’s constitutional holding that reaching the defendant. applied law post as facto that the Sixth conclusion, the Court announced its when to the defendant’s trial applicable Amendment was to in and that the referred Territory, was a Utah it was at jury “constituted, Amendment a the was persons, of twelve neither more nor less.” law, common unnecessary result,26 for the S., Arguably 170 at U. 349. 26 Heller, Devlin, by Jury (1956); 8 F. The Sixth Amend P. Trial (1951); Willoughby, Principles W. of Judicial Administra ment 64 Tamm, (1929); Jury: Proposed The Five-Man Civil A 503 tion Amendment, 120, (1962); 51 Geo. L. J. 128-130 Constitutional (1968); Wiehl, Jury, Gonzaga 35, 4 The Six Man L. Rev. 38-39 supra, 19, 89-90; White, Thayer, Origin Development n. at see 15-16, by Jury, Tenn. L. Rev. 17 of Trial 29 26 crime and at the At the time of the the first trial statutes of Territory wholly apart from the Sixth Amendment— of Utah — jury. Thompson S., 12-man ensured a U. at 345. The easy post question resolve, ex once it Court found was facto subsequent provision deprived that constitutional assumed Utah’s Thompson right previously guaranteed him of a the United Constitution; possibility might the same result States referring announcement was supported simply by Carta,27 from Magna quoting passages and seen— already treatises which noted —what been has common law did indeed consist 12. Noticeably any absent was of the essential discussion step namely, every feature argument: jury as it existed at common incidental or law—whether necessarily to that essential institution —was included wherever that referred Constitution document “jury.” decisions have reaffirmed Subsequent solely rights formerly been reached on basis have accorded Thompson at, under the territorial statute was hinted but was not explicitly considered. Magna judgment Whether or not the to a Carta’s reference “jury” peers one's was a reference fact that historians —a g., dispute, see, Maitland, History e. & now F. Pollock F. I, English p. (2d Law Before the Time of Edward 173 n. 3 ed. 1909); Corcoran, Petty Frankfurter & Federal Offenses Guaranty by Jury, Constitutional Trial L. Harv. Rev. *12 (1926) (criticizing Thompson 922 n. 14 v. Utah’s reliance on the “long document after had exposed error”)— scholars this ancient it seems the authority fixing clear that Great Charter is not for the jury McKechnie, number of the at 12. Magna See W. Carta 134- 138, (1958); Scott, by Jury 375-382 Trial and the Reform of Civil Procedure, 669, (1918). 31 Harv. L. 672 Rev. indicates, question
theAs text the is not whether the 12-man jury 1789, is or particular traced to 1215 to but whether that accepted qua jury guaran- feature must be as a sine non of the trial by Heller, supra, 25, teed the Constitution. See n. at 64. 28 Thompson opinion jury also reasoned that if a can be 12 eight, reduced from nothing prevent then there was its similarly being or zero, reduced to four two or dispensing even thus jury altogether. the S., 170 U. See at 353. That bit of today “logic,” resurrected Mr. concurring Justice Harlan’s opinion, post, 126, at suffers recognizes somewhat as soon as one that get slope” he can off “slippery the before he reaches the bottom. have no We occasion in this case to determine what minimum number “jury,” can still constitute a but we do not doubt that six above that minimum.
92 in dictum29 and often Thompson,
announcement any discussion of was there usually by relying —where common- the on the fact solely the issue at all— Patton v. United See 12.30 jury consisted law 31 v. Rassmussen (1930); States, 276, 288 281 U. S. v. Maxwell States, 516, (1905); 519 197 U. S. United (1900). Dow, 581, U. S. an elusive Framers” is often intent of the
While “the
history casts consider-
the relevant constitutional
quarry,
assumption
past
in our
decisions
easy
doubt on
able
at
law
jury
common
feature existed
a
given
if
preserved in the Con-
necessarily
was
then
common-law
Amendment refers
ruling that
the Sixth
A
States,
holding in Rassmussen v. United
jury was
essential
(1905),
held invalid a conviction
where the Court
93 jury placed for were first stitution. Provisions trial provision the Constitution in Article Ill’s that “[t]he by Jury; of all Crimes . . be and such Trial . shall Crimes Trial shall be held where the said State 32 his- “very scanty been The shall have committed.” provision] of the tory in the records Con- [of 33 light way Convention” little either stitutional sheds “jury” between Article Ill’s on the intended correlation Indeed, jury the features of the at common law.34 adoption Constitution, of the fears pending after provision expressed pre- Article failed to were Ill’s right “jury serve the common-law tried 35 the vicinage.” concern, That as well as the concern 32 Const., III, 2, U. S. Art. cl. 3. § 33 Corcoran, supra, 27, Frankfurter & n. at 969. 34 only given jury provisions The such attention involved questions cases, as whether the should also be extended to civil Amendment, Henderson, Background see the Seventh 80 289, (1966), wording Harv. 292-294 L. Rev. whether should offenses,” embrace the “trial of all crimes” or the “trial all criminal Corcoran, swpra, 27, 969, provide see Frankfurter & n. at and how to any State, id., for the trial of crimes committed in at 969 n. 244. Farrand, 2 144, 173, See M. Records of the Federal Convention 187, 433, 438, 676, 601, (1911). id., 587-588, See also 4 at (1937) (indexing Ill, §2, all references Art. cl. in Farrand’s records). 35 Heller, supra, 25, 31-33, 93; Warren, Light See n. New on the History Judiciary of the Federal Act of L. Harv. Rev. (1923). Technically, “vicinage” neighborhood, means and “vicin- age jury” jury neighborhood or, meant of the in medieval England, county. Blackstone, 4See W. Commentaries provided venue, *350-351. While Article III impose it did not explicit juror-residence requirement concept associated Maryland “vicinage.” Brown, Supp. 63, 295 F. Virginia Convention, In the Madison conceded that the omission was deliberate and defended it as follows: objected “It yesterday, was provision there no was for a vicinage. from the If it could have safety, been done with it would *14 94 as criminal in civil as well jury to right the preserve
to introducing of for impetus part cases, furnished ultimately re- to the Constitution amendments and of the Sixth provisions jury in the sulted Madison introduced James As Amendments. Seventh in jury trial relating to the Amendment House, that: provided have would criminal cases impar- be an . . . shall all crimes “The trial of of the vicinage, of freeholders jury tial of the conviction, right for requisite unanimity of . other accustomed .. challenge, requisites and substantially in the House passed The Amendment after more than a week debate form, but considerably House altered.37 returned to the it Senate of the actual debates that occurred records While opposed. might happen It a trial would have been so county. Suppose in a whole impracticable in a rebellion be jury? district, impossible get to a The trial would it not be England as in America. There are de- is held sacred yet England: greater happened have viations it deviations independence, place our than have taken here since we established long time, though legislative a there for it be left to the discretion. any departed It is misfortune case that this trial should yet necessary. from, in some cases it is It must be therefore left legislature modify according discretion of the to circum- satisfactory complete Far- stances. This is answer.” M. rand, (1911). of the Federal Convention Records Cong.
36 1Annals of every Journal in the House Senate indicates clause proposed except version Amendment was deleted clause relating 4, 1789, grand Journal, Sept. indictment. Senate Sess., subsequent Cong., A 1st 1st 71. motion restore words providing “by impartial jury vicinage, for trial an with the requisite unanimity conviction, challenge, requisites” Journal, of adoption. other accustomed failed Senate 9, 1789, Cong., Sess., 1st Sept. 1st 77. from Madison to available,38 are not a letter Senate indicates September Pendleton on
Edmund *15 major objections of the was that one Senate’s in A con- the House version.39 requirement “vicinage” in a appointed. reported As was ference committee 1789, the September 23, on letter Madison second opposed vicinage requirement, to the Senate remained in partly then-pending judiciary its view the because time Amend- was at the same as the bill—which debated preserved vicinage adequately common-law ments — making unnecessary requirement to freeze that feature, into “The wrote Madison: Senate,” the Constitution. a definition of the opposing
“are . . . inflexible locality they The contend is vicinage Juries. if term; vague too too too vague either strict a depending pleasure on limits to be fixed law, county. too if It strict limited to the was after the proposed Juries, insert word 'with requisites,’ to be leaving accustomed the definition professional construed according judgment principal The source the proceedings of information on of the Maclay Congress Senate in the First the Journal Senator Pennsylvania, unfortunately during who was ill debate Senate Maclay on the amendments. See Journal of 144-151 William Heller, (1927); supra, 25, n. at 31-32. 39Madison writes: plan “The have sent Senate back the of amendments with some alterations, strike, my which opinion, salutary the most many States, juries, cases, articles. of the even criminal are large; from in others, taken the State at from of consider- districts extent; very County able few from the alone. Hence a dislike respect vicinage, the restraint with produced which has negative that . on clause. . . Several have others had similar Pendleton, fate.” from Sept. Letter James Madison to Edmund Writings Letters and Other of James Madison 491 The . . . not be obtained. this could men. Even provision vicinage also, suppose, Senate sufficiently the fears quiet Judiciary bill will point.”40 on this an amendment called for which the Committee finally from emerged version Amend- ultimately became Sixth was the version an accused: ment, ensuring public trial, by an speedy to a
“the and district wherein impartial State committed, which district have been crime shall previously been ascertained law . . . .” shall have out provisions spelling such common-law Gone were “unanimity,” or “the accustomed features of the *16 “vicinage” requirement And the itself had requisites.” by replaced wording compromise been that reflected a term, broad and narrow definitions of that and between power left to determine the actual Congress that by judicial its “vicinage” size of the creation of districts.41 may Three features be observed in this significant jury of the of the background sketch Constitution’s trial First, provisions. though vicinage requirement even jury was much a feature of the common-law as was requirement,42 the 12-man mere reference to “trial by in Article III jury” interpreted was not to include Indeed, that as the subsequent feature. debates over indicate, the Amendments disagreement arose over whether feature should be included in at all its sense, common-law resulting compromise described Second, provisions above. that would explicitly have 40 Letter Pendleton, from James Madison to Sept. 23, Edmund id., generally Heller, supra, 1789, at 492-493. 25, See 28-34; n. at Warren, supra, 35, n. at 118-132. Heller, supra, n. at 93. supra, 42 Proffatt, 119; Curtis, n. History G. Origin, Formation, Adoption of the Constitution of the United States 23 requisites” concept
tied to the “accustomed “jury” concededly were action is the time eliminated. Such open explanation requisites” that the “accustomed already concept were to be included thought “jury.” plausible But that no more explanation contrary deletion had than the one: that some sub- given the Indeed, expectation stantive effect. clear change substantive would be effected the inclusion explicit deletion of an “vicinage” requirement, latter explanation is, if the more anything, plausible. Finally, contemporary legislative pro- constitutional visions that where Congress indicate wanted to leave no doubt it incorporating was common-law existing features of the system, express how to knew use language Thus, Judiciary to that bill, effect. signed on day the President the same the House and finally the form of agreed Senate on the Amendments to be provided submitted to the States, in certain cases requirements for the “vicinage” narrower that the House had wanted to include the Amendments.43 And the Amendment, providing Seventh civil cases, explicitly added that “no fact tried a jury, shall any be otherwise re-examined Court of the United than States, according to rules of the common law.” provided The Act in. 29:§ *17 punishable in death, “That cases the in trial shall be had county the committed, where the was offence or where that cannot great inconvenience, jurors be done petit without twelve at least shall be Sept. 24, 1789, 29, summoned from thence.” Act of 1 Stat. § 88. 44Similarly, the First Congress Continental resolved in October 1774: respective “That the colonies are entitled to common the law of
England, and especially great more to the privilege and inestimable being by of peers tried their vicinage, according of the to the course that 1 law.” Journals of the Congress Continental 69 of (C. 1904) added). (emphasis Ford ed. And the Ordi- Northwest precisely to divine to be able pretend
doWe not Framers, the the imported “jury” what the word may well in 1789. It or the Congress, States First would jury expectation was that the usual that likely con- hence, the most of and that 12,45 consist Territory should the inhabitants of of declared nanee corpus, of habeas and the benefits of the writs ‘‘always be entitled to according judicial proceedings by jury . . . and of trial of the 1787, II, law.” of Art. the common Ordinance the course Capital Co. added). Traction (emphasis See C. xxxviii U. S. (1899) (concluding these Hof, 1, from sources 5-8 U. S. law” in the explicit to the “common Seventh reference Amendment, England, to the rules the common law referred practice). the rules as modified local state however, investigating reception of scholar, One early colonies, English law American notes that common process: simple legal theory “was not so as the would lead us to assume. general legal conceptions by, and their were conditioned While early terminology from, law, their derived the common colonists applying system,, they ignored were far from as a technical often subsidiary force, they consciously departed it or denied its many Reinsch, principles.” English from of most its essential Early Colonies, Essays Common American in 1 Law the Select History Anglo-American Legal 367, respect in particular, With most while of the adopted English early colonies an institution its form at date, appears accepted more than one to have at the institution stages only id., various with “various modifications.” at 412. See majority permitted Thus Connecticut decision case continued id., agree, 386, Virginia expressed regret failure to being at at requirement “vicinage” unable to English jury, retain the id., 405, Pennsylvania permitted majority at employed verdicts juries seven, id., 398, of six or and the Carolinas discontinued unanimity requirement, Thorpe, 5 F. Federal and State Con- (1909) (Art. 69, stitutions 2781 “Fundamental Constitutions of Carolina”). Heller, supra, also 25, n. at 13-21. adopted The States that had Constitutions the time
Philadelphia appear Convention in 1787 part for the most to have explicitly provided either Const, 12, that the would consist of see Va. in 7 Thorpe, F. Federal and State § Constitutions
99 thought was drawn that little simply elusion to be question today. specific we face actually given intent indication “the absolutely But there no Framers” of an decision to explicit equate of the characteristics constitutional and common-law dowe jury. Nothing suggests, in this that history then, turning to by violence to the letter of the Constitution other to determine purely than historical considerations as it at com- jury system, which features existed preserved mon The rele- law, were the Constitution. it, vant as we see must be the function that inquiry, particular performs feature its relation subsequently interpreted pro- (1909), to have trial their requirement. In at involv- visions to include that least one instance by subsequent ing eight jurors, a decision conviction South Carolina by interpreting provision “jury,” for to declare trial refused requirement institution, the 12-man an essential feature by Starling, change legislature. immune from See State v. (S. 1867). 120, Rich. C. was Ct. Errors The conviction question, deciding affirmed since without the State had adopted specifically empowering time legislature a Constitution jurors determine the number of in certain inferior courts. South today apparently States, including Carolina remains one of five Florida, juries provide felony than 12 in for of less eases where may imprisonment year imposed. more than for one See La. Ann., Const., 7, §41; (Supp. Art. La. Crim. Proc. Code Art. 779 1969); Const., 1, 25; 18, 5, §22; Art. Art. Code Ann. S. C. S. C. §§ 15-618, (1962); Const., 1, 15; 5, §§10, 15-612 Tex. Art. Art. §§ 17; 4.07, Proc., (1966); Tex. Code Crim. Arts. 37.02 Tex. Pen. § Code, Const., (1961); 10, 12; Art. Utah Art. Utah Code §§ Ann. §78-46-5 addition, appears provide presently nine that at least States juries carrying less than 12-man of certain trials offenses year’s penalties imprisonment. maximum of one Brief for York, A13-A15, Appellee ante, p. (collecting Baldwin v. New statutory Q. provisions). (1932) Mass. 12p. See also 17 L. No. (noting interpreted “right jury” States that have of trial permit cases). “poll less than 12 in certain For practice,” post, state see Mr. concurring opinion, Justice Harlan’s 122, 136-137, App. *19 standard,
purposes jury Measured trial. in- regarded be as an the 12-man cannot requirement of dispensable component the Amendment. Sixth Duncan, jury trial, The of as we noted in purpose the “Provid prevent oppression to the Government. is of tried by jury the to be a ing an accused the safeguard against him an peers his inestimable gave com corrupt prosecutor against and the or overzealous Louisiana, Duncan judge.” or eccentric pliant, biased, the essential feature supra, purpose, at Given this 156. interposition obviously of a lies in the between jury judg the and his of the commonsense accused accuser community of laymen, ment a of group participation responsibility results and shared that guilt from of or innocence. group’s determination performance this role is not a function of the body the particular up number makes jury. sure, large To be the number be probably should free enough promote group deliberation, to from outside attempts intimidation, provide a possibility to fair representative for cross-section of the com obtaining find munity. But we little reason to think that these any are in less goals meaningful likely sense be jury six, achieved when numbers than it num when bers if particularly requirement unanimity 12— retained.46 And, certainly reliability jury requirement intimate no view or not whether unanimity indispensable is an element of the Sixth Amendment applies trial. much of the above historical While discussion unanimity former, requirement, as well as the 12-man latter, may important unlike well an serve role in the function, example, insuring as a device for that the Government proof. States, bear the burden of Hibdon heavier v. United (C. 1953); 204 F. 2d A. Tamm, supra, 25, 6th Cir. n. Comment, Jury at 139. But cf. Unanimity Waiver —Some Doubt, Doubts About Reasonable U. Chi. L. 441-443 Rev. hardly likely as a factfinder to be a function seems of its size.
It 12-man might suggested jury gives has more greater advantage a defendant a since he juror acquittal “chances” of will on finding who insist prevent advantage might and thus But the conviction. just easily belong which also needs State, only prevent one out of juror insisting guilt twelve on acquittal.47 experiments What few have occurred —usu- ally in the there no discern- civil area —indicate that *20 the ible difference between the results reached two currently avail- juries.48 short, different-sized neither nor the 12-man theory49 suggests able evidence Project (1954). generally American Bar Association on Stand- See Justice, by Jury (Approved Trial Draft ards Criminal 42-45 1968). 47 true, course, “hung jury” thought might It is be to of the advantage defendant, result a minimal for the who remains uncon- enjoys prospect prosecution victed and the will even who that the tually subsequent dropped juries “hang.” be if also Thus a 100-man undoubtedly jury than 12- would be more favorable for defendants six, jury. comparison man But when the is between 12 the odds and continually “hanging” jury slight, seem the numerical of unlikely difference in the number needed convict seems to inure advantage perceptibly to the of either side. 40-41; 25, Wiehl, supra, Tamm, supra, n. at n. at 134- 136; Cronin, Courts, in District 2 Boston B. J. Six-Member Juries (1958); p. 27 No. Six-Member Juries Tried in Massachusetts Dis Court, (1958). Jersey trict 42 Am. Jud. New J. Soc. 136 See also Bull, Admin, Experiments Jury, with Six-Man of the Section of Jud. (May 1966); Jury Cases, A Phillips, of ABA of in All Six Conn. B. J. 354 operative contributing group Studies of the factors to small decisionmaking suggest jurors minority deliberation and likely on the first are proportional ballot to be influenced majority aligned against size them. See H. Kalven & H. Zeisel, Jury 462-463, (1966); Hawkins, American 488-489 C. Realignments Interaction and in Consensus-Seeking Coalition Groups: Study Experimental Jury A 13, 146, 156, Deliberations Aug. 17, to the defendant advantageous more
jury necessarily members. composed than of fewer jury viewpoints number theory while in Similarly, in- randomly jury ought selected represented on a practice jury increases, of the crease the size as jury 12-man and the six-man difference between the community repre- terms of the cross-section 12- Even the negligible. likely sented seems every distinct representation man jury cannot insure the use of particularly given community, voice in the exclu- arbitrary as challenge. long As peremptory for- jury rolls are particular of a class from sions Commission, Jury g., e. Carter v. U. S. bidden, see, (1970), the concern that the cross-section 320, 329-330 decreased will be diminished if the significantly in size from 12 to six seems an unrealistic one. conclude, short, began:
We as we the fact that precisely 12 is a composed common law was unnecessary accident, purposes historical to effect the jury system wholly “except without significance Louisiana, mystics.” supra, Duncan v. at 182 (Har- read the Amendment J., dissenting). To Sixth lan, *21 Library Asch, (unpublished Congress); file at cf. thesis on Group Upon Effects of Pressure the Modification and Distortion (G. Judgments, Readings Psychology Swanson, Social Hartley al., eds., 1952). Note, generally T. Newcomb & E. et Instructing Juries, On Deadlocked 78 Yale L. J. 108 and n. 30 (and cited), if authorities 110-111 Thus a defendant needs initially persuade jurors four that the State has not met its proof escape burden of in order to ultimate 12- conviction jury, arguably by initially escapes man he persuading half that jury; reduction, number in limits, a six-man random within absolute number of the would not affect the outcome. See Joiner, Jury 31, (1962) also C. Civil Justice and the (concluding the process deliberative should be the same in either six- the jury). or 12-man pur- real a feature so incidental to the codifying forever Amendment is to ascribe a blind formalism pose considerably more require to the Framers which would we been able to discover evidence than have history Constitution or rea- language do mean to in- past of our decisions. We soning can legislatures good timate that never have reasons preferable for the 12-man concluding jury, smaller that such conclusions—reflected provisions system50— most and in States our federal any well Legislatures may are sense unwise. have their own views about relative value of larger may juries, wholly and smaller conclude that, apart primary the jury’s function, spread from it is desirable responsibility the collective for the determination of guilt larger among group. capital cases, example, no appears provides 12 jurors— State for less than implicit a fact that suggests recognition value body of the larger legitimating society’s as a means of decision to impose penalty. death Our holding does no more than leave these considerations to Congress and States, interpretation unrestrained an of the Sixth Amendment that would forever precise dictate the number that can constitute a jury. Consistent with this holding, petitioner’s we conclude that Sixth Amend- ment rights, applied to the States the Four- through teenth Amendment, were not violated Florida’s deci- provide sion to a six-man than rather a 12-man jury. judgment of the Florida District Appeal Court of
Affirmed. Mr. Justice Blackmun took no part in the consid- eration or decision of this case. *22 (b) Fed. Crim. (“[j]uries Rule Proc. 23 12”). shall be of COURT THE OF
APPENDIX TO OPINION 1.200: Fla. Rule Proc. Crina. prosecuting of the demand
“Upon the written as is known particularly as attorney, specifying time date place, prosecuting attorney, such a defendant charged, of the crime of the commission to offer evidence case a criminal who intends days than ten an not less shall, alibi his defense may the court before trial or such other time as at- upon prosecuting file direct, and serve such to claim writing of his intention torney notice in- specific alibi, notice contain such which shall place to the at which the defendant formation as alleged claims to have been the time particularly to defendant and, offense as as is known or attorney, his the names and addresses proposes witnesses whom he such establish de- receipt Not than five after days alibi. less list, fendant's witness such other times as may direct, attorney court shall prosecuting upon file and serve the defendant the names and particularly addresses are (as prose- as known attorney) of the cuting proposes witnesses the State to offer in rebuttal to discredit the alibi defendant’s at the trial of the Both cause. the defendant and the prosecuting attorney shall be under a continu- duty ing promptly disclose the ad- names and dresses additional witnesses which come to the party attention of either subsequent to filing their respective provided witness lists as this rule. If file a defendant fails to and serve a copy such required, notice herein may the court exclude evidence offered such defendant for purpose of proving alibi, except an testimony If defendant such himself. given notice is by a *23 testimony defendant, the may the court exclude of for the any offered the defendant witness of if ad- purpose proving an alibi the name and is known particularly dress of such witness as as to defendant in such attorney or his is not stated If to file prosecuting notice. the fails attorney copy serve a on the defendant of list of witnesses provided, may as herein the court exclude evidence offered the state in rebuttal to the defendant’s If prose- alibi given by evidence. such notice is cuting the testi- attorney, may court exclude of mony any witness offered at- prosecuting torney purpose of rebutting defense alibi if the name and address of such as witness particularly attorney known to prosecuting not stated in such For good notice. cause shown the court may waive of this requirements rule.” Chief MR. Justice Burger, concurring.
I join in Mr. fully opinion Justice for the White’s I an Court. see added benefit to the rule notice-of-alibi important it will serve by way functions disposing of cases without appropriate circum- stances —a importance matter considerable when prosecution courts, offices, and defender legal aid and agencies are vastly prosecutor upon overworked. receiving will, notice investigate course, prospective If alibi witnesses. he finds them reliable unim- peachable he will doubtless re-examine his entire case process very likely and this would lead to dismissal of charges. might In turn he to determine obliged false why charges were instituted and where the break- down occurred examination evidence that led to a charge. hand,
On other inquiry into a claimed alibi defense it to may reveal be contrived and fabricated and the or subject impeachment other accordingly witnesses would be defense counsel this situation attack. his if found client and, case he to re-examine his obliged either seek testimony, the use false proposed has persuade his client try from the case withdraw plea which possibly by *24 of discussions plea a guilty, enter charge. on a lesser disposition lead to could been justice ends of will have served In either case the likely These are the con- processes expedited. and pretrial truly reciprocal enlarged of an and sequences from the away and the move of evidence disclosure justice. idea of “sporting contest” criminal Douglas Black, with whom Mr. Justice Justice Mr. in part part. in and joins, dissenting concurring consistently today can, holds that a State The Court to the United Consti- with the Sixth Amendment States try a in a criminal with a tution, defendant case I with that decision for substan- agree six members. ' My tially by the given the same reasons Court. Brother Harlan, charges that the Court’s decision on however, “incorporation point doctrine,” this evidence specific provisions which the the Bill of through fully applicable are made to the under the Rights States in applied same federal will somehow standards courts1 result in a protections required by “dilution” those provisions. He asserts desire to relieve Court’s rigorous requirements from the of the Bill States is bound to cause and Rights re-examination modifica- tion prior decisions interpreting provisions those as in applied federal courts in order to simultaneously apply provisions equally State Federal Govern- ments and avoid undue restrictions on the States. assertion no in support This finds today’s any decision or Winship, cases cited in re 1See 397 U. S. n. (1970) (Black, J., dissenting). emphatically
other We have decision this Court. Amendment “rejected notion that the Fourteenth subjective applies 'watered-down, only to the States Bill of guarantees version of individual ” Malloy Hogan, 10-11 U. S. Rights.’ any way no attributable Today’s decision more Amendment in order desire to dilute the Sixth solely easily apply States, but follows a necessary duty our to re-examine consequence of mean- prior to reach the correct constitutional decisions early ing implications case. The broad each cases of 12 members indicating only body could arose satisfy requirement Sixth Amendment squarely presented where the was not situations issue based, my inter- opinion, improper were on an pretation question pre- of that amendment. Had the sented arisen in a decision here federal court before our *25 Louisiana, in Duncan v. (1968), S. 145 this Court U. my in would reached the result an- still, view, have today. In my opinion nounced danger diluting Rights protections “incorpora- Bill of lies not in the doctrine,” tion but the “shock the conscience” test on my rely which Brother Harlan would test instead —a which depends, language Constitution, on the solely majority but on views of a the Court to what is and “fair” “decent.” also holds State can a defend- require Court that a
ant in a criminal case to disclose advance of nature of alibi give his defense and the names ad- support dresses witnesses he will to defense. call requirement, majority says, This does not violate Fifth prohibition against compelling Amendment a crim- inal defendant to be a against Although witness himself. only this case itself involves provision, notice-of-alibi is clear that decision means that a can State require a defendant disclose advance trial any possibly
and all information he use to defend him- might my decision, view, self at trial. This is a radical and departure from the dangerous historical and constitu- tionally guaranteed of a defendant in a criminal completely silent, case to remain requiring State prove any any its without from case assistance of kind the defendant himself.
I majority’s The core of the assumption decision is an that compelling a defendant notice of give an alibi defense before a trial is no different from requiring a defendant, produced after the State has the evidence him against trial, plead alibi before the retires to consider the assumption clearly case. This revealed by the pressures statement "the that bear on pre-trial decision are of the [a same nature defendant’s] as those that would him induce to call alibi witnesses at the trial: the force of beyond historical fact both his and control State’s and the strength of the State’s case Ante, on built these facts.” at 85. That statement plainly simply wrong as a matter of fact and law, and the Court’s based on holding that statement is complete misunderstanding protections provided for crim- inal defendants the Fifth Amendment pro- and other visions of the Bill of Rights.2 frequently stated, I my As have opinion the Fourteenth part adopted Amendment was in in order to provisions make the Rights fully applicable of the Bill of See, g., States. e. Adam son California, (1947) 332 U. S. (dissenting opinion). *26 This Court provisions has now held almost all these apply do States as well Government, as the Federal including the Fifth provision Amendment Malloy involved in this Hogan, case. See (1964); U. S. cases Winship, cited In re 397 U. S. (1970) (Black, J., 382 n. 11 dissenting). When this Court is upon called meaning to consider the particular of a provision of the Rights Bill of arising a case from a state court or a —whether
A required When a defendant is to indicate whether he vastly plead trial, alibi in advance of he a might faces different can decision from that faced one who wait him presented until the has before against State the case making up his Before mind. defendant knows might only what the State’s case be. Before trial there no thing case”; is such as the “strength State’s possible there is only range of cases. At that time there is no kind of certainty as to what case the State will ultimately be able to prove any ap- at trial. Therefore praisal of desirability be pleading alibi will beset guesswork greater far ac- gambling than that companying the decision at Any lawyer the trial itself. who actually has tried a case that, regardless knows pretrial preparation, amount of a case far dif- looks ferent when actually it is tried when being than it only being thought about.
The Florida system, interpreted by the majority, plays upon uncertainty this inherent in predicting the possible strength effectively of the State’s case order coerce defendants an into disclosing alibi defense that may never be actually rule, used. Under the Florida plead defendant who might alibi must, least days before the date of tell the trial, attor- prosecuting ney might he claim an alibi else the defendant faces real threat that he may completely barred necessary federal one—it is specific language look to the provision and the intent Framers when Rights the Bill of adopted. itself was approach necessary, This not because the Framers Rights apply intended the Bill of to the States when proposed application was but because the provi- of those sions to the requires States the Fourteenth Amendment that the original governing intent be the consideration in state as well as federal cases. *27 Ac- alibi. support of his presenting
from witnesses required gives if he Court, however, to the cording “[n]othing such his mind changes notice and later him prevents rely on an alibi requires rule [him] left to these matters are defense; abandoning from Ante, in most sit- at Thus choice.” his unfettered plead- any possible thought uations defendants inten- disclose their compelled in effect alibi are ing possibility raising of later preserve in order to tions and Necessarily few defendants at trial. the defense of that to risk the loss lawyers willing their will be pres- Clearly the disclosing the alibi. possibility an alibi created plead sures on defendants to pressures from the procedure only quite are not different significantly at the trial but are in fact operating itself, assertion, pre- greater. Contrary majority’s cannot a matter analyzed simply trial decision be “timing,” operating influenced the same factors at itself. apparently Court also assumes that a defendant given required who has notice can abandon his alibi hurting assumption implicit without himself. Such an necessary for the majority’s argument pretrial decision is no different from the trial I, itself. however, lightly pre- cannot so assume that trial notice will no have adverse effects on a defendant who later forgo Necessarily decides to such a defense. prosecutor the defendant will have given the names persons may who have some knowledge about defendant himself or his activities. Necessarily pros- every ecutor will have question incentive to per- these fully, doing sons so he may discover new leads or evidence. Undoubtedly there will situations which the State will seek to use such information —infor- mation it would probably never have obtained but cooperation. the defendant’s coerced
B *28 in me, however, any It is for to unnecessary engage concerning practical such gymnastics intellectual the the Fifth procedure, effects the notice-of-alibi because person itself clearly provides Amendment that . . . “[n]o compelled shall to any criminal case be witness If against given words are to be their plain himself.” and meaning, opinion, obvious that provision, my required states that a criminal defendant cannot be to give evidence, other testimony, any assistance to the to it in convicting State aid him crime. Cf. Schmerber California, S. 773 (1966) J., U. dis- (Black, senting). my Florida notice-of-alibi rule in opinion patent is a violation of that provision constitutional be- it requires cause a defendant to disclose information to so that can use State State information to destroy It me slightly him. seems to at least incredible to procedure may this suggest have beneficial some effects defendants. There is no need to encourage they defendants to take actions think will help them. The fear of conviction and the substantial cost or incon- prosecutions venience from resulting criminal are more than sufficient incentives make defendants want help themselves. If a defendant thinks that dis- making closure of an alibi before trial inis his best interests, he obviously only will do so. And time the needs State compulsion provided by procedure this is when the defendant has decided that such disclosure is likely to hurt his case.
It no answer to argument to suggest that interpreted Fifth Amendment so would give the de- an fendant unfair of surprise, element turning a trial “poker into a game” or “sporting contest,” for that advantage tactical the defendant is inherent type required by of trial Bill of Rights. our The Framers pros- investigative of the awesome
were well aware it was order to government powers ecutorial spelled out in detail they powers limit those followed in criminal procedure to be the Constitution entitled to notice of defendant, they said, A trials. him, by jury, right charges against to confront and cross- defense, right counsel for his witnesses in his witnesses, right examine to call against own and the not to be witness behalf, rights designed All of these are to shield himself. power. designed the defendant state None are against they clearly to make convictions easier and taken together system proving indicate that our the entire burden of activity criminal on the The defendant, rests State. *29 Constitution, under our need not do anything at all to defend and he himself, certainly required cannot be to help convict himself. Rather he has an absolute, un- qualified right compel to the to investigate State its own case, prove find its own witnesses, its own facts, and convince through the its own resources. Throughout process the the defendant has a fundamental to right remain in silent, effect the challenging State at every point to: “Prove it!”
The Bill Rights thus type sets out the of consti- tutionally required system the that State must follow in order to convict individuals of system crime. That re- quires the that State itself must bear the entire burden any without assistance from the defendant. require- This clearly ment in indicated the Fifth Amendment itself, apparent but equally when specific all the provi- of the Bill of Rights sions relating to prosecu- criminal tions considered together. are And when question a constitutionality the concerning aspect some of crim- procedure arises, inal this Court must consider all those interpret provisions and them together. The Fifth prohibition Amendment against compelling a defendant isolated, to not an dis- against be a himself is witness part system constitutionally tinct It is provision. its true be seen required procedures, meaning and can only provisions. of all those construc- light “Strict the tion” of the words of Constitution does mean only phrase, clause, the Court can look to one expect find sentence in Constitution and to right provision answer. Each has clear and definite provisions may various considered meaning, together equally only have and definite It is meaning. an clear specific attention to the the con- through words, sensitive they used, history text which are and the surrounding adoption provisions meaning those true the Constitution can be discerned. absolutely
This constitutional to remain silent by superficially cannot avoided analogies attractive to any “compulsion” inherent so-called itself may put lead a defendant to on evidence his Obviously own contemplates defense. Constitution “compelled” that a defendant can be trial, stand obviously will process there be times when the trial itself will require defendant to do in order something try avoid conviction. But Consti- nothing permits tution State add to natural conse- quences compel of a trial and defendant advance *30 participate any of way attempt trial to State’s to condemn him. part
A criminal trial inis a search truth. But it system protect is also a designed by “freedom” insuring criminally punished that no one unless the has State admittedly first succeeded the difficult of task con- vincing a the is guilty. defendant That task by is made more the of difficult Bill Rights, may Fifth Amendment be one most difficult of to surmount. The barriers Framers decided that the from be derived benefits to kind of required by any were well worth loss in “effi- Rights Bill ciency” Their resulted. decision constitutes final word on the absent some constitutional subject, amendment. That decision should not be set aside as today. the Court does
II On the surface a only this case involves notice-of- alibi but in effect the provision, opens way decision profound for a change important one of the most traditional safeguards criminal defendant. of today’s rationale decision is in no way limited to alibi or defenses, any type other classification evidence. The theory goes advanced permit least so far toas the State to obtain complete under threat sanction disclosure the defendant in advance of trial of all evidence, testimony, and plans tactics he to use at that In each justification trial. case the will be that the rule affects only “timing” of the disclosure, and not the substantive decision itself. This inevitability is clearly revealed the citation to Superior Court, Jones v. 2d ante, Cal. P. 2d 919 (1962), at 83 n. 13. case, theory of which the today Court adopts entirety, its a defendant rape case disclosed that rely he in part would on a defense of impotency. The prosecutor successfully obtained an order compelling defendant to reveal the names and any addresses of doc- tors he consulted and the reports medical any examina- tions relating the claimed incapacity. That order was upheld by the highest court in California. There was no “rule” or statute to support such a decision, only the Supreme California Court’s sense of fairness, justice, and judicial efficiency. The majority there found no barrier judicial pretrial creation of discovery by the State against the defendant, least of all a barrier raised any prohibition constitutional on compelling the defendant to be a witness against himself. *31 the Jones rationale dangerous implications
adopted today are limited to the disclosure not, however, already decided he of evidence that defendant has Grove, 2d will use at trial. State 65 Wash. Washington Court, 2d (1965), Supreme 398 P. Jones, in relying on held that a defendant murder trial a could be he his compelled produce a letter had written he crime, wife about even had no alleged though in thought using at all evidence his own behalf. These sufficient of the inch-by-inch, cases are evidence case-by-case process by which the of today’s rationale radically system decision can used to transform be our justice criminal into process requiring a the defendant in him, or convicting punished assist State failing to do so. hint in brief
There is a the State’s in this case—as1 fear, in as, opinion well I the Court’s the ever- —of recurring suggestion constitutionality test in “fairness,” “decency,” the test short Court’s views Occasionally own of what is “best.” this test emerges in an disguise intellectually satisfying “dis- or “analogy” designed up tinction” to cover a decision procedure proposed based on the wisdom of a rather than conformity its with the commands Constitution. my in view, a course, Such involved this case. This step away decision is one more from the written Consti- system tution and radical departure from of crim- justice country. inal that has prevailed this Com- pelling defendant a criminal case to be a witness in any way, himself against including the use of the system discovery of pretrial approved today, was un- law, except known for the English unlamented pro- ceedings the Star Chamber type courts —the of pro- ceedings the Fifth Amendment designed prevent. was years practically For first history Nation’s adopting procedures no considered such State compelling *32 although himself, help to convict defendant a criminal any were our history not indicate that ancestors does and efficient or of a fair intelligent having less solicitous History does- than we are. justice of criminal system dangers familiar the of persons well indicate that were process of oppressive and use the criminal arbitrary protection the of dangers to limit for determined such They were every country. and inhabitant of each day be sub- might aware that individual some any well and in order to jected prosecution, to criminal it was they protect the freedom of each of us that restricted any of ability punish imprison us. Government’s spite history oppression produced of Yet Rights strong gov- Bill of reluctance of our compel ernments to a criminal defendant to assist in today em- conviction, own the Court reaches out to his sanctify opportunity first dan- brace and at the a most departure from the Constitution and the tradi- gerous safeguards persons tional afforded accused of crime. I accept express my such a result and cannot must most dissent. emphatic disagreement and part. dissenting Marshall, Mr. Justice I opinion. I Part join However, the Court’s since I believe that the Fourteenth Amendment guaranteed jury pass upon 12 to question Williams of his he prison or innocence before could be sent to guilt I life, the rest of his dissent from the affirmance his conviction. Louisiana,
I holding adhere of Duncan v. “[bjecause 145, (1968), that U. S. . . trial . cases fundamental criminal is the American scheme . . justice . the Fourteenth Amendment guarantees all criminal cases which—were tried in they to be a federal court —would come within guarantee.” Amendment’s I Sixth And agree with the same the Court by jury” guaranteed “trial to state defendants the Fourteenth Amendment as to federal defendants Sixth. “Once it decided particular that a Bill of Rights guarantee is ‘fundamental justice’ to the American scheme of . . . same consti- apply tutional both against standards the State Maryland, Benton Federal Governments.” v. 395 U. S. At time, the same I adhere the decision of the Court Thompson Utah, (1898), 170 U. S. *33 jury guaranteed by the Sixth Amendment “of consists persons, twelve neither more nor it, less.” As I see has Court not made out a convincing case that the Sixth Amendment should differently be read in than was Thompson even if the matter de were now before us novo—much less that an precedent unbroken line of going years back over should be overruled. The arguments made Mr. Justice Harlan in Part IB of Thompson opinion persuade his me that when was decided and still states sound I am doctrine. equally convinced that the requirement of 12 be applied should to the States. ante,
Mr. in Justice Harlan, dissenting No. p. 66, in concurring result No. 927. Louisiana, In Duncan v. (1968), U. S. 145 my held, dissent, joined by Court over Mr. Justice Stewart, that a state criminal defendant is entitled to a any which, in case if a brought in federal court, require would under the Sixth Amendment. Baldwin New Today concludes, the Court No. v. York, York that New cannot constitutionally provide carrying up year misdemeanors sentences to one shall be tried in City New York without jury.1 At City, Outside of New York such cases are triable before six- juries. member 927, Williams in No. holds time the Court
the same satisfies six-member-jury statute Florida, Florida’s by States as carried Amendment the Sixth of this necessary consequence The holding.2 Duncan constitutionally are not juries that 12-member decision is either. trials criminal required federal under- the Court which argument The historical does Amendment that the Sixth justify its view takes much my opinion, juries is, require 12-member of this decision. true thrust thin to mask the too “incor- recognition I think, a evinces, decision the Four- Clause of of the Due Process porationist” view and is now underlay Duncan Amendment, teenth which Baldwin, tempered to allow must be carried forward into their own crim- ordering more elbow room States I But to accom- agree. much systems. inal With that within protections constitutional plish by diluting this I cannot something itself which system federal of Duncan possibly Tempering rigor subscribe. by facing up to the fact that forthrightly, should be done does “incorporation” area the doctrine at least structure, our federal the same not fit well with *34 wrongly Duncan was decided. token that 1 would sustain both the Florida and New York stat- in premises my on the constitutional discussed utes Duncan, seq. opinion S., in 391 U. at 161 et dissenting Baldwin, in I In that course in taking cannot, a matter very pulse adju- of sound goes that constitutional myself by stare dication, consider constricted decisis.3 2 jury provides capital 12 in Florida for a of cases and a six-member jury try (1) “to all other criminal cases.” Fla. Stat. 913.10 § (1967). said, speaking As Mr. Justice Frankfurter for the Court: decisis important policy. repre- an embodies social It
“[Sitare continuity law, psycho- sents an in and is in element rooted stare satisfy expectations. decisis logic need to reasonable But principle policy is and not a mechanical formula of adherence I Accordingly, and, jury dissent No. as to the issue, Malloy in No. concur result 927. Given Hogan, v. I (1964), join 378 U. part S. opinion in No. 927 relating Court’s to the Florida “alibi” procedure.
I predicate my As a for conclusions, map it useful to the circuitous route that has been taken in order to reach the results. cases, patently both more in Williams Baldwin, history practice than systems both the state and federal has been indiscrim- jumbled inately together opposed point departure having been taken from which language guarantee expressed and the historical federal precedent brings The consequence life. approach this inverted to interpreting the Sixth Amend- ment results, fortuitously,4 Baldwin in a Sixth Amend- ment rule that would be reached ap- under correct proach, given “incorporationist” philosophy Duncan, but, unhappily, imposes it jurisdic- on the one tion in the country that has seen to do fit otherwise; and in Williams results in Sixth Amendment rule could only be reached by standing the constitutional dialectic on its head.
A To the the prevailing opinion premises extent that its conclusions in the Baldwin precedent case on federal agree common-law I that the practice, federal decision, questionable, to the latest however recent and when such prior adherence involves collision with a embracing doctrine more scope, intrinsically sounder, in its by experience.” and verified Helvering Hallock, 309 U. S. except provide While all York States New trials for *35 carrying more, crimes of good sentences six months or there is a diversity jurors deal of as stage to the number of and the which at jury to trial attaches. i—i o by as punishable where an offense is trial attaches I think this follows imprisonment. as six months’
much of the Sixth language from the both breadth jury in “all criminal provides for a Amendment, which practice. of historical prosecutions,” and the evidence in the usage I contemporary believe that regard this For if exceptions if any, significance.5 is of little, States of all-embracing language are be created out to they only are should be those that Sixth Amendment history. anchored in “petty” between and “serious”
It is to the distinction
law,
this Court has
offenses, rooted
common
the federal
to
the metes and bounds of
looked
ascertain
District
by the
Amendment.
Sixth
right guaranteed
Clawans,
(1937);
v.
Schick
Columbia
121
to draw the line
months
federal
appropriate
at six
not en-
cases,7
for
I
although,
follow,
reasons to
would
requirement.8
cumber
the States
7
significant
said that
index to the
Court has
the most
While this
attaches,
degree
penalty
is
of
seriousness of an offense
(1969);
States,
District
Frank v. United
395 U. S.
148
see
of
Clawans, supra,
Columbia v.
it should be recalled that
this is not
punishment
“apportioned
and that
was both
alone determinative
consequence
quality
minor
and an
of
of the misconduct
index
community’s
judgment upon
&
moral
it.” Frankfurter
Cor
coran, supra,
severity
pun
at
In Clawans
980.
the Court held the
is
ishment was not determinative when
offense
its own nature
Wilson,
grave.
S.,
625;
not considered
300
U.
at
see also Callan
supra,
556;
States, supra,
Schick v. United
where this Court
severity
punish
noted that
the “nature” of the offense and the
ment are two distinct considerations. Cf. the House debate in
provide
magistrates
1930 over a bill to
for a trial
federal
before
Cong.
petty nature,
9991-9994;
for crimes of a
72
Rec.
see also
Rep.
(1930)
Cong.,
(minority views);
H. R.
No.
2d
71st
Sess.
Comments,
Project
American Bar Association
on Standards for
Justice,
by Jury
(Approved
Criminal
Trial
1968);
Draft
Com
ment,
Petty
Category
Jury,
Offense
and
Trial
Yale
J.L.
question
I would reserve the
as to whether a
required
particular
would
in a federal ease for a
offense not
punishable by
prison.
more than six
months
Equal
Nor
Ido
think it offends the
Protection Clause for New
provide juries
York
to
punishable by
to hear offenses
six months
City
in New
provision
York
but to have such a
for trials else
Salsburg
where in the
In
v. Maryland,
(1954),
State.
B about-face. does an strangely In Williams the Court undeviating hitherto by bind States Rather than juries, 12-member practice federal unquestioned *37 practice, of state poll on a holds, based the Court by jury of a trial the jury guarantee satisfies a six-man consequently carries system and criminal in a federal renvoi. a constitutional This is to the States. over today it would I that before respect, consider With all Amend- that the suggest Sixth been unthinkable have by six, jury is satisfied a by jury ment’s to a Williams, in by opinion the Court’s open left less, or as is verdict, question a also unanimous less than a today’s in decision. reserved livery from history the Court, stripping in off The 1. analysis. two-step With ardu- trial, relies on a jury the from “intent liberates itself the effort the Court first ous easy assumption past in our and “the of the Framers” jury at if a feature existed given decisions that 1789, necessarily preserved then it was common law Ante, at 92-93. Unburdened in the Constitution.” ” doing prevent its of the United States so.’ Constitution S.,U. at 551. part in Missouri v. Lewis also stated: of a
The Court “Where inhabitants, thickly settled, part has but few is and another State systems judicature may have different for it be desirable to by jury one, example, portions, for and not two —trial Large may require multiplication cities of courts the other. arrangement jurisdictions. It peculiar and a would be an un- powers government of the of the if it fortunate restriction State discretion, not, provide exigencies.” in its for these could various S., District, 32. also Ohio v. Akron Park U. 281 U. S. (1930); Ocampo States, United U. S. 98-99 disproportionate clog number of misdemeanor cases that now City infra, courts, III, New York see Part creates a difference of a justifies magnitude that more than the differences in treatment city non-city between defendants. yoke history then the Court concludes that protected by
policy jury guarantee require does not perpetuation its common-law form. argument is, acceptable
Neither in my view, an reason history and disregarding pronouncements numerous of this Court that made assumption” have “the easy composed Sixth Amendment’s was one of 12 assuming individuals. Even ambiguity as to intent common Framers,9 is merely sense and not 9The materials, by Court’s conclusions from the historical its own hardly admission, can argu characterized as solid. The entire ment seems to from the flow fact that the Senate Committee substi present language tuted the of the Sixth Amendment for the more specific incorporated unanimity requirement House version that expressly requisites.” tied the to “other accustomed But meaning change wholly speculative, for, apart from the “vicinage” requirement, there no concrete evidence cited Court to opposed likely show the Senate the more features of the *38 by adopted Madison version the House. In of an the context sparseness amendment for language,, likely notable its of a more ex planation the streamlining of Senate’s action is that it was the Mad assumption prominent ison version on the that most of the features jury preserved the would be a matter of course. This inter by pretation supported only of the is events the the fact that specifically objectionable jury feature of the common-law —the vicinage requirement by pre-empted language providing for a —was jury by district, leaving remaining thus the attributes expectation charged undefined in face the of distinct that those interpretation explana would look to the common law. Nor by fact, by Court, tion rendered less forceful the noted the that “reception” jury 12 unfailingly of the common-law did mean early times. acknowledges, colonial As the Court itself the States provided juries had constitutions in 1787 of 12. The arguments (1) simple jury in Court’s other reference to a — necessarily thought Article III mean Framers was not to the jury fight of common-law the need felt to add Amendments the Amendment; proposal for and Madison’s more elaborate the Sixth and, (2) law” in that the allusion “common the Seventh Amend backdrop suggests ment that it is not the for the Sixth Amendment require rejoinder. too remote to —are 124 fre- explains this Court’s of Framers that
blessing the interpretation the Consti- that: “The reminders quent necessarily influenced United States the tution language framed are provisions the fact that its light to be read law, and are common English Alabama, (1888). 478 history.” Smith v. U. S. its Justice forward Mr. again put was proposition This Wong United States v. for the Court in Gray speaking Ark, Kim where Court was (1898), U. S. in the “citizen” as used upon define term called nowhere defines “The Constitution Constitution. . . Citizenship . meaning of these words Clause]. [the interpreted it must be this, respects, In as in other his- law, principles the common and light familiarly known to the framers of tory of which were History S., the Constitution.” 169 U. at 654. continues In- interpretation. of constitutional wellspring to be a even in such deed, history was invoked Court Sain, Townsend v. 372 U. (1963), decisions as S. Noia, Fay v. (1963), pur- 372 U. where it S. interpret provision ported constitutional for habeas corpus conception according “historic of the writ” took the guarantee note was one rooted in United interpreted.10 should common law and be so Cf. Brown, States 381 U. S. accord- precepts, ance with these interpre- sound constitutional my requires, view, tation fixing federal as it was known to the common law. is, course, history
It true that not imprison should *39 those broad guarantees proper Constitution whose scope is to determined in given be instance a blend
10 I disagreed my While with the on these occasions, Court differ majority ences went to properly the conclusions that could history drawn from the common-law of the prece and writ Court, jurisprudential dents not to approach took history point departure. as a pur adaptation of understanding
of historical Katz v. United Cf. circumstances. pose contemporary Texas, 381 U. S. Estes v. States, (1967); 389 U. S. Olmstead v. opinion); (concurring (1965) 532, 595-596 J., States, (Brandeis, (1928) United 277 U. S. Lovett, 303, 318 328 U. S. United States dissenting); The Cardozo, B. J., concurring).11 (Frankfurter, (1946) not, is (1921). Process This Nature of Judicial term “a meaning however, giving a circumstance adapt necessarily envisioned ... so as [it] my uncontemplated.” opinion . circumstances . . States, in Welsh v. United in the result concurring by jury, The to a trial how U. S. from form. meaning apart historical enduring has no ever, is that the aspect argument the Court’s The second though one “12” is a historical accident —even number the 14th interruption recurred without that has since ante, way essential to 89) at is no century (see —and “safeguard is to jury trial” which the “purpose prosecutor against corrupt or overzealous against Ante, 100. compliant, biased, judge.” or eccentric mean- is no suggests, guide the Court history, Thus bears no relation to the whose form rights of those ing the 12-member fea- they reflect. this context policy re- apparently common-law of the classical ture mere adornment. by the Court as garded the umbilical cord justification cutting This second past itself, form of the ties the types “Broadly speaking, two of constitutional claims come from broad constitutional issues derive before this Court. Most .... Such of fairness written into the Constitution standards relatively very nature, play for questions, allow a wide their gives scope. legal judgment. other class no such individual very spe class of constitutional issues derives from For this second They . . defined provisions of the Constitution. . were cific by history history. meaning was settled that definition Their so S., 328 U. at 321. superfluous. . . was *40 it, maintaining I the most reason for compelling see jurors if that in its common-law form. For guarantee York, if now essential, why are not are six? What New virtue of Baldwin compelled by provide juries for the jurors of three are misdemeanors, trial concludes adequate “interposition between accused and his judgment accuser of common-sense of a group laymen,” adequate “community partici- and constitute pation [provide] responsibility shared which results group’s from that determination of guilt or innocence”? The required provides Court’s elaboration of what no standard and vexes the meaning right to a jury courts, federal as well as courts, by state uncertainty. Can it be doubted that a jury unanimous provides greater a safeguard majority than a vote of six? The uncertainty that will henceforth plague the by jury of trial meaning is itself a further sufficient reason hoisting history. the anchor to 2. The history circumvention of compounded by cavalier disregard pronouncements numerous of this Court that reflect the understanding jury one of 12 members and have fixed expectations accordingly. in Thompson Utah Thus v. a unanimous Court an- swered in the affirmative the question whether Sixth Amendment a jury “is jury constituted, as it was at common law, twelve persons, neither more nor less.” 170 U. (1898),12 S. appears that before Duncan no Justice of this Court has seen fit question holding, one that has often been reiterated. See States, Patton United 281 U. S. 288 (1930), where significance pronouncement The of this cannot be minimized. holding eight retrial a post was an ex facto perforce upon law is built conclusion of 12 was right merely of substance. If procedure were man by statute, required dated it would not have post the ex facto holding. pronouncements Court reaffirmed earlier and stated *41 that the three jury Sixth Amendment is characterized essential “(1) features: that should consist men, less; (2) twelve neither more nor the trial presence superintendence should be in the and under the a power them judge having to instruct as to the in respect (3) law and advise them facts; v. the verdict should be unanimous.” also Maxwell See Dow, 581, (1900); 176 U. S. 586 Rassmussen v. United States, States, 197 Andres 516, (1905); U. S. 527 v. United 740, 333 748 (1948) (unanimity).13 U. S. As Mr. Justice States, Frankfurter stated in Gore v. United 357 U. S. 386, 392 (1958), a applying provision constitutional history adjudication “rooted a long ... course of this impressive authority.” Court carries principle of stare decisis is multifaceted. It is solid foundation for our legal system; yet care must be taken not to use it to create an unmovable structure. It provides the stability and predictability required for the ordering human affairs over the course of time and a “public judiciary basis of faith in the impersonal as a source of judgments.” reasoned Moragne Lines, v. States Marine 398 U. 403 375, S.
13The Federal
provide
Rules of Criminal Procedure
for a
12,
23,
recently
year
Fed. Rule Crim. Proc.
and as
as last
lower
federal
courts have assumed this Court's
commitment
Fioravanti,
verdict of 12. United States v.
the unanimous
412
States,
(C.
407,
1969);
F. 2d
Williams v. United
418
A. 3d Cir.
g.,
(C.
e.
United
1964);
also,
(1940); Woodman, (1910); 218 U. S. Hertz v. (1970); Co., 405-406 Oil & Gas 285 U. S. Burnet v. Coronado applied, (Brandéis, J., dissenting). Woodenly (1932) confines precedent however, it builds stockade promulgated, when by rules, law ill-conceived present circum- unadaptable origin, or if sound in one should precedent is sacrosanct and stances. No pre- to vote overturn Court’s not hesitate reconsider settled holdings vious recent —or —old announced either principles prove dicta where the Lines, Moragne supra; Marine g., v. States practically (e. *42 Clerks, Boys supra), Markets v. Retail or jurispruden- States, tially (e. g., 244, Desist v. United 394 256 U. S. unworkable, (1969) opinion)) longer or no (dissenting States, (e. g., Katz v. contemporary suited life United (1967) opinion)). also 347, (concurring 389 U. S. 360 States, Chimel v. (1970); Welsh v. United 398 333 U. S. California, (1969); 752 Marchetti v. United 395 U. S. States, Texas, S., 39 Estes v. 381 U. (1968); 390 U. S. Hayden, 387 (concurring opinion); 595-596 Warden v. Wickham, 294 & Co. v. 382 U. S. (1967); U. S. Swift States, James v. United (1965); S.U. (1961) J.). (separate opinion Indeed, of it Harlan, depart today these me to from considerations move Duncan. inis, part, the framework of It the disregard stare apply, decisis in where it circumstances should which the is, necessity, Court driven Williams “incorporation” doctrine, that leads me decline to fol- low if Surely principle Duncan. of stare decisis means anything in the law, precedent should not means jettisoned yesterday be viable, when rule of remains reasonably creates no injustice, and can be said no less sound sponsored than rule those who seek incapable being wrong. demonstrated change, let alone Williams, however, workability casts aside The decision uncertainty. only and substitutes relevance today’s decision that discards reason I discern for can prece- judicial pronouncements and historical numerous interpretation look dent that sound constitutional would controlling, disquietude to as is the Court’s jurisprudential consequences wrought tension between the in Duncan and Baldwin and the “incorporation” in Williams which presents of the counter-pulls situation prospect practice the common invalidating for the providing States of less than 12-member trial of misdemeanor cases.
II the difference be- These decisions demonstrate process” tween each approach, a “due that considers particular on case its own bottom to see whether concept is one ordered “implicit alleged Connecticut, Palko liberty,” see U. S.
(1937), incorporation” and “selective is not an abstract the same one different verbal formulae achieve whereby incorpora- logic results. The internal selective if is both respected tion doctrine cannot be the Court faithfully meaning interpreting committed to *43 Rights recognizing federal Bill of and the governmental diversity country. that exists in The “backlash” Williams exposes in malaise, the there the Court guarantee in order to logic dilutes a federal reconcile the “incorporation,” “jot-for-jot the and case-for-case” the to application right States, federal with the of federalism. Can one doubt had Con- reality undermine tried to the common-law to trial gress Duncan came on by jury history before books the today would have barred such recited action? Can we
CO o Court when this is called expect performances repeat upon meaning to other federal to definition give guarantees “incorporated”? been that have in California, (1963),
In Ker v. I noted 374 U. S. an in result “The rule opinion concurring that: [of their ‘incorporation’] States, is unwise because with problems, put law enforcement should not be differing if jacket constitutional strait .... And Court prepared to relax standards in order to avoid [federal] unduly fettering States, this would be in derogation system law standards in the . enforcement federal . . .” Id,., Only California, last 45-46. Term Chimel v. supra, my I again expressed misgivings “incorpora- potency tion” would guarantees neutralize in fed- eral diversity courts order to accommodate the our system. federal I I reiterate what said in dissent in Dun- can, S., 391 U. at 175-176: history, either nor sense, “[N] supports using the Fourteenth Amendment put straitjacket States a constitutional respect to their development own in the administration of criminal or civil law.” we Since major now witness the first attempt free wriggle of that “straitjacket,” appropriate, I think, step back and perspective view in how far the incorporation doctrine has us, put taken spot- light on a constitutional revolution that has inevita- bly become process obscured by the of case-by-case adjudication.
A history recent adjudication constitutional state criminal cases is the ascendancy of the doctrine of ad hoc (“selective”) an incorporation, approach that absorbs one-by-one guarantees individual of the federal Bill of Rights into Due Process Clause of the Fourteenth Amendment, and holds applicable them to the States with all the subtleties and refinements born of history
131 in experience developed and embodied in case the context exceptions with adjudication. Thus, of federal few my “incorporated,” protest,14 Court has each time over protections almost all the criminal found within the first and eight Constitution, Amendments to the made them “jot-for-jot applicable and case-for-case” to the States. Ohio, Mapp v. 643 process began 367 U. S. (1961), applied where the Court to the the so- States exclusionary called rule, rendering inadmissible at trial Amendment, evidence seized violation of the Fourth Colorado, thereby pro and tanto 338 overruling v.Wolf my dissenting opinion, S., U. S. 25 See 367 U. particular upon Mapp at 672. The course embarked was blindly California, followed to its end in Ker v. 374 23 (1963), U. S. where the Court made federal standards probable applicable cause search and seizure States, thereby overruling the remainder of Wolf. my opinion concurring result, 374 S.,U. at 44. Malloy Hogan, Thereafter followed v. 1 378 U. S. (1964), California, and v. 380 U. 609 (1965), overruling S. Griffin Twining Jersey, Newv. 211 Adamson (1908), U. S. 78 California, v. 332 (1947), U. S. 46 incorporating
14 g., separate opinions e. Poe text, see, In addition to noted Ullman, 497, 522, (1961) v. 367 (dissenting opin U. S. 539-545 Connecticut, ion) ; Griswold v. 479, (1965) (concurring 381 U. S. 499 York, Lanza v. New judgment); 139, (1962) in the 370 U. S. 147 Wainwright, Gideon v. (concurring opinion); 335, 372 U. 349 S. (concurring opinion); Murphy (1963) Comm’n, v. 378 Waterfront Page, 52, (1964) U. Barber v. (concurring judgment); S. 80 Berger York, (1968) 719, (concurring 390 U. S. 726 v. New opinion); California, 41, (1967) opinion); Chimel v. (dissenting 388 U. S. 89 supra; Swenson, Ashe 436, (1970) v. (concurring U. S. Alabama, ante, Coleman v. opinion); (1970) p. (separate Illinois, Bloom v. opinion); 194, (1968) (dissenting 391 U. S. Washington Texas, opinion); (1967) v. (concurring 388 U. S. Dickey Florida, result); (1970) (concurring 398 U. S. opinion).
132
self-incrimination
against
privilege
Amendment
Fifth
whether
must determine
standards
“the same
holding
proceeding
or state
a federal
in either
silence
an accused's
dissenting opinion
my
at 11. See
S.,
378 U.
justified.”
in
my concurring opinion
and
S.,
at
Malloy, 378 U.
in
brought
also
year
The
at 615.
Griffin,
S.,U.
380
Griffin
Texas,
(1965), overruling
400
Pointer v.
380 U. S.
forth
Massachusetts,
Stein
(1934),
97
and
v.
291 U. S.
Snyder
(1953), by holding that
York,
156, 194
v. New
346 U. S.
applied
Confrontation Clause
Amendment’s
Sixth
my
Federal Government. See
and
equally
States
In
S.,
in
at 408.
opinion concurring
result,
380 U.
swept
“speedy
guarantee
in the
trial”
incorporation
1967
Carolina,
North
Klopfer
Amendment.
v.
Sixth
Louisiana,
Duncan v.
(1967),
386 U.
213
1968
S.
supra,
right
rendered
Amendment
trial a
Sixth
secured
the Fourteenth Amendment Due Process
Only
Clause.
last Term the Court
Palko v.
overruled
Connecticut, supra, and held that
jeopardy”
“double
protection of the Fifth Amendment
incorporated
was
into
and hence
Fourteenth,
also carried to the States.
Benton Maryland,
my
“incorporated,” although
California,
Gilbert v.
(1967),
That these doctrines are not in rhetoric alive in the practical but vital world of affairs is evidenced by contemporary desirability debate concerning to “local” returning government the administration many years and functions that in programs have late in increasingly been centralized the hands of the National Government. arrange presence lineups,
States must of counsel at see Mr. Justice Wade, United States v. separate opinion White’s 388 U. S. (1967), joined, which I is because those decisions incorrectly require, my view, counsel in circumstances where his presence necessary under either the Sixth Amendment my separate the Due in Coleman opinion Process Clause. ante, Alabama, today, p. decided 19.
B of federalism vitality of the the best evidence But The merits or demerits decision Williams. today’s be debated and those system course, jury can, requirements the common-law have diluted States that protection that the as known at com- a conclusion evince trial, only necessary for a fair or is such mon law is not of a fair trial that inconvenience marginal assurance other assembling outweighs gains 12 individuals justice by only in- using administration achieved six (or dividuals none at all as was case New York City). in Baldwin prevailing opinion rejects what would approach, the consistent requiring affirmance, simply City
because New York is the single jurisdiction in the try Nation that sees fit to misdemeanants jury. without a doing it, effect, so process” holds that “due is more offended a trial without a for an punish- offense able no more year than a in prison than it is a trial with a six or less for pun- offenses *47 by imprisonment. ishable life ignores This both the basic of fairness the New York procedure peculiar and the local considerations that have led the New York Legisla- ture to conclude by that jury more apt is to retard than further justice for criminal in defendants New York City.
I, one, find in nothing unfair the New York system provides which city defendant with an option, in lieu of a of a jury, bench trial before three judges, N. Y. C. Crim. Ct. Act § 40. I Moreover, think it counterproductive of in fairness criminal trials to by hold of way incorporation juries that are required of States in these days when congested calendars and attendant delays make what many students of criminal justice feel one injus- of most contributions to significant tice hardship to criminal defendants. of by Appeals statistics cited the New York Court in amplified revealing the briefs are and trenchant
evidence of the crisis that the ad- presently bedevils justice City. ministration criminal New York New population York’s which density, is, factor noted by the Commission President’s on Law Enforce- ment and Justice, Administration The Challenge Society directly Crime a Free 285, (1967), associated with crime, Buffalo, is twice that of largest the second city in supplied by State. Statistics Office State Administrator of Judicial Conference of July, State of York show that: “From through New December, City York dis- New Criminal Court posed cases; of 321,368 nontraffic misdemeanor whereas largest city, Buffalo, City the next Court dis- posed of 8,189 nontraffic misdemeanor cases.” N. Y. 207, 2d 247 N. E. 2d Thus, New City’s York misdemeanor caseload is 39 times Buffalo’s although population only its times greater. After each today of such defendants New York is by jury. entitled to a trial some kind of a hardly It can be gainsaid jury requirement that a with the attendant time for jurors selection of and deliberation, even if not invoked all will defendants, delays increase calen- dars, depriving all prompt defendants of a trial. Im- pressive evidence suggests requirement could conceivably delays increase in New York City courts study as much as a factor of A eight. done of the admin- Municipal istration of the Court in Minneapolis shows requirement a trial in cases in- driving delays toxicated increased court there from three *48 to 24 Note, Right Jury months. to a Trial for Persons Accused of an Ordinance Violation, 47 L. Minn. Rev. 93 con- the Court
Notwithstanding this critical situation fraught procedure a requires cludes that the Constitution American Bar Association delay though the with even Jury, Justice, By Trial for Criminal Project on Standards City pro- three-judge the New York recognized has compromise jury trials as a measure where possible cedure permitted waived, and the further fact are in New one-half the defendants tried for misdemeanors City acquitted.16 York are
Ill a Today’s decisions demonstrate constitutional schizo- born the need phrenia cope diversity national incorporation under the constraints doctrine. prevailing opinion Baldwin overrides the considera- needs, tion of but Williams the out a local Court seeks disruption minimum to avoid in numer- causing standard though, prion, incorporation ous even a would instances surely require jury of six-man, a 12. The six-month rule today’s simply decisions reflects the lowest common scope denominator and function of trial jury country, every but the circumstance that jurisdiction except New York a City by jury has a punishable by offenses six in prison months obscures the variety of opinion actually proper exists place for the justice. administration of More analysis discriminating that four indicates besides States Florida felony authorize less than 12 try Legal Society City President Aid York New recently reported society’s clients who were tried 49% City (without jury) in the New York Criminal Court were acquitted; 3,023 trial, acquittals 2,678 there were convictions after after Speech trial. at annual Judicial Conference of the Second States, Placid, Sept. 14, Judicial Y., Circuit of the United Lake N. 1968, reprinted J., September 25, Y. L. 1968, p. in N. 4. *49 offenses17 and three authorize a nonunanimous States felony cases, at least verdict18 two other States provide jury a trial without in the first for instance cer- by tain punishable year offenses more than one with a appeal.19 provide to de novo trial on right Eight States juries try punishable for from five to to crimes ranging by year provided in prison, one and one State has for a by jury provide verdict nine in a of 12.20 Five States first a bench trial for from misdemeanors which the defendant de by procedure can seek a trial novo jury,21 a this Court, trial, incompatible a federal has deemed Sixth Amendment putting accused burden of two trials if he a jury wishes verdict. See Wilson, Callan v. (1888).22 S.U.
These varying provisions, reflecting differ- they do ing importance jury estimates of in securing feasibility a fair trial and such a administering procedure given the local circumstances, and the exten- sive study and debate about merits and demerits of jury system, demonstrate that the relevance and proper by role of administration of crim- yet justice inal far from sure. opinion, ante, See the Court’s at 99 45. n.
18 Appendix opinion. 19See ibid.
20See ibid. 21See ibid.
22“Except grade offences, in that class or petty offences called which, according law, may proceeded against common summarily guarantee . impartial . . of an to the accused prosecution, in a States, criminal conducted . . . . . . the United right enjoy secures to him the that mode of trial from the first moment, court, and-in put whatever he is on trial for the offence charged. To ... accord to the accused a to be tried jury, appellate court, in an fully after has he been once tried other jury, wise than original jurisdiction the court of . . . does satisfy requirements S., the Constitution.” 127 U. at 557. debate,23 on the door in Duncan closed “Incorporation” backlogs as the circumstances, such local irrespective City, has, New York like those of urban courts uncertainty the con- clouded with justification, without *50 proceed- stitutionality state modes differing of these by this approval Court; ing, Appendix, pending see ways meaning in other settled promises now to dilute Flexibility by jury. for ex- federal justice should be in the administration perimentation in other now here and areas that returned States “incorporation.” swept into the mold of rigid have been The “That I Chief Justice: ‘near-uni- agree is otherwise judgment form Nation’ than in parts some of its affords no basis judgment ... something not found read into Constitution there.” Baldwin, ante, The Opinion of Chief Justice at 77. I time, submit, up It this Court to face reality implicit today’s holdings and reconsider the “incorporation” doctrine its leveling before tendencies development further retard in the field of criminal by procedure flexibility in the stifling by States dis- possibility of federal carding leadership example. APPENDIX HARLAN, TO OPINION OF J. A. Felony-Type Nonunanimous Verdict For Offenses
1. Louisiana: Proc., La. Crim. Code., Art. 782. (Ver- dict nine 12 in necessarily punished out of cases labor.) hard Oregon:
2. Constitution, I, 11;§ Art. Ore. Rev. Stat. 136.330, (1967) (five §§ 136.610 out of six sufficient for in a capital verdict circuit court except cases). 23See, g., Zeisel, e. H. H. Jury Kalven & (1966); American Comment, Jury Should Verdicts Be Cases?, Unanimous in Criminal (1968). 47 Ore. L. Rev. 417 (1966) Texas: Proc.,
3. Tex. Code Crim. Art. 36.29 juror verdict less than 12 (permitting when incapacitated). Non-Jury By
B. Trial Cases Punishable More Than One De Imprisonment Year’s With Novo Review Maryland: 1. Arts. Constitution, Rights, Declaration of 5, 21; Code, 51, 18, (1968), Md. Ann. Art. Art. § § 66-1/2, §§48, 74, Art. 75, 216, (Supp. 325 (1967), §327 1969); Md. Rules (Trial by jury Proc. 758. appears not to be afforded motor vehicle cases first instance though even some motor vehicle offenses carry penalty up years5 imprisonment.) to five North Constitution, I, 2. Carolina: Art. State v. 13;§ Sherron, 4 C. App. 386, N. 166 S. E. 2d (1969); N. C. Gen. 7A-272 (a), §§ Stat. 7A-196 14-3 (b), *51 (District jurisdiction courts have to try, jury, without a all grade felony. offenses below the of Such offenses are petty denominated misdemeanors and the maximum sen may tence which imposed years5 be is a fine two or imprisonment.) Pennsylvania:
3. Constitution, (r) Sched. Art. 5, § (iii) (offenses municipal tried in the division of the court pleas of common carrying penalties up years5 to two im prisonment and indictable offenses under the motor ve punishment hicle for laws which does not exceed three years5 imprisonment). Jury
C. 6-Man For Misdemeanors 1. Alaska: Art. Constitution, I, 11;§ Alaska Stat. (1962), §§ 11.75.030 22.15.060, 22.15.150 (1967). (Jury of magistrate’s six district courts, juris- which have of diction misdemeanors, punishable by up year’s one imprisonment.) Georgia:
2. Constitution, Art. I, § 2-105, VI, Art. §2-5101; §27-2506 Ga. Code Ann. (Supp. 1968); Ga. (In county criminal pp. 935, 939, 942. 1890-1891,
Laws jurisdiction of misdemeanors —cases courts, have which up is a fine of imposable in which the maximum sentence up for a term of to 12 months imprisonment $1000 or Depend- may jury trial. or both —a defendant demand a from county, however, jury ranges a size upon the ing Atlanta, for- The Criminal Court persons. five In Hall juries misdemeanors five. example, tries County by juries 12.) tried same crimes are 602.15, Constitution, 1, 9;§ §§ Iowa: Art. Iowa Code
3. 602.39, (1966). (Jury municipal of six 602.25, 687.7 jurisdiction of misdemeanors, carrying have courts, which imprisonment year fine of or $500 a maximum one both.) or Kentucky: Constitution, 7, 11, 248; Ky. §§ Rev.
4. §§25.010, 26.400, (1963). 25.014, (Misde- 29.015 Stat. carrying $500 a maximum meanors, penalty imprisonment, months’ are tried in inferior courts courts, Circuit where six. a 12-member used, jurisdiction.) have concurrent Mississippi: Constitution,
5. 3, 31, 6, 171; § Art. § Art. Ann. §§ Miss. Code (Jurisdic- punishable tion of in the county jail may crimes tried justice peace courts jury. six-man Many one-year such crimes have a maximum term. Cir- jurisdiction. cuit have courts concurrent Such in- crimes clude, e. g., involving offenses corruption in elections 2031, 2032], §§ Code Ann. escape or escape [Miss. aiding *52 prisoners 2134, of [§§2133, 2135, 2141], public officers’ interest [§§2301, contracts 2302], and trade marks [§§2390, 2391].)
6. Oklahoma: Constitution, 2, 19, Art. 20; §§ Okla. Ann., 11, Stat. Tit. §§958.3, (Supp. 958.6 1969-1970), 21, (1958). Tit. (In 10§ misdemeanor cases—those in year’s which a sentence of up to one imprisonment may may record, courts of a defendant demand imposed —in jury may a 12; of nine members of render city of ordinances tried verdict. For violations courts five record, may jurors, not the defendant demand six of verdict.) may of whom render a Constitution, Oregon: I,Art. of §11; 7. Constitution VII, 12; (1965), §§ Ore. 5.110 § Art. Rev. Stat. 46.040, 46.175, (1967). (Jury county 46.180 six jurisdiction except all courts, which have crimes those penalty Jury death or life carrying imprisonment. courts, jurisdiction which have of all six district year’s misdemeanors, punishable one imprisonment.) Virginia: Constitution, I, 8; 8. Art. Va. Code Ann. § 16.1-124, 16.1-129, 16.1-123, 16.1-126, 16.1-132, §§ 16.1- (1960), (Supp. 1968), (1960). 18.1-6 18.1-9 19.1-206 (In jurisdiction courts which record, not have misde- year’s meanors, punishable up one imprisonment, jury. are tried charges without The defendant may appeal as of court, circuit where he receives de a trial novo. All trials circuit court offenses felonious, whether first on appeal, instance or jurors.) are with five Non-Jury For
D. Trial De Subject Misdemeanors
Novo Review Constitution, 1. Arkansas: 2, § Art. 10; Ark. Stat. 22-709, 22-737, §§ Ann. (1962), 41-106, 26-301 43-1901, 43-1902, 44-115, 44-116, 44-509 (1964); see generally Greenebaum, Judiciary: Arkansas’ History Its and Struc- ture, Ark. L. Rev. 152 (No jury provided in municipal courts, jurisdiction which have of misde- meanors carrying penalty a maximum year’s of one im- prisonment. Upon conviction, may defendant appeal to the circuit court where he is entitled to a trial de novo before a jury.) common-law
142 Rev. 6, 7; Me. Stat. I,Art. Constitution, §§ Maine:
2.
(1965) ;
15,
1,
Tit.
1970),
§§
(Supp.
4, Ann.,
§
Tit.
Andro
Sprague v.
(a);
(b),
Proc.
Rules Crim.
Me.
letter
(1908);
3. 77; (Supp. N. H. Rev. Ann. 599:1 pt. 2, § Art. Stat. v. 502-A:ll, 502-A:12, (1968); 502:18 State 1969), §§ (1966). 220 A. 2d Despres, 297, (District 107 N. H. municipal try, courts without a jury, misdemeanors term of carrying imprisonment year. a maximum of one The defendant these courts has an absolute right of appeal Superior may he Court where demand a novo.) 12 in de his trial Rhode
4.
Island: Constitution,
Art.
15;
§§
R. I.
12-3-1, 12-17-1,
Gen. Laws Ann.
12-22-1,
§§
12-22-9
Nolan,
State
(1956);
15 R. I. 529,
5. Art. I, §8; Va. Code Ann. 16.1-123, §§ 16.1-124, 16.1-126, 16.1-129, 16.1-132, 16.1-136, (1960), 18.1-6 18.1-9 (Supp. 1968). (Incourts record, jurisdiction not of which have of misdemeanors, punishable up year’s to one imprisonment, charges are *54 tried jury. may appeal without a The defendant as of court, circuit where he receives a de novo jurors). with five ante, in No. dissenting
Mr. Justice Stewart, p. 66, in concurring the result in No. 927. substantially separate
I opinion with the Mr. agree opinion has filed in these cases—an Harlan Justice fully a demonstrates some of the basic errors in mechanis- tic “incorporation” Amend- approach Fourteenth I opinion entirety, ment. cannot subscribe to his in its however, only if in part upon for the that it reason relies opinions certain dissenting previous and concurring I join. cases in which did not
The “incorporation” theory postulates the Bill of Rights as the substantive metes and the Four- bounds I theory teenth Amendment. think this is incorrect matter of history, a constitutional and that as a matter of constitutional law it is both stultifying and unsound. is, best, theory It only at can lead Court worst, Fourteenth And, Amendment dead end. spell theory’s compels logic of the either to Court impose upon intolerable restrictions the constitutional of the individual sovereignty States the administra- tion law, intolerably of their own criminal or else relax explicit actually restrictions the Framers put upon did the Federal Government in the administra- justice. tion of criminal this, more, All and much in Mr. separate elaborated opinion, Justice Harlan’s I and would affirm the judgments both No. for substantially
No. 927 he reasons states.1 Mr. Justice Harlan, join I opinion Like I of Part the Court’s 927, relating No. to the “alibi” issue. contemporary “incorporation” The architect course, is, Amendment to the Fourteenth approach California, Adamson Mr. Black. Justice sep- opinion).2 And the (dissenting U. S. today in has filed opinion my Brother arate Black ex- A to as Exhibit illustrate No. 927 could serve us into which some of traordinary thought habits of reflex to that erroneous con- in conditioned have fallen so has become “Incorporation” doctrine. stitutional barely Brother Black mentions my Pavlovian that an opin- 11-page Fourteenth Amendment the course *55 procedural rule the of Florida ion with the State dealing Flor- adopted tried in Florida courts under has for cases upon His relies opinion ida’s criminal laws.3 .instead “specific “plain meaning” and obvious of the words” “provisions the Fifth and Bill Amendment other of the Rights” which, together history surrounding with “the my understanding, 2 I have own had occasion to state elsewhere worth, origins for whatever it is motivational of Fourteenth “incorporation”: Amendment
“Shortly Court, before Justice came to the its Jackson some of junior comforting theory then more members had embraced impact upon Amendment’s substantive Fourteenth exactly specific states could be measured restrictions that eight the first imposed upon Amendments the National Govern- 'comforting’ because, ment. I theory, call this a for critics of the subjective approach process, theory old Court’s to due it was a appeared give objective the Fourteenth Amendment content and (Footnotes scope.” omitted.) Stewart, P. H. definable Robert Jackson’s on Relationships, Influence Federal-State in Mr. Justice Jackson, Four Lectures in His Honor 3 worthy A candidate for B separate nomination as Exhibit is the opinion today Alabama, ante, filed p. 14, Coleman Douglas. my Brother dealing procedure with the followed Alabama in law, my the administration of Alabama criminal Brother’s opinion advises us that "it Sixth Amendment that con , ,”,. trols And this statement is made the name of “strict construction of the Constitution”! adoption make clear provisions,” those that “[t]he rights
Framers . . those “to designed” . shield the de- fendant against power.” state I I
Though rhetoric, admire submit with all defer- ence that those statements are, quote author, their “plainly simply wrong and as matter of fact If law . . . the Constitution forbids Florida alibi- procedure, defense it is because of the Amend- Fourteenth ment, “specific not because of either the words” the Bill of or “the Rights history adop- their surrounding” For tion. as every schoolboy knows, the “de- Framers signed” the Bill of Rights not “state against power,” but against power of the Federal Government.4
Surely Mr. Justice Harlan says when he it is time for up the Court to face reality. *56 say agree This is not to I that would that the Fifth Amendment any provisions other Rights the Bill of would render un procedure constitutional a federal alibi similar to Florida’s. n.
supra.