Johnson v. Louisiana/Concurrence Powell

[p366] MR. JUSTICE POWELL, concurring in No. 69-5035 and concurring in the judgment in No. 69-5046.

I concur in the judgment of the Court that convictions based on less-than-unanimous jury verdicts in these cases did not deprive criminal defendants of due process of law under the Fourteenth Amendment. As my reasons for reaching this conclusion in the Oregon case differ from those expressed in the plurality opinion of MR. JUSTICE WHITE, I will state my views separately.

I. 69-5035.
Duncan v. Louisiana, 391 U.S. 145 (1968), stands for the proposition that criminal defendants in state courts are entitled to trial by jury. The source of that right is the Due Process Clause of the Fourteenth Amendment. Due process, as consistently interpreted by this Court, commands that citizens subjected to criminal [p367] process in state courts be accorded those rights that are fundamental to a fair trial in the context of our "American scheme of justice." Id., at 149. The right of an accused person to trial by a jury of his peers was a cherished element of the English common law long before the American Revolution. In this country, prior to Duncan, every state had adopted a criminal adjudicatory process calling for the extensive use of petit juries. Id., at 150 n. 14; Turner v. Louisiana, 379 U.S. 466, 471 n. 9 (1965). Because it assures the interposition of an impartial assessment of one's peers between the defendant and his accusers, the right to trial by jury deservedly ranks as a fundamental of our system of jurisprudence. With this principle of due process, I am in full accord.

In DeStefano v. Woods, 392 U.S. 631 (1968), an Oregon petitioner sought to raise the question, left open in Duncan, whether the right to a jury in a state court also contemplates the right to a unanimous verdict. Because the Court concluded that Duncan was not to have retroactive applicability, it found it unnecessary to decide whether the Fourteenth Amendment requires unanimity. The trial in this case before the Court at that time occurred several years prior to May 20, 1968, the date of decision in Duncan. In the Louisiana case now before us, the petitioner also was convicted by a less-than-unanimous verdict before Duncan was decided. Accordingly, I read DeStefano as foreclosing consideration in this case of the question whether jury trial as guaranteed by the Due Process Clause contemplates a corollary requirement that its judgment be unanimous.

Indeed, in Johnson v. Louisiana, appellant concedes that the nonretroactivity of Duncan prevents him from raising his due process argument in the classic "fundamental fairness" language adopted there. Instead he [p368] claims that he is deprived of due process because a conviction in which only nine of 12 jurors joined is not one premised on a finding of guilt beyond a reasonable doubt, held to be a requisite element of due process in In re Winship, 397 U.S. 358, 364 (1970). For the reasons stated in the majority opinion, I do not agree that Louisiana's less-than-unanimous verdict rule undercuts the applicable standard of proof in criminal prosecutions in that State.

Appellant also asks this Court to find a violation of the Equal Protection Clause in Louisiana's constitutional and statutory provisions establishing the contours of the jury trial right in that State. The challenged provisions divide those accused of crimes into three categories depending on the severity of the possible punishment: those charged with offenses for which the punishment might at hard labor are entitled to a five-juror, unanimous verdict; those charged with offenses for which the punishment will necessarily be at hard labor are entitled to a verdict in which nine of 12 jurors must concur; and those charged with capital offenses are entitled to a 12-juror, unanimous verdict. La. Const., Art. VII, § 41; La. Code Crim. Proc., Art. 782. Such distinctions between classes of defendants do not constitute invidious discrimination against any one of the classes unless the State's classification can be said to lack a reasonable or rational basis. We have been shown no reason to question the rationality of Louisiana's tri-level system. I, therefore, join the Court's opinion in Johnson v. Louisiana affirming the decision below.

II. 69-5046.
[p369] In the Oregon case decided today, Apodaca v. Oregon, the trials occurred after Duncan was decided. The question left unanswered in Duncan and DeStefano is therefore squarely presented. I concur in the plurality opinion in this case insofar as it concludes that a defendant in a state court may constitutionally be convicted by less than a unanimous verdict, but I am not in accord with a major premise upon which that judgment is based. Its premise is that the concept of jury trial, as applicable to the States under the Fourteenth Amendment, must be identical in every detail to the concept required in federal courts by the Sixth Amendment. I do not think that all of the elements of jury trial within the meaning of the Sixth Amendment are necessarily embodied in or incorporated into the Due Process Clause of the Fourteenth Amendment. As Mr. Justice Fortas, concurring in Duncan v. Louisiana, 391 U.S., at 213, said:

"'Neither logic nor history nor the intent of the draftsmen of the Fourteenth Amendment can possibly be said to require that the Sixth Amendment or its jury trial provision be applied to the States together with the total gloss that this Court's decisions have supplied.'"

In an unbroken line of cases reaching back into the late 1800's, the Justices of this Court have recognized, virtually without dissent, that unanimity is one of the indispensable features of federal jury trial. Andres v. United States, 333 U.S. 740, 784-749 (1948); Patton v. United States, 281 U.S. 276, 288-290 (1930); Hawaii [p370] v. Mankichi, 190 U.S. 197, 211-212 (1903) (see also Mr. Justice Harlan's dissenting opinion); Maxwell v. Dow, 176 U.S. 581, 586 (1900) (see also Mr. Justice Harlan's dissenting opinion); Thompson v. Utah, 170 U.S. 343, 355 (1898). In these cases, the Court has presumed that unanimous verdicts are essential in federal jury trials, not because unanimity is necessarily fundamental to the function performed by the jury, but because that result is mandated by history. The reasoning that [p370] runs throughout this Court's Sixth Amendment precedents is that, in amending the Constitution to guarantee the right to jury trial, the framers desired to preserve the jury safeguard as it was known to them at common law. At the time the Bill of Rights was adopted, unanimity had long been established as one of the attributes of a jury conviction at common law. It therefore seems to me, in accord both with history and precedent, that the Sixth Amendment requires a unanimous jury verdict to convict in a federal criminal trial.

But it is the Fourteenth Amendment, rather than the Sixth, that imposes upon the States the requirement that they provide jury trials to those accused of serious crimes. This Court has said, in cases decided when the intendment of that Amendment was not as clouded by the passage of time, that due process does not require that the States apply the federal jury-trial right with all its gloss. In Maxwell v. Dow, 176 U.S., at 605, Mr. Justice Peckham, speaking for eight of the nine members of the Court, so stated:

"'[W]hen providing in their constitution and legislation for the manner in which civil or criminal [p372] actions shall be tried, it is in entire conformity with the character of the Federal Government that [the States] should have the right to decide for themselves what shall be the form and character of the procedure in such trials,... whether there shall be a jury of twelve or a lesser number, and whether the verdict must be unanimous or not....'"

Again, in Jordan v. Massachusetts, 225 U.S. 167, 176 (1912), the Court concluded that "[i]n criminal cases due process of law is not denied by a state law which dispenses with...the necessity of a jury of twelve, or unanimity in the verdict."

It is true, of course, that the Maxwell and Jordan Courts went further and concluded that the States might dispense with jury trial altogether. That conclusion, grounded on a more limited view of due process than has been accepted by this Court in recent years, was rejected by the Court in Duncan. But I find nothing in the constitutional principle upon which Duncan is based, or in other precedents, that requires repudiation of the views expressed in Maxwell and Jordan with respect to the size of a jury and the unanimity of its verdict. Mr. Justice Fortas, concurring in Duncan, commented on the distinction between the requirements of the Sixth Amendment [p373] and those of the Due Process Clause and suggested the appropriate framework for analysis of the issue in this case.

"'I see no reason whatever... to assume that our decision today should require us to impose federal requirements such as unanimous verdicts or a jury of 12 upon the States. We may well conclude that these and other features of federal jury practice are by no means fundamental–that they are not essential to due process of law–and that they are not obligatory on the States.' Duncan v. Louisiana, 391 U.S., at 213."

The question, therefore, that should be addressed in this case is whether unanimity is in fact so fundamental to the essentials of jury trial that this particular requirement of the Sixth Amendment is necessarily binding on the Stats under the Due Process Clause of the Fourteenth Amendment. An affirmative answer, ignoring the strong views previously expressed to the contrary by this Court in Maxwell and Jordan, would give unwarranted and unwise scope to the incorporation doctrine as it applies to the due process right of state criminal defendants to trial by jury.

The importance that our system attaches to trial by jury derives from the special confidence we repose in a "body of one's peers to determine guilt or innocence as a safeguard against arbitrary law enforcement." Williams v. Florida, 399 U.S. 78, 87 (1970). It is this safeguarding function, preferring the commonsense judgment of a jury as a bulwark "against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge," that lies at the core of our dedication to the principles of jury determination of guilt or [p374] innocence. This is the fundamental of jury trial that brings it within the mandate of due process. It seems to me that this fundamental is adequately preserved by the jury-verdict provision of the Oregon Constitution. There is no reason to believe, on the basis of experience in Oregon or elsewhere, that a unanimous decision of 12 jurors is more likely to serve the high purpose of jury trial, or is entitled to greater respect in the community, than the same decision joined in by 10 members of a jury of 12. The standard of due process assured by the Oregon Constitution provides a sufficient guarantee that the government will not be permitted to impose its judgment on an accused without first meeting the full burden of its prosecutorial duty.

[p375] Moreover, in holding that the Fourteenth Amendment has incorporated "jot-for-jot and case-for-case" every element of the Sixth Amendment, the Court derogates principles of federalism that are basic to our system. In the name of uniform application of high standards of due process, the Court has embarked upon a course of constitutional interpretation that deprives the States of freedom to experiment with adjudicatory processes different from the federal model. At the same time, the Court's understandable unwillingness to impose requirements that it finds unnecessarily rigid (e.g., Williams v. Florida, 399 U.S. 78), has culminated in the dilution of federal rights that were, until these decisions, never seriously questioned. The doubly undesirable consequence of this reasoning process, labeled by Mr. Justice Harlan as "constitutional schizophrenia," id., at 136, may well be detrimental both to the state and federal criminal justice systems. Although it is perhaps late in the day for an expression of my views, I would have been in accord with the opinions in similar cases by THE CHIEF JUSTICE and Justices HARLAN, STEWART, and Fortas that, at least in defining the elements of the right to jury trial, there is no sound basis for interpreting the Fourteenth Amendment to require blind adherence by the States to all details of the federal Sixth Amendment standards.

[p376] While the Civil War Amendments altered substantially the balance of federalism, it strains credulity to believe that they were intended to deprive the States of all freedom to experiment with variations in jury-trial procedure. In an age in which empirical study is increasingly relied upon as a foundation for decisionmaking, one of the more obvious merits of our federal system is the opportunity it affords each State, if its people so choose, to become a "laboratory" and to experiment with a range of trial and procedural alternatives. Although the need for the innovations that grow out of diversity has always been great, imagination unimpeded by unwarranted demands for national uniformity is of special importance at a time when serious doubt exists as to the adequacy of our criminal justice system. The same diversity of local legislative responsiveness that marked the development of economic and social reforms in this country, if not barred by an unduly restrictive application of the Due Process Clause, might well lead to valuable innovations with respect to determining–fairly and more expeditiously–the guilt or innocence of the accused.

Viewing the unanimity controversy as one requiring a fresh look at the question of what is fundamental in jury trial, I see no constitutional infirmity in the provision adopted by the people of Oregon. It is the product of a constitutional amendment, approved by a vote of the people in the State, and appears to be patterned on a provision of the American Law Institute's Code of [p377] Criminal Procedure. A similar decision has been echoed more recently in England where the unanimity requirement was abandoned by statutory enactment. Less-than-unanimous verdict provisions also have been viewed with approval by the American Bar Association's Criminal Justice Project. Those who have studied the jury mechanism and recommended deviation from the historic rule of unanimity have found a number of considerations to be significant. Removal of the unanimity requirement could well minimize the potential for hung juries occasioned either by bribery or juror irrationality. Furthermore, the rule that juries must speak with a single voice often leads, not to full agreement among the 12 but to agreement by none and compromise by all, despite the frequent absence of a rational basis for such compromise. Quite apart from whether Justices sitting on this Court would have deemed advisable the adoption of any particular less-than-unanimous jury provision, I think that considerations of this kind reflect a legitimate basis for experimentation and deviation from the federal blueprint.

III
[p378] Petitioners in Apodaca v. Oregon, in addition to their primary contention that unanimity is a requirement of state jury trials because the Fourteenth Amendment "incorporates" the Sixth, also assert that Oregon's constitutional provision offends the federal constitutional guarantee against the systematic exclusion of any group within the citizenry from participating in the criminal trial process. While the systematic exclusion of identifiable minorities from jury service has long been recognized as a violation of the Equal Protection Clause (see, e.g., Whitus v. Georgia, 385 U.S. 545 (1967); Strauder v. West Virginia, 100 U.S. 303 (1880)), in more recent years the Court has held that criminal defendants are entitled, as a matter of due process, to a jury drawn from a representative cross section of the community. This is an essential element of a fair and impartial jury trial. See Williams v. Florida, 399 U.S., at 100; Alexander v. Louisiana, 405 U.S. 625, 634 (1972) (DOUGLAS, J., concurring). Petitioners contend that less-than-unanimous jury verdict provisions undercut that right by implicitly permitting in the jury room that which is prohibited in the jury venire selection process–the exclusion of minority group viewpoints. They argue that unless unanimity is required even of a properly drawn jury, the result–whether conviction or acquittal–may be the unjust product of racism, bigotry, or an emotionally inflamed trial.

Such fears materialize only when the jury's majority, responding to those extraneous pressures, ignores the evidence and the instructions of the court as well as the [p379] rational arguments of the minority. The risk, however, that a jury in a particular case will fail to meet its high responsibility is inherent in any system that commits decisions of guilt or innocence to untrained laymen drawn at random from the community. In part, at least, the majority-verdict rule must rely on the same principle that underlies our historic dedication to jury trial: both systems are premised on the conviction that each juror will faithfully perform his assigned duty. MR. JUSTICE DOUGLAS' dissent today appears to rest on the contrary assumption that the members of the jury constituting the majority have no duty to consider the minority's viewpoint in the course of deliberation. Characterizing the jury's consideration of minority views as mere "polite and academic conversation," or "courtesy dialogue," he concludes that a jury is under no obligation in Oregon to deliberate at all if 10 jurors vote together at the outset. Post, at 389. No such power freely to shut off competing views is implied in the record in this case and it is contrary to basic principles of jury participation in the criminal process. While there may be, of course, reasonable differences of opinion as to the merit of the speculative concerns expressed by these petitioners and reflected in the dissenting opinion, I find nothing in Oregon's experience to justify the apprehension that juries not bound by the unanimity rule will be more likely to ignore their historic responsibility.

Moreover, the States need not rely on the presumption of regularity in a vacuum since each has at its disposal protective devices to diminish significantly the prospect of jury irresponsibility. Even before the jury is sworn, substantial protection against the selection of a representative but willfully irresponsible jury is assured by the wide availability of peremptory challenges and challenges for cause. The likelihood of miscarriage of justice is [p380] further diminished by the judge's use of full jury instructions, detailing the applicable burdens of proof, informing the jurors of their duty to weigh the views of fellow jurors, and reminding them of the solemn responsibility imposed by their oaths. Trial judges also retain the power to direct acquittals in cases in which the evidence of guilt is lacking, or to set aside verdicts once rendered when the evidence is insufficient to support a conviction. Furthermore, in cases in which public emotion runs high or pretrial publicity threatens a fair trial, judges possess broad power to grant changes of venue, and to impose restrictions on the extent of press coverage.

In light of such protections it is unlikely that the Oregon "ten-of-twelve" rule will account for an increase in the number of cases in which injustice will be occasioned by a biased or prejudiced jury. It may be wise to recall MR. JUSTICE WHITE's admonition in Murphy v. Waterfront Comm'n, 378 U.S. 52, 102 (1964), that the Constitution "protects against real dangers, not remote and speculative possibilities." Since I do not view Oregon's less-than-unanimous jury verdict requirement as violative of the due process guarantee of the Fourteenth Amendment, I concur in the Court's affirmance of these convictions.