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Duncan v. Louisiana, 391 U.S. 145 (1968)
Duncan v. Louisiana, 391 U.S. 145 (1968)
Duncan v. Louisiana, 391 U.S. 145 (1968)
Syllabus.
DUNCAN v. LOUISIANA.
APPEAL FROM THE SUPREME COURT OF LOUISrANA.
298-002 0 - 69 - 13
OCTOBER TERM, 1967.
Opinion of the Court. 391 U.S.
the right to jury trial, States will be obligated to comply with all
past interpretations of the Sixth Amendment, an amendment which
in its inception was designed to control only the federal courts and
which throughout its history has operated in this limited environ-
ment where uniformity is a more obvious and immediate considera-
tion. In particular, Louisiana objects to application of the decisions
of this Court interpreting the Sixth Amendment as guaranteeing a
12-man jury in serious criminal cases, Thompson v. Utah, 170 U. S.
343 (1898); as requiring a unanimous verdict before guilt can be
found, Maxwell v. Dow, 176 U. S. 581, 586 (1900); and as barring
procedures by which crimes subject to the Sixth Amendment jury
trial provision are tried in the first instance without a jury but at
the first appellate stage by de novo trial with a. jury, Callan v.
Wilson, 127 U. S. 540, 557 (1888). It seems very unlikely to
us that our decision today will require widespread changes in state
criminal processes. First, our decisions interpreting the Sixth
Amendment are always subject to reconsideration, a fact amply
demonstrated by the instant decision. In addition, most of the
DUNCAN v. LOUISIANA.
145 Opinion of the Court.
II.
Louisiana's final contention is that even if it must
grant jury trials in serious criminal cases, the conviction
before us is valid and constitutional because here the peti-
tioner was tried for simple battery and was sentenced to
only 60 days in the parish prison. We are not persuaded.
It is doubtless true that there is a category of petty
crimes or offenses which is not subject to the Sixth
Amendment jury trial provision s' and should not be
subject to the Fourteenth Amendment jury trial require-
ment hiere applied to the States. Crimes carrying pos-
sible penalties up to six months do not require a jury
trial if they otherwise qualify as petty offenses, Cheff v.
Schnackenberg, 384 U. S.373 (1966). But the penalty
authorized for a particular crime is of major relevance in
determining whether it is serious or not and may in
itself, if severe enough, subject the trial to the mandates
of the Sixth Amendment. District of Columbia .v.
States have provisions for jury trials equal in breadth to the Sixth
Amendment, if that amendment is construed, as it has been, to
permit the trial of petty crimes and offenses without a jury. In-
deed, there appear to be only four States in which juries of fewer
than 12 can be used without the defendant's consent for offenses
carrying a maximum penalty of greater than one year. Only in
Oregon and Louisiana can a less-than-unanimous jury convict for
an offense with a maximum penalty greater than one year. How-
ever 10 States authorize first-stage trials without juries for crimes
carrying lengthy penalties; these States give a convicted defendant
the right to a de novo trial before a jury in a different court. The
statutory provisions are listed in the briefs filed in this case.
31 Cheff v. Schnackenberg, 384 U. S. 373 (1966); District of
Columbia v. Clawans, 300 U. S. 617 (1937); Schick v. 'United
States; 195 U. S. 65 (1904); Natal v. Louisiana, 139 U. S. 621
(1891); see Callan v. Wilson, 127 U. S. 540 (1888). See generally
Frankfurter & Corcoran, Petty Federal Offenses and the Constitu-
tional Guaranty of Trial by Jury, 39-Harv. L. Rev. 917 (1926);
Kaye, Petty Offenders Have No Peers!, 26 U. Chi. L. Rev. 245
(1959).
OCTOBER TERM, 1967.
Opinion of the Court. 391 U. S.
fact that the great words of the four clauses of the first section
of the Fourteenth Amendment would have been an exceedingly
peculiar way to say that "The rights heretofore guaranteed against
federal intrusion by the first eight Amendments are henceforth guar-
anteed against state intrusion as well." He therefore sifted the
mountain of material comprising the debates and committee reports
relating to the Amendment in both Houses of Congress and in the
state legislatures that passed upon it. He found that in the immense
corpus of comments on the purpose and effects of the proposed
amendment, and on its virtues and defects, there is almost no evi-
dence whatever for "incorporation." The first eight Amendments
are so much as mentioned by only two members of Congress, one
of whom effectively demonstrated (a) that he did not understand
Barron v. Baltimore, 7 Pet. 243, and therefore did not understand
the question of incorporation, and (b) that he was not himself
understood by his colleagues. One state legislative committee
report, rejected by the legislature as a whole, found § 1 of the
Fourteenth Amendment superfluous because it duplicated the Bill
of Rights: the committee obviously did not understand Barton
v. Baltimore either. That is all Professor Fairman could find, in
hundreds of pages of legislative discussion prior to passage of the
Amendment, that even suggests incorporation.
To this negative evidence the judicial history of the Amendment
could be added. For example, it proved possible for a Court whose
members had lived through Reconstruction to reiterate the doctrine
of Barron v. Baltimore, that the Bill of Rights did not apply to the
States, without so much as questioning whether the Fourteenth
Amendment had any effect on the continued validity of that prin-
ciple. E. g., Walker v. Sauvinet, 92 U. S. 90; see generally Morrison,
Does the Fourteenth Amendment Incorporate the Bill of Rights?
The Judicial Interpretation, 2 Stan. L. Rev. 140 (1949).
OCTOBER TERM, 1967.
HARLAN, J., dissenting. 391 U. S.
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OCTOBER TERM, 1967.
HARLAN, J., dissenting. - 391 U.S.
"Life was simple when the jury system was young, but with the
steadily growing complexity of society and social practices, the
facts which enter into legal controversies have become much more
complex."
8Compare Green, Jury Injustice, 20 Jurid. Rev. 132, 133.
38 Cf. Lummus, Civil Juries and the Law's Delay, 12 B. U. L.
Rev. 487.
DUNCAN v. LOUISIANA.
145 HARLAN, J., dissenting.
44 37 Hen. 8, c. 7.
45 Frankfurter & Corcoran, Petty Federal Offenses and the Con-
stitutional Guaranty of Trial by Jury, 39. Harv. L. Rev. 917, 928.
The source of the authors' information is R. Burn, Justice of the
Peace (1776).
48 Frankfurter & Corcoran, supra, at 930-934.
.7See, id., at 938-942.
OCTOBER TERM, 1967.
HARLAN, J., dissenting. 391 U. S.
48 Ibid.
49 Frankfurter & Corcoran; supra, at 945. They refer to the
Vagrancy Act of 1721, 2 Col. L. (N. Y.) 56.
50 Frankfurter & Corcoran, supra, at 945.
51 The example is taken from Day, Petty Magistrates' Courts in
Connecticut, 17 J. Crim. L. C. & P. S., 343, 346-347, cited in Kalven
& Zeisel, supra, at 17. The point is that the "huge proportion" of
criminal charges for which jury trial has not been available in Amer-
ica, E. Puttkammer, Administration of Criminal Law 87-88, is
increased by the judicious action of weary prosecutors.
DUNCAN v. LOUISIANA.
145 HARLAN, J., dissenting.