Ballew v. Georgia

The Court's opinion was unanimous, though several of the justices filed concurring opinions in which they cited aspects other than those raised by Justice Blackmun, who wrote for the Court. The petitioner had the right to a trial by jury, Blackmun wrote, a right guaranteed under the Sixth Amendment and reinforced by the Fourteenth. The right to trial by jury is further bolstered by the Court's ruling in Duncan v. Louisiana (1968), when it found that "trial by jury in criminal cases is fundamental to the American scheme of justice." Because the maximum penalty for violating Georgia 26-2101 carried with it a sentence of more than six month's imprisonment, Ballew's could not be considered a "petty" crime--that is, a crime for which it might be reasonably said a jury was not required. In Williams, the Court had reflected on its Duncan opinion to note that trial by a jury of peers protects a defendant from "oppression by the Government."

As for the size of the jury, the Court in Williams found that the number 12 was a "historical accident, unrelated to the great purposes which gave rise to the jury in the first place." The Sixth Amendment did not require 12 jurors but, in Blackmun's words, "a jury only of sufficient size to promote group deliberation, to insulate members from outside intimidation, and to provide a representative cross-section of the community." The Court in Williams reserved judgment on whether a jury smaller than six members is unconstitutional. However, a number of legal scholars, spurred on by the questions raised in that case, conducted research on the subject. Blackmun turned to those sources to address a number of concerns.

The practice of consulting social-science evidence had long been controversial in the Court, starting with the presentation of a psychological paper as evidence in Brown v. Board of Education (1954). Still controversial when Blackmun applied it in Ballew, he would be subjected to criticism, both from his brethren on the Court and from others.

Using a variety of studies, including Jury Verdicts (1977) by Michael J. Saks, a 1975 Michigan Law Review article by Richard Owen Lempert, and scores of other sources, Blackmun made five points regarding jury size. First, the data showed that larger juries were more likely to spend a longer amount of time deliberating on a case. Larger juries' collective memory of the facts was better when it had more heads to remember all the information and a smaller jury was less able to overcome the biases of its various members. Second, he cited a number of studies which showed small juries as more likely to convict an innocent person (Type I error) whereas larger juries were more likely to let off a guilty one (Type II). These facts suggested to many researchers that the optimal jury would consist of six to eight persons. Third, the evidence seemed to show that the smaller the jury, the more likely it was to rule against the defense. Fourth, smaller juries were less likely to represent minority groups: statistically, if a group constituted ten percent of the community, fifty-three percent of randomly selected six-member juries would have no members of that group, and eighty-nine percent would have no more than one. Fifth, the errors attributed to small juries, when multiplied throughout the nation as they would be if such juries became a widespread practice, would result in large numbers of incorrect judgments.

Blackmun then turned to the arguments Georgia used in its favor. First, its interpretation of Johnson v. Louisiana (1968) as establishing the Court's approval of five-person juries was "misplaced" because the Court did not consider the issue of five-person juries in that case. Second, Georgia's argument that five-member juries were sufficient to hear misdemeanor cases, if not felony trials, was invalidated by the Court's ruling in Baldwin v. New York (1970) that the right to trial by jury was just as strong in the case of misdemeanor as of felony. Third, Georgia's requirement that its five-member panel reach a unanimous decision did not address the issues of "meaningful deliberation," the jury's memory, or its ability to represent the community as a whole. Fourth, it was not enough to claim, as Georgia did, that the five-member jury represented the community simply because there was no overt effort to exclude a minority opinion or ethnic group: given the data cited earlier, it was easy to see that such exclusion could happen inadvertently. Fifth and finally, Georgia also had attempted to use empirical data, citing two studies presented in the University of Michigan Journal of Law Reform, but Blackmun questioned those particular studies, as well as the state's interpretation of these and other sources.

Blackmun devoted the remainder of the Court's opinion to Georgia's claim that a smaller jury saved it time and money. Though six members cost the state less money than 12, in that it had to pay jurors a daily stipend, the evidence did not show that six members saved any time in the selection process. In any case, the difference in savings for five-member juries, as opposed to juries composed of six people, were bound to be minuscule.