So deeply engrained is the law's tradition of refusal to engage in after-the-fact review of jury deliberations, however, that these and other safeguards provide no more than limited protection. Proof beyond a reasonable doubt and unanimity of criminal verdicts and the presumption of innocence are basic features of the accusatorial system. Although we can fairly demand that jurors be neutral until they have begun to hear evidence, it would surpass our power to command that they remain unmoved by the evidence that unfolds before them. A similar assumption had, of course, been made with respect to the Seventh Amendment civil jury, but that issue did reach the Court.

H. Kalven and H. Zeisel, in their frequently cited study of American juries (The American Jury (Phoenix ed.1971)), note that, where unanimity is demanded, 5.6% of the cases result in hung juries. , and, consequently, it implied no total obliteration of state laws relating to arrests and searches in favor of federal law. . That has been the insistent message of this Court in a line of decisions extending over nearly a century. Davis v. United States, 160 U. S. 469, 160 U. S. 488 (1895). In Maxwell v. Dow, 176 U.S. at 176 U. S. 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 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 or themselves what shall be the form and character of the procedure in such trials, . MR. JUSTICE POWELL, concurring in No. .". The American Jury, supra, 406 U.S. 356fn3/3|>n. MR. JUSTICE BRENNAN, with whom MR JUSTICE MARSHALL joins, dissenting. Also representative of this historical approach to the Sixth Amendment are the exhaustive majority and dissenting opinions in Sparf v. United States, 156 U. S. 51 (1895), in which the Court ultimately concluded that federal criminal juries were empowered only to decide questions of "fact."

In order to "facilitate, expedite, and reduce expense in the administration of criminal justice," State v. Lewis, 129 La. ** See, for example, First Amendment, Gitlow v. New York, 268 U. S. 652 (1925); Cantwell v. Connecticut, 310 U. S. 296 (1940); Louisiana ex rel. That right, of course, is reserved for those crimes that may be deemed "serious."


WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACKMUN, POWELL, and REHNQUIST, JJ., joined. [Footnote 2/8] 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. [when it made] no impression upon the minds of so many, men, equally honest, equally intelligent with himself.". [Footnote 3/1] See Maxwell v. Dow, 176 U. S. 581, 176 U. S. 586; Patton v. United States, 281 U. S. 276, 281 U. S. 288; Andres v. United States, 333 U. S. 740, 333 U. S. 748. Cf. American Bar Association, Project on Standards for Criminal Justice, Trial By Jury § 1.1 (Approved Draft 1968) (see also commentary, at 25-28). . 406 U. S. 363-365. Or are today's decisions limited to a paring down of civil rights protected by the Bill of Rights and, up until now, as fully applicable to the States a to the Federal Government? Is not there still a lingering doubt about that verdict? .

The U.S. Supreme Court, however, held that a "split-verdict" system was constitutionally "inoffensive" and reasoned that less-than-unanimous jury verdicts did not deprive defendants in criminal prosecutions of their rights under the due process of law. Emotions may run high at criminal trials.

69-5046. And, indeed, when such a case finally arose, we had little difficulty disposing of the issue. After all, it has long, been explicit constitutional doctrine that the Seventh Amendment civil jury must be unanimous.

Under today's judgment, nine jurors can simply ignore the views of their fellow panel members of a different race or class. Only a jury so selected can assure both a fair criminal trial, see id. A recent example of that process of constitutional adjudication may be found in Part II of the Court's opinion in Duncan v. Louisiana, 391 U.S. at 391 U. S. 159-162, in which "petty" offenses were excluded from the rule requiring jury trial because such "offenses were tried without juries both in England and in the Colonies." We remain unconvinced by anything appellant has presented that this legislative judgment was defective in any constitutional sense. What may appear to one to imply guilt may carry no such overtones to another. The reasonable doubt rule, properly viewed, simply establishes that, as a prerequisite to obtaining a valid conviction, the prosecutor must overcome all of the jury's reasonable doubts; it does not, of itself, determine what shall happen if he fails to do so. See Strauder v. West Virginia, supra, at 100 U. S. 309.

at 397 U. S. 363. In these latter cases, the majorities favor the prosecution 44% (of the 56%) but the defendant only 12% (of the 56%).
Williams requires that the change be neither more nor less advantageous to either the State or the defendant. Until the Constitution is rewritten, we have the present one to support and construe. 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. The dissenting justices considered Louisiana law an inadmissible departure from the principles of unanimity that had been constitutionally recognized. Andres v. United States, 333 U. S. 740, 333 U. S. 748-749 (1948); Patton v. United States, 281 U. S. 276, 281 U. S. 288-290 (1930); Hawaii, v. Mankichi, 190 U. S. 197, 190 U. S. 211-212 (1903) (see also Mr. Justice Harlan's dissenting opinion); Maxwell v. Dow, 176 U. S. 581, 176 U. S. 586 (1900) (see also Mr. Justice Harlan's dissenting opinion); Thompson v. Utah, 170 U. S. 343, 170 U. S. 355 (1898).

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.

He said jury trial procedure was not debased by "less-than-unanimous" jury provision and that innovations in jury trial procedure should not be considered unconstitutional especially if the law "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 Criminal Procedure." On appeal to the Supreme Court of Louisiana, Johnson challenged provisions of the Louisiana statute that permitted less-than-unanimous jury verdicts to convict. Klopfer v. North Carolina, 386 U. S. 213, 386 U. S. 222. As to the crimes triable by a five-man jury, if appellant's. in this case is whether these provisions allowing less than unanimous verdicts in certain cases are valid under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. We noted probable jurisdiction.

at 367 U. S. 656.


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