[ Surely if the principle of stare decisis means anything in the law, it means that precedent should not be jettisoned when the rule of yesterday remains viable, creates no injustice, and can reasonably be said to be no less sound than the rule sponsored by those who seek the Senate are not available, [Footnote 38] a letter from Madison to Edmund Pendleton on September 14, 1789, indicates that one of the Senate's major objections was to the "vicinage" requirement in the House version. Indeed, it is these considerations that move me to depart today from the framework of Duncan. The theory advanced goes at least so far as to permit the State to obtain, under threat of sanction, complete disclosure by the defendant in advance of trial of all evidence, testimony, and tactics he plans to use at that trial.
To be sure, the number should probably be large enough to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility for obtaining a representative cross-section of the community. "These combination juries numbered from twenty-four to eighty-four jurors, and the number became embarrassingly large and unwieldy, and the sense of the personal responsibility of each juror was in danger of being lost." We do not, of course, decide that each of these alibi notice provisions is necessarily valid in all respects; that conclusion must await a specific context and an inquiry, for example, into whether the defendant enjoys reciprocal discovery against the State.
113, 11 L.Ed.2d 80 (1963); State v. Baldwin, 47 N.J. 379, 221 A.2d 199, cert. 1968); Ga.
U.S. 78, 99]
I adhere to the holding of Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. "Incorporation" has become so Pavlovian that my Brother BLACK barely mentions the Fourteenth Amendment in the course of an 11-page opinion dealing with the procedural rule the State of Florida has adopted for cases tried in Florida courts under Florida's criminal laws. [Footnote 8], We need not linger over the suggestion that the discovery permitted the State against petitioner in this case deprived him of "due process" or a "fair trial."
354 (1956).
234
Not less than five days after receipt of defendant's witness list, or such other times as the court may direct, the prosecuting attorney shall file and serve upon the defendant the names and addresses (as particularly as are known to the prosecuting attorney) of the witnesses the State proposes to offer in rebuttal to discredit the defendant's alibi at the trial of the cause. (1898), where the Court was called upon to define the term "citizen" as used in the Constitution.
1444, 20 L.Ed.2d 491 (1968), we held that the Fourteenth Amendment guarantees a right to trial by jury in all criminal cases that were they to be tried in a federal court—would come within the Sixth Amendment's guarantee.
See Patton v. United States, 281 U. S. 276, 281 U. S. 288 (1930), where. And the "vicinage" requirement itself had been replaced by wording that reflected a compromise between broad and narrow definitions of that term, and that left Congress the power to determine the actual size of the "vicinage" by its creation of judicial districts. 1061 (1898).
Lord Coke's explanation that the "number of twelve is much respected in holy writ, as 12 apostles, 12 stones, 12 tribes, etc.," 2 The Criminal Court of Atlanta, for example, tries misdemeanors with juries of five.
Although I have disagreed with particular holdings like Gilbert v. California, supra, where the Court held that the History does indicate that persons well familiar with the dangers of arbitrary and oppressive use of the criminal process were determined to limit such dangers for the protection of each and every inhabitant of this country. It might so happen that a trial would be impracticable in the county. I see it, the most compelling reason for maintaining that guarantee in its common law form. ", 1 Journals of the Continental Congress 69 (C. Ford ed.1904) (emphasis added).
[ 176 518, 523, 24 L.Ed.2d 549 (1970), the concern that the cross-section will be significantly diminished if the jury is decreased in size from 12 to six seems an unrealistic one. Footnote 10 Indeed this number finally came to be regarded with something like superstitious reverence.'
77-22-17 (1953); Vt. Stat. Footnote 36 U.S. 78, 91] [ For if exceptions are to be created out of the all-embracing language of the Sixth Amendment they should only be those that are anchored in history. ), 2. Pennsylvania: Constitution, Sched. . I, § 13; State v. Sherron, 4 N.C.App. After today each of such defendants in New York is entitled to a trial by some kind of a jury.
228 (1964); Comment, The Self-Incrimination Privilege: Barrier to Criminal Discovery?, 51 Calif. L. Rev. U.S., at 11
U.S. 540, 552
Clearly the pressures on defendants to plead an alibi created by this procedure are not only quite different from the pressures operating at the trial itself, but are in fact significantly greater.
But there is absolutely no indication in "the intent of the Framers" of an explicit decision to equate the constitutional and common-law characteristics of the jury. 1st Cir. 16 P. Devlin, Trial by Jury 8 (1956); F. Heller, The Sixth Amendment 64 (1951); W. Willoughby, Principles of Judicial Administration 503 (1929); Tamm, The Five-Man Civil Jury: A Proposed Constitutional Amendment, 51 Geo.L.J. It is, in part, the disregard of stare decisis in circumstances where it should apply, to which the Court is, of necessity, driven in Williams by the "incorporation" doctrine, that leads me to decline to follow Duncan.
), 2. Occasionally this test emerges in disguise as an intellectually satisfying "distinction" or "analogy" designed to cover up a decision based on the wisdom of a proposed procedure, rather than its conformity with the commands of the Constitution. Mr. Justice WHITE delivered the opinion of the Court.
Petitioner claims that his Fifth Amendment rights were violated, on the ground that the notice-of-alibi rule required him to furnish the State with information useful in convicting him, and that his Sixth Amendment right was violated on the ground that the six-man jury deprived him of the right to "trial by jury" under the Sixth Amendment. Footnote 19
But it is also a system designed to protect "freedom" by insuring that no one is criminally punished unless the State has first succeeded in the admittedly difficult task of convincing a jury that the defendant is guilty.
Virginia: Constitution, Art. 346 Federal and state jurisdictions may require disclosure on the intent to use an alibi defense early on in the criminal proceedings.
52, § 13 (1968), Art. VII, § 12; Ore.Rev.Stat.
Second, provisions that would have explicitly Attempts have also been made to trace the number 12 to early origins on the European Continent, particularly in Scandinavia. 388 U.S. 147, 148 All rights reserved.
Proffatt, Trial by Jury 11 n. 2 (1877) (citations omitted). to preserve the right to jury in civil, as well as criminal, cases, furnished part of the impetus for introducing amendments to the Constitution that ultimately resulted in the jury trial provisions of the Sixth and Seventh Amendments.
to be a witness against himself," contrary to the command of the Fifth and Fourteenth Amendments, because the "notice of alibi" rule required him to give the State the name and address of Mrs. Scotty in advance of trial, and thus to furnish the State with information useful in convicting him. Senate Journal, Sept. 4, 1789, 1st Cong., 1st Sess., 71.
I, however, cannot so lightly assume that pretrial notice will have no adverse effects on a defendant who later decides to forgo such a defense.
If he finds them reliable and unimpeachable he will doubtless re-examine his entire case and this process would very likely lead to dismissal of the charges. I reiterate what I said in dissent in Duncan, See La.Const., Art.