Does a criminal trial by a jury of only five members violate a defendant's constitutional right to a jury trial under the Sixth and Fourteenth Amendments?

Claude Davis Ballew managed the Paris Adult Theatre in Atlanta, Georgia. In November 1973, investigators viewed and seized a film titled "Behind the Green Door" from the theater. Ballew was subsequently charged with distributing obscene materials, violating Georgia Code Section 26-2101. He faced trial in the Criminal Court of Fulton County before a five-person jury, as stipulated by Georgia law. Ballew requested a 12-person jury, contending that a five-person jury was constitutionally insufficient for an obscenity trial, but his motion was denied.

The five-person jury deliberated for 38 minutes before convicting Ballew on both counts. He received a sentence of one year imprisonment and a $1,000 fine for each count. The periods of incarceration were to run concurrently and would be suspended upon payment of the fines.

Ballew was initially convicted by a five-person jury in the Criminal Court of Fulton County. Following his conviction, Ballew appealed to the Court of Appeals of Georgia. The appellate court rejected his arguments and affirmed the lower court's decision. Undeterred, Ballew sought review from the Supreme Court of Georgia, but his petition for certiorari was denied. Finally, Ballew petitioned the U.S. Supreme Court for certiorari, which was granted, bringing the case before the nation's highest court for consideration.

(Blackmun, J.)

Yes. A criminal trial by a jury of only five members violates a defendant's constitutional right to a jury trial under the Sixth and Fourteenth Amendments. The purpose and functioning of the jury in a criminal trial is seriously impaired, to a constitutional degree, by a reduction in size to below six members. Empirical studies and statistical data demonstrate that juries smaller than six threaten the fairness of the proceeding and the proper role of the jury. Meaningful deliberation, accurate fact-finding, and proper community representation are all compromised when jury size falls below this threshold. The right to trial by jury, as guaranteed by the Constitution, requires a jury of sufficient size to fulfill its essential functions. A five-person jury fails to meet this standard, as it cannot adequately perform the deliberative process, represent a fair cross-section of the community, or maintain the reliability of the verdict. The reduction in jury size from six to five members significantly increases the risk of wrongful convictions and undermines the integrity of the criminal justice system. No compelling state interest or significant justification exists for such a reduction that could outweigh the constitutional imperative of a properly functioning jury. The Sixth Amendment's guarantee of an impartial jury trial, applied to the states through the Fourteenth Amendment, demands that the jury be of sufficient size to safeguard the rights of the accused. A five-person jury falls short of this constitutional requirement, rendering any verdict from such a jury invalid under the Constitution.

Concurrence (White, J.) A jury of fewer than six persons would fail to represent the sense of the community and hence not satisfy the fair cross-section requirement of the Sixth and Fourteenth Amendments. This decision upholds the fundamental principle of community representation in jury trials, ensuring that verdicts reflect a broader societal perspective.

Concurrence (Powell, J.) While I concur in the judgment, I disagree with the full incorporation of the Sixth Amendment by the Fourteenth Amendment. The heavy reliance on statistical studies in this decision is concerning. Courts should exercise caution when basing constitutional interpretations primarily on empirical data, as such studies may not fully capture the complexities of legal principles and their practical applications.

Concurrence (Brennan, J.) The Georgia obscenity statute is overbroad and therefore facially unconstitutional. This case presents an opportunity to address the broader issue of state obscenity laws that infringe upon First Amendment rights. By focusing on the constitutional defects of the statute itself, we can provide clearer guidance to states in crafting legislation that respects free speech while addressing legitimate concerns about obscenity.