Does a state criminal trial before a jury of only five persons deprive the accused of the right to trial by jury guaranteed by the Sixth and Fourteenth Amendments?

Claude Davis Ballew managed the Paris Adult Theatre in Atlanta, Georgia. In November 1973, investigators from the Fulton County Solicitor General's office viewed the film "Behind the Green Door" at the theater, obtained warrants, and seized two copies of the film on separate occasions. Ballew and a cashier were arrested. On September 14, 1974, Ballew was charged in a two-count misdemeanor accusation with distributing obscene materials in violation of Georgia Code Section 26-2101, based on exhibiting the film with knowledge of its obscene nature.

Ballew was tried in the Criminal Court of Fulton County, which tried misdemeanor cases before juries of five persons under the Georgia Constitution and state statutes. After a five-person jury was selected and sworn, Ballew moved for a 12-person jury, arguing that five jurors could not adequately assess community standards in an obscenity trial and that the Sixth and Fourteenth Amendments required at least six jurors. The court denied the motion. The jury deliberated 38 minutes and convicted on both counts. Ballew received concurrent one-year sentences and $1,000 fines on each count, with incarceration suspended upon payment of the fines.

The Criminal Court of Fulton County denied Ballew's motion for a 12-person jury, tried him before a five-person jury, convicted him on both counts, and later denied an amended motion for a new trial. Ballew appealed to the Court of Appeals of Georgia, raising insufficiency of the evidence, First Amendment errors, illegal seizures, double jeopardy, and the five-person-jury claim. The Court of Appeals rejected all contentions and affirmed, holding itself bound by Sanders v. State, which upheld the five-person jury. The Supreme Court of Georgia denied certiorari. The United States Supreme Court granted certiorari, 429 U.S. 1071 (1977), and decided only the jury-size issue.

(Blackmun, J., plurality opinion)

Yes. A criminal trial before a five-member jury violates the Sixth and Fourteenth Amendments. This is Justice Blackmun's opinion announcing the judgment, joined by Justice Stevens, and joined by Justices Brennan, Stewart, and Marshall insofar as it held that criminal juries must have more than five members. Justices White, Powell, the Chief Justice, and Justice Rehnquist concurred only in the judgment.

The plurality reaffirmed Williams v. Florida, 399 U.S. 78 (1970), which upheld six-person juries because the jury's purpose is to prevent oppression by the government through community participation and the application of laymen's common sense. Recent empirical studies, largely post-dating Williams, show that this purpose is seriously impaired below six members. Smaller groups deliberate less effectively, are less able to remember evidence and counterbalance biases, produce a greater risk of convicting the innocent, yield less consistent verdicts, produce fewer hung juries to the detriment of the defense, and are less likely to include minority viewpoints and represent the community.

Georgia's counterarguments failed. Johnson v. Louisiana did not approve five-person juries. The jury's functions do not vary with whether a crime is labeled a misdemeanor, given the substantial liberty deprivation here (Baldwin v. New York, 399 U.S. 66 (1970)). Unanimity does not cure the problem, because the concern is the small group's capacity to deliberate and represent the community. The absence of an equal protection violation does not resolve the Sixth Amendment issue. The studies Georgia relied on suffer from methodological flaws.

The State showed no significant justification. Savings from reducing six jurors to five are minimal, and only Georgia and Virginia use five-person juries. The judgment was reversed and remanded.

Concurrence (Stevens, J.) Stevens joins Justice Blackmun's opinion but has not altered the views he expressed in Marks v. United States, 430 U.S. 188.

Concurring in the judgment (White, J.) A jury of fewer than six persons would fail to represent the sense of the community and would not satisfy the fair cross-section requirement of the Sixth and Fourteenth Amendments, so reversal is warranted.

Concurring in the judgment (Powell, J., joined by Burger, C.J., and Rehnquist, J.) Use of a five-member jury with authority to convict for serious offenses raises grave questions of fairness, and a line must be drawn somewhere to preserve the substance of jury trial. Powell does not join Blackmun's opinion because it assumes full incorporation of the Sixth Amendment against the States, contrary to his view in Apodaca v. Oregon, 406 U.S. 404 (1972), that every feature of jury trial need not be identical in federal and state courts. He also doubts the wisdom and necessity of heavy reliance on numerology from statistical studies whose validity and methodology were never tested by the adversary process. The plurality answered in a footnote that these studies provide the only basis besides judicial hunch for deciding whether smaller juries can fulfill the jury's purpose, and noted that the Chief Justice used empirical data in Williams and Colgrove v. Battin.

Concurrence and dissent in part (Brennan, J., joined by Stewart and Marshall, JJ.) Brennan joins the holding that juries in criminal trials must contain more than five persons, but disagrees that Ballew may be retried, because Ga. Code Ann. § 26-2101 is overbroad and facially unconstitutional, as he argued in Sanders v. Georgia and Paris Adult Theatre I v. Slaton.