Does the Fourteenth Amendment's Due Process Clause guarantee a state criminal defendant the right to a jury trial in any case that, if tried in federal court, would fall within the Sixth Amendment's jury trial guarantee, including a prosecution for a misdemeanor punishable by up to two years' imprisonment?

Gary Duncan, a 19-year-old Black man, was driving on a Louisiana highway in Plaquemines Parish on October 18, 1966, when he saw his two younger cousins talking with four white boys by the roadside. His cousins had recently transferred to a formerly all-white high school and had reported racial incidents there. Duncan stopped, got out, and approached the group. Witnesses for both sides agreed that Duncan spoke with the white boys, encouraged his cousins to break off the encounter and get into his car, and was about to enter the car to drive away. The white boys and an onlooker testified that Duncan slapped Herman Landry, one of the white boys, on the elbow just before getting in. Duncan and his cousins testified that he merely touched Landry. Duncan was charged with simple battery, a misdemeanor under Louisiana law punishable by up to two years' imprisonment and a $300 fine. He requested a jury trial. The trial judge denied the request because the Louisiana Constitution granted jury trials only where capital punishment or imprisonment at hard labor could be imposed. The judge found Duncan guilty and sentenced him to 60 days in parish prison and a $150 fine.

Duncan was tried without a jury in the Twenty-fifth Judicial District Court of Louisiana, which denied his jury trial request, convicted him of simple battery, and sentenced him to 60 days in prison and a $150 fine. He sought review in the Louisiana Supreme Court, claiming the denial of a jury trial violated the United States Constitution. That court found no error of law in the trial court's ruling and denied a writ of certiorari. Duncan appealed to the United States Supreme Court under 28 U.S.C. § 1257(2). The Court noted probable jurisdiction and set the case for oral argument together with Bloom v. Illinois.

(White, J.)

Yes. The Fourteenth Amendment guarantees a right to jury trial in all state criminal cases that, if tried in federal court, would come within the Sixth Amendment's jury trial guarantee. Duncan's conviction is reversed and the case is remanded.

The test for whether a federal right applies to the States through the Due Process Clause asks whether it is a fundamental principle of liberty and justice, basic to the American system of jurisprudence and essential to a fair trial (Powell v. Alabama, In re Oliver, Gideon v. Wainwright). Trial by jury in serious criminal cases meets that test. The institution runs from Magna Carta and Blackstone through the colonial resolutions against royal interference with juries, the Declaration of Independence, Article III, and the Sixth Amendment. Every State guarantees jury trial in serious criminal cases, and recent state constitutional revisions preserved it.

The jury guards against oppression by government. It protects the accused from a corrupt or overzealous prosecutor and from a compliant, biased, or eccentric judge, and it reflects a reluctance to entrust plenary power over life and liberty to a judge or group of judges. Prior statements in Maxwell v. Dow, Palko v. Connecticut, and Snyder v. Massachusetts that jury trial is not essential are dicta, because none of those cases involved a State that denied jury trial entirely in a serious case. Those statements are rejected. The long debate over the jury's wisdom centers mostly on civil cases, and the most exhaustive study of criminal juries found that they understand the evidence and reach sound conclusions. Jury waivers and bench trials for petty offenses remain permissible.

Petty offenses have traditionally been tried without juries, and the Fourteenth Amendment preserves that exception. The authorized penalty is the main gauge of seriousness (District of Columbia v. Clawans; Cheff v. Schnackenberg), judged by objective criteria. Federal law treats offenses punishable by no more than six months and a $500 fine as petty. In 49 of 50 States, crimes tried without a jury carry maximums of one year or less. The Court need not fix the exact line between petty and serious offenses. A crime punishable by two years' imprisonment is serious, so Duncan was entitled to a jury and the denial was error.

Concurrence (Black, J., joined by Douglas, J.) The Fourteenth Amendment makes the provisions of the Bill of Rights applicable to the States, a position drawn from his Adamson v. California dissent. The Privileges or Immunities Clause is a natural way to express that the Bill of Rights now binds the States, and Senator Howard, who introduced the Amendment in the Senate, read it that way. Professor Fairman's contrary history relies on what was not said in state legislatures rather than on what the sponsors said. He supports selective incorporation only as an alternative that confines judges to specific Bill of Rights protections. He criticizes Justice Harlan's due process approach as leaving judges to apply undefined standards like "fundamental fairness" and "shocks the conscience" according to personal values. That approach has no basis in the history of due process, which traces to Magna Carta's guarantee of trial under pre-existing law. Applying the Bill of Rights to the States does not threaten federalism, because denying States power to impair fundamental rights limits both federal and state power.

Dissent (Harlan, J., joined by Stewart, J.) The Due Process Clause requires only fundamental fairness, and the Court has not shown that trial by jury is the only fair means of resolving criminal fact questions. The Court's selective incorporation approach lacks the internal logic of total incorporation and the case-by-case analysis of fairness that due process requires. It adopts the Sixth Amendment's jury clause wholesale, with all its federal interpretive baggage such as the twelve-person rule and unanimity, even though none of this is fundamental to ordered liberty. The Court also offers no real analysis of the jury's role, and defines "fundamental" circularly to mean old, much praised, and found in the Bill of Rights. The Fairman history shows the Fourteenth Amendment's framers did not intend to incorporate the Bill of Rights. Maxwell v. Dow and other precedent held that jury trial is not required by due process, and nothing has changed. The jury's original function of checking a tyrannous judiciary has largely disappeared, it is costly and cumbersome, and most cases in England and the United States are tried without one. The line between petty and serious crimes is not a matter of fundamental fairness, and States should be free to experiment. He would affirm.

The majority answers the Louisiana-raised objection that incorporation will import all past Sixth Amendment interpretations (jury size, unanimity) by noting that its decisions interpreting the Sixth Amendment are always subject to reconsideration and that few States would need to change their practices.