Williams v. Florida Opinion

    NOTICE : This opinion is subject to formal revision before publication 
in the preliminary print of the United States Reports. Readers are re­
quested to notify the Reporter of Decisions, Supreme Court of the 
United States, Washington, D.C. 20543, of any typographical or other 
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SUPBEME COURT OF THE UNITED STATES

No. 927.— October T erm, 1969

Johnny Williams, 
Petitioner, 

v.
State of Florida.,

On Writ of Certiorari to the District 
Court of Appeal of Florida, Third 
District.

[June 22, 1970]

M r. Justice W hite delivered the opinion of the Court.
Prior to his trial for robbery in the State of Florida, 

petitioner filed a “Motion for a Protective Order,” seek­
ing to be excused from the requirements of Rule 1.200 
of the Florida Rules of Criminal Procedure. That rule 
requires a defendant, on written demand of the prosecut­
ing attorney, to give notice in advance of trial if the 
defendant intends to claim an alibi, and to furnish the 
prosecuting attorney with information as to the place 
he claims to have been and with the names and addresses 
of the alibi witnesses he intends to use.1 In his motion 
petitioner openly declared his intent to claim an alibi, 
but objected to the further disclosure requirements on 
the ground that the Rule “compels the defendant in a 
criminal case to be a witness against himself” in viola­
tion of his Fifth and Fourteenth Amendment rights.1 2 
The motion was denied. Petitioner also filed a pre-trial 
motion to impanel a 12-man jury instead of the six- 
man jury provided by Florida law in all but capital

1 The full text of the Rule is set out in the appendix to this
opinion, infra, at -----. Subsequent references to an appendix are
to the separately bound appendix filed with the briefs in this case 
[hereinafter “App.” ].

2 See App., 5.



2 WILLIAMS v. FLORIDA

cases.3 That motion too was denied. Petitioner was 
convicted as charged and was sentenced to life imprison­
ment.4 The District Court of Appeal affirmed, rejecting 
petitioner’s claims that his Fifth and Sixth Amendment 
rights had been violated. We granted certiorari.5 * 396 
U. S. 955 (1969).

I

Florida’s notice-of-alibi rule is in essence a require­
ment that a defendant submit to a limited form of 
pre-trial discovery by the State whenever he intends to 
rely at trial on the defense of alibi. In exchange for 
the defendant’s disclosure of the witnesses he proposes 
to use to establish that defense, the State in turn is 
required to notify the defendant of any witnesses it 
proposes to offer in rebuttal to that defense. Both sides 
are under a continuing duty promptly to disclose the 
names and addresses of additional witnesses bearing on 
the alibi as they become available. The threatened 
sanction for failure to comply is the exclusion at trial 
of the defendant’s alibi evidence—except for his own 
testimony—or, in the case of the State, the exclusion of 
the State’s evidence offered in rebuttal to the alibi.13

In this case, following the denial of his Motion for 
a Protective Order, petitioner complied with the alibi

3 Fla. Stat. §913.10 (1) (1967):
“Twelve men shall constitute a jury to try all capital cases, and 

six men shall constitute a jury to try all other criminal cases.”
4 See App., 82.
5 The Supreme Court of Florida had earlier held that it was 

without jurisdiction to entertain petitioner’s direct appeal from the 
trial court. See id., at 92. Under Florida law, the District Court 
of Appeal became the highest court from which a decision could 
be had. See Fla. Const. Art. V, § 4 (2 ); Fla. App. Rule 2.1a (5) ( a ) ; 
Ansin v. Thurston, 101 So. 2d 808, 810 (1958).

G “For good cause shown” the court may waive the requirements 
of the Rule. Fla. Rule Crim. Proc. 1.200.



WILLIAMS v. FLORIDA 3

rule and gave the State the name and address of one 
Mary Scotty. Mrs. Scotty was summoned to the office 
of the State Attorney on the morning of the trial, where 
she gave pre-trial testimony. At the trial itself, Mrs. 
Scotty, petitioner, and petitioner’s wife all testified that 
the three of them had been in Mrs. Scotty’s apartment 
during the time of the robbery. On two occasions dur­
ing cross-examination of Mrs. Scotty, the prosecuting 
attorney confronted her with her earlier deposition in 
which she had given dates and times which in some 
respects did not correspond with the dates and times 
given at trial. Mrs. Scotty adhered to her trial story, 
insisting that she had been mistaken in her earlier 
testimony.7 The State also offered in rebuttal the testi­
mony of one of the officers investigating the robbery 
who claimed that Mrs. Scotty had asked him for direc­
tions on the afternoon in question during the time when 
she claimed to have been in her apartment with peti­
tioner and his wife.8

We need not linger over the suggestion that the dis­
covery permitted the State against petitioner in this 
case deprived him of “due process” or a “ fair trial.” 
Florida law provides for liberal discovery by the de­
fendant against the State,9 and the notice-of-alibi rule 
is itself carefully hedged with reciprocal duties requiring 
state disclosure to the defendant. Given the ease with 
which an alibi can be fabricated, the State’s interest in 
protecting itself against an eleventh hour defense is 
both obvious and legitimate. Reflecting this interest, 
notice-of-alibi provisions, dating at least from 1927,10

7 See App., 58-60.
8 Id., at 65-66.
9 See Fla. Rule Crim. Proc. 1.220. These discovery provisions 

were invoked by petitioner in the instant case. See App., 3, 4, 8.
10 See Epstein, Advance Notice of Alibi, 55 J. Crim. L. C. & P. S. 

29, 32 (1964).



4 WILLIAMS v. FLORIDA

are now in existence in a substantial number of States.11 
The adversary system of trial is hardly an end to itself ; 
it is not yet a poker game in which players enjoy an 
absolute right always to conceal their cards until 
played.11 12 We find ample room in that system, at least 
as far as “due process” is concerned, for the instant 
Florida rule, which is designed to enhance the search for 
truth in the criminal trial by insuring both the defendant 
and the State ample opportunity to investigate certain 
facts crucial to the determination of guilt or innocence.

Petitioner’s major contention is that he was “com­
pelled to be a witness against himself” contrary to 
the commands 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 ad­
vance of trial and thus to furnish the State with in­
formation useful in convicting him. No pre-trial state­
ment of petitioner was introduced at trial; but armed 
with Mrs. Scotty’s name and address and the knowledge

11 In addition to Florida, at least 15 States appear to have alibi- 
notice requirements of one sort or another. See Ariz. Rule Grim. 
Proc. 192 (B) (1956); Ind. Ann. Stat. §§9-1631 to 9-1633 (1956); 
Iowa Code § 777.18 (1962); Kan. Gen. Stat. Ann. § 62-1341 (1964); 
Mich. Comp. Laws §§ 768.20, 768.21; Minn. Stat. § 630.14 (1961); 
N. J. Rules 3:5-9 (1958); N. Y. Code Crim. Proc. §295-1 (1958); 
Ohio Rev. Code Ann. § 2945.58 (Page 1964); Okla. Stat. tit. 22 § 585 
(1961); Pa. Rule Crim. Proc. 312, 19 P. S. App. (1970); S. D. Code 
§34.2801 (Supp. 1960); Utah Code Ann. §77-22-17 (1964); Vt. 
Stat. Ann. tit. 13, §§ 6561, 6562 (1959); Wis. Stat. §955.07 (1961). 
See generally 6 Wigmore, Evidence, § 1855b (3d ed. 1940).

We do not, of course, decide that each of these alibi-notice pro­
visions 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.

12 See, e. g., Brennan, The Criminal Prosecution: Sporting Event 
or Quest for Truth, 1963 Wash. U. L. Q. 279, 292.



WILLIAMS v, FLORIDA 5

that she was to be petitioner’s alibi witness, the State 
was able to take her deposition in advance of trial 
and to find rebuttal testimony. Also, requiring him to 
reveal the elements of his defense is claimed to have 
interferred with his right to wait until after the State 
had presented its case to decide how to defend against 
it. We conclude, however, as has apparently every 
other court which has considered the issue,13 that the 
privilege against self-incrimination is not violated by a 
requirement that the defendant give notice of an alibi 
defense and disclose his alibi witnesses.14

The defendant in a criminal trial is frequently forced 
to testify himself and to call other witnesses in an effort 
to reduce the risk of conviction. When he presents his 
witnesses, he must reveal their identity and submit them 
to cross examination which in itself may prove incrim­
inating or which may furnish the State with leads to

18 E. g., State v. Stump, 254 Iowa 1181, 119 N. W. 2d 210, cert, 
denied, 375 U. S. 853 (1963); State v. Baldwin, 47 N. J. 379, 221 A. 
2d 199, cert, denied, 385 U. S. 980 (1966); People v. Rakiec, 260 
App. Div. 452, 23 N. Y. S. 2d 607, 612-613 (1940); Commonwealth 
v. Vecchiolli, 208 Pa. Super. 483, 224 A. 2d 96 (1966); see Jones v. 
Superior Court, 22 Cal. Rptr. 879, 372 P. 2d 919 (1962); Louisell, 
Criminal Discovery and Self-Incrimination: Roger Traynor Con­
fronts the Dilemma, 53 Calif. L. Rev. 89 (1965); Traynor, Ground 
Lost and Found in Criminal Discovery, 39 N. Y. U. L. Rev. 228 
(1964); Comment, The Self-Incrimination Privilege: Barrier to 
Criminal Discovery?, 51 Calif. L. Rev. 135 (1963); 76 Harv. L. Rev. 
838 (1963).

14 We emphasize that this case does not involve the question of 
the validity of the threatened sanction, had petitioner chosen not to 
comply with the notice-of-alibi rule. Whether and to what extent 
a State can enforce discovery rules against a defendant who fails 
to comply, by excluding relevant, probative evidence is a question 
raising Sixth Amendment issues which we have no occasion to 
explore. Cf. brief for amicus curiae, 17-26. It is enough that no 
such penalty was exacted here.



6 WILLIAMS v. FLORIDA

incriminating rebuttal evidence. That the defendant 
faces such a dilemma demanding a choice between com­
plete silence and presenting a defense has never been 
thought an invasion of the privilege against compelled 
self-incrimination. The pressures generated by the 
State’s evidence may be severe but they do not vitiate 
the defendant’s choice to present an alibi defense and 
witnesses to prove it, even though the attempted de­
fense ends in catastrophe for the defendant. However 
“testimonial” and “incriminating” the alibi defense 
proves to be, it cannot be considered “compelled” within 
the meaning of the Fifth and Fourteenth Amendments.

Very similar constraints operate on the defend­
ant when the State requires pre-trial notice of alibi 
and the naming of alibi witnesses. Nothing in such a 
rule requires the defendant to rely on an alibi or pre­
vents him from abandoning the defense; these matters 
are left to his unfettered choice.15 That choice must

15 Petitioner’s apparent suggestion to the contrary is simply not 
borne out by the facts of this case. The mere requirement that 
petitioner disclose in advance his intent to rely on an alibi in no 
way “ fixed”  his defense as of that point in time. The suggestion 
that the State, by referring to petitioner’s proposed alibi in opening 
or closing statements might have “ compelled” him to follow through 
with the defense in order to avoid an unfavorable inference is a 
hypothetical totally without support in this record. The first ref­
erence to the alibi came from petitioner’s own attorney in his 
opening remarks; the State’s response did not come until after the 
defense had finished direct examination of Mrs. Scotty. Petitioner 
appears to raise this issue as a possible defect in alibi-notice re­
quirements in general, without seriously suggesting that his choice 
of defense at trial in this case would have been different but for 
his prior compliance with the Rule. Indeed, in his Motion for a 
Protective Order, petitioner freely disclosed his intent to rely on 
an alibi; his only objection was to the further requirement that he 
disclose the nature of the alibi and the name of the witness. On 
these facts, then, we simply are not confronted with the question



WILLIAMS v. FLORIDA 7

be made, but the pressures which bear on his pre-trial 
decision are of the same nature as those which would 
induce him to call alibi witnesses at the trial: the force 
of historical fact beyond both his and the State’s control 
and the strength of the State’s case built on these facts. 
Response to that kind of pressure by offering evidence 
or testimony is not compelled self-incrimination trans­
gressing the Fifth and Fourteenth Amendments..

In the case before us, the notice-of-alibi rule by itself 
in no way affected petitioner’s crucial decision to call 
alibi witnesses or added to the legitimate pressures lead­
ing to that course of action. At most, the rule only 
compelled petitioner to accelerate the timing of his dis­
closure, forcing him to divulge at an earlier date infor­
mation which the petitioner from the beginning planned 
to divulge at trial. Nothing in the Fifth Amendment 
privilege entitles a defendant as a matter of constitu­
tional right to await the end of the State’s case before 
announcing the nature of his defense, any more than it 
entitles him to await the jury’s verdict on the State’s 
case-in-chief before deciding whether or not to take the 
stand himself.

Petitioner concedes that absent the notice-of-alibi rule 
the Constitution would raise no bar to the court’s 
granting the State a continuance at trial on the grounds 
of surprise as soon as the alibi witness is called.16 Nor

of whether a defendant can be compelled in advance of trial to 
select a defense from which he can no longer deviate. We do 
not mean to suggest, though, that such a procedure must neces­
sarily raise serious constitutional problems. See State ex rel. Simos 
v. Burke, 41 Wis. 2d 129, 163 N. W. 2d 177, 181 (1968) (“ [i]f 
we are discussing the right of a defendant to defer until the 
moment of his testimony the election between alternative and 
inconsistent alibis, we have left the concept of the trial as a search 
for truth far behind” ).

16 See reply brief for petitioner, p, 2 and n. 1.



8 WILLIAMS v. FLORIDA

would there be self-incrimination problems if, during 
that continuance, the State was permitted to do precisely 
what it did here prior to trial: to depose the witness and 
find rebuttal evidence. But if so utilizing a continuance 
is permissible under the Fifth and Fourteenth Amend­
ments, then surely the same result may be accomplished 
through pretrial discovery, as it was here, avoiding the 
necessity of a disrupted trial.17 We decline to hold that 
the privilege against compulsory self-incrimination guar­
antees the defendant the right to surprise the State with 
an alibi defense.

II
In Duncan v. Louisiana, 391 U. S. 145 (1968), we held 

that the Fourteenth Amendment guarantees a right to 
trial by jury in all criminal cases which—were they to 
be tried in a federal court—would come within the Sixth 
Amendment’s guarantee. Petitioner’s trial for robbery 
on July 3, 1968, clearly falls within the scope of that
holding. See Baldwin v. New York, ante, p. ---- ; De
Stejano v. Woods, 392 U. S. 631 (1968). The question 
in this case then is whether the constitutional guarantee 
of a trial by “ jury” necessarily requires trial by exactly 
12 persons, rather than some lesser number—in this case 
six. We hold that the 12-man panel is not a necessary 
ingredient of “ trial by jury,” and that respondent’s re­
fusal to impanel more than the six members provided 
for by Florida law did not violate petitioner’s Sixth 
Amendment rights as applied to the States through the 
Fourteenth.

We had occasion in Duncan v. Louisiana, supra, to 
review briefly the oft-told history of the development

17 It might also be argued that the “ testimonial” disclosures pro­
tected by the Fifth Amendment include only statements relating to 
the historical facts of the crime, not statements relating solely to 
what a defendant proposes to do at trial.



WILLIAMS v. FLORIDA 9

of trial by jury in criminal cases.18 That history revealed 
a long tradition attaching great importance to the con­
cept of relying on a body of one’s peers to determine 
guilt or innocence as a safeguard against arbitrary law 
enforcement. That same history, however, affords little 
insight into the considerations which gradually led the 
size of that body to be generally fixed at 12.19 Some 
have suggested that the number 12 was fixed upon simply 
because that was the number of the presentment jury 
from the hundred, from which the petty jury developed.20

18 See Duncan v. Louisiana, 391 U. S. 145, 151-154 (1968).
19 In tracing the development of the jury from the time when the 

jury performed a different, “ inquisitory” function, James B. Thayer 
notes the following:

“In early times the inquisition had no fixed number. In the 
Frankish empire we are told of 66, 41, 20, 17, 11, 8, 7, 53, 15, and 
a great variety of other numbers. So also among the Normans it 
varied much, and ‘twelve has not even the place of the prevailing 
grundzahl;’ the documents show all sorts of numbers— 4, 5„ 6, 12, 
13-18, 21, 27, 30, and so on. It seems to have been the recogni­
tions under Henry II. that established twelve as the usual number; 
even then the number was not uniform.”

Thayer, The Jury and its Development, 5 Harv. L. Rev. 295 
(1892) (citations omitted); see J. Thayer, A Preliminary Treatise 
on Evidence at the Common Law 85 (1898).

Similarly, Professor Scott writes:
“At the beginning of the thirteenth century twelve was indeed the 

usual but not the invariable number. But by the middle of the 
fourteenth century the requirement of twelve had probably become 
definitely fixed. Indeed this number finally came to be regarded 
with something like superstitious reverence,” A. Scott, Funda­
mentals of Procedure in Actions at Law 75-76 (1922) (footnotes 
omitted).

201 W. Holdsworth, A History of English Law 325 (1927); 
Wells, The Origin of the Petty Jury, 27 L. Q. Rev. 347, 357 (1911). 
The latter author traces the development of the 12-man petty jury 
through the following four stages. The first stage saw the develop­
ment of the presentment jury, made up generally of 12 persons 
from the hundred, whose function was simply to charge the ac­



10 WILLIAMS v. FLORIDA

Other, less circular but more fanciful reasons for the 
number 12 have been given, “but they were all brought 
forward after the number was fixed,” 21 and rest on little 
more than mystical or superstitious insights into the 
significance of “ 12.” Lord Coke’s explanation that the 
“number of twelve is much respected in holy writ, as 12 
apostles, 12 stones, 12 tribes, etc.” 22 is typical.23 In

cused with a crime; the test of his guilt or innocence was by some 
other means, such as trial by ordeal, battle, or wager of law. In 
the second stage, the presentment jury began to be asked for its 
verdict on the guilt or innocence of the person it had accused, 
and hence began to function as both a petty and a grand jury. 
In the third stage, “ combination juries” were formed to render the 
verdict in order to broaden the base of representation beyond the 
local hundred, or borough, to include the county. These juries 
were, formed by adding one or more presentment juries from one 
or more hundreds, as well as certain officials such as coroners or 
knights. “ These combination juries numbered from twenty-four to 
eighty-four jurors, and the number became embarrassingly large and 
unwieldy, and the sense of personal responsibility of each juror was 
in danger of being lost.” Id., at 356. The obvious fourth step was 
the creation of a special jury “ formed by selecting one or more 
jurors from each of several of the presentment juries of the hun­
dreds until the number twelve is reached . . . probably because that 
was the number of the presentment jury from the hundred. There­
fore, just as the presentment jury represented the voice of the hun­
dred in making the accusation, so the jury of ‘the country’, with the 
same number, represented the whole county in deciding whether the 
accused was guilty or not.” Id., at 357.

Neither of these authors hazards a guess as to why the present­
ment jury itself numbered 12.

21 Id., at 357.
221 Coke, Institutes of the Laws of England *155a (1st Amer. 

ed. 1812).
23 Thus John Proffatt in his treatise on jury trials notes that the 

reasons why the number of the petit jury is 12, are “ quaintly 
given” in Duncombe’s Trial per Pais, as follows:
“ [T]his number is no less esteemed by our own law than by 
holy writ. If the twelve apostles on their twelve thrones must



WILLIAMS v. FLORIDA 11

short, while sometime in the 14th century the size of the 
jury at common law came to be fixed generally at 12,24 
that particular feature of the jury system appears to 
have been an historical accident, unrelated to the great

try us in our eternal state, good reason hath the law to appoint 
the number twelve to try us in our temporal. The tribes of Israel 
were twelve, the patriarchs were twelve, and Solomon’s officers 
were twelve.”  J. Proffatt, Trial by Jury 112 n. 4 (1877), quoting 
G. Duncombe, 1 Trials per Pais 92-93 (8th ed. 1766).

Attempts have also been made to trace the number 12 to 
early origins on the European continent, particularly in Scandinavia 
and Denmark. See F. Busch, 1 Law and Tactics in Jury Trials 
§24 (1959). See generally W. Forsyth, History of Trial by Jury 4 
(1852); T. Repp, Trial by Jury (1832). But even as to the 
Continental practice, no better reasons are discovered for the num­
ber 12. Thus Proffatt, in discussing the ancient Scandinavian 
tribunals, comments:
“Twelve was not only the common number throughout Europe, but 
was the favorite number in every branch of the polity and juris­
prudence of the Gothic nations.

The singular unanimity in the selection of the number twelve 
to compose certain judicial bodies, is a remarkable fact in the 
history of many nations. Many have sought to account for this 
general custom, and some have based it on religious grounds. 
One of the ancient kings of Wales, Morgan of Gla-Morgan, to 
whom is accredited the adoption of the trial by jury in A. D. 725, 
calls it the ‘Apostolic Law.’ ‘For,’ said he, ‘as Christ and his twelve 
apostles were finally to judge the world, so human tribunals should 
be composed of the king and twelve wise men.’ ”  J. Proffatt, Trial 
by Jury 11 n. 2 (1877) (citations omitted). See also L. Pike, A 
History of Crime in England 122 (1873).

In this connection it is interesting to note the following oath, re­
quired of the early 12-man jury:
“ Hear this, ye Justices! that I will speak the truth of that which 
ye shall ask of me on the part of the king, and I will do faithfully 
to the best of my endeavour. So help me God, and these holy 
Apostles.” W. Forsyth, Trial by Jury 197 (1852); see J. Proffatt, 
supra, at 42.

24 See n. 19, supra.



12 WILLIAMS v. FLORIDA

purposes which gave rise to the jury in the first place.25 
The question before us is whether this accidental feature 
of the jury has been immutably codified into our 
Constitution.

This Court’s earlier decisions have assumed an affirm­
ative answer to this question. The leading case so con­
struing the Sixth Amendment is Thompson v. Utah, 
170 U. S. 343 (1898). There the defendant had been 
tried and convicted by a 12-man jury for a crime com­
mitted in the Territory of Utah. A new trial was 
granted, but by that time Utah had been admitted as 
a State. The defendant’s new trial proceeded under 
Utah’s Constitution, providing for a jury of only eight 
members. This Court reversed the resulting conviction, 
holding that Utah’s constitutional provision was an ex 
post facto law as applied to the defendant. In reaching 
its conclusion, the Court announced that the Sixth 
Amendment was applicable to the defendant’s trial when 
Utah was a territory, and that the jury referred to in 
the Amendment was a jury “constituted, as it was at 
common law, of twelve persons, neither more nor less.” 
170 U. S., at 349. Arguably unnecessary for the result,26

25 P. Devlin, Trial by Jury 8 (1956); F. Heller, The Sixth Amend­
ment 64 (1951); W. Willoughby, Principles of Judicial Administra­
tion 503 (1929); Tamm, The Five-Man Civil Jury: A Proposed 
Constitutional Amendment, 51 Geo. L. J. 120, 128-130 (1962); 
Wiehl, The Six Man Jury, 4 Gonzaga L. Rev. 35, 38-39 (1968); 
see J. Thayer, supra n. 19, at 89-90; White, Origin and Development 
of Trial by Jury, 29 Tenn. L. Rev. 8, 15-16, 17 (1959).

26 At the time of the crime and at the first trial the statutes of 
the Territory of Utah— wholly apart from the Sixth Amendment—  
ensured Thompson a 12-man jury. See 170 U. S., at 345. The 
Court found the ex post facto question easy to solve, once it was 
assumed that Utah’s subsequent constitutional provision deprived 
Thompson of a right previously guaranteed him by the United 
States Constitution; the possibility that the same result might



WILLIAMS v. FLORIDA 13

this announcement was supported simply by referring 
to the Magna Carta,27 and by quoting passages from 
treatises which noted—what has already been seen— 
that at common law the jury did indeed consist of 12. 
Noticeably absent was any discussion of the essential 
step in the argument: namely, that every feature of the 
jury as it existed at common law—whether incidental or 
essential to that institution—was necessarily included 
in the Constitution wherever that document referred to 
a “ jury.” 28 Subsequent decisions have reaffirmed the

have been reached solely on the basis of the rights formerly accorded 
Thompson under the territorial statute was hinted at, but was not 
explicitly considered.

27 Whether or not the Magna Carta’s reference to a judgment 
by one’s peers was a reference to a “ jury,”— a fact which historians 
now dispute, see, e. g., 1 F. Pollock & F. Maitland, The History 
of English Law Before the Time of Edward I, at 173 n. 3 (2d ed. 
1909); Frankfurter & Corcoran, Petty Federal Offenses and the 
Constitutional Guaranty of Trial by Jury, 39 Harv. L. Rev. 917, 
922 n. 14 (1926) (criticizing Thompson v. Utah’s reliance on the 
document “ long after scholars had exposed this ancient error” )— 
it seems clear that the Great Charter is not authority for fixing the 
number of the jury at 12. See W. McKeehnie, Magna Carta 134- 
138; 375-382 (1958); Scott, Trial by Jury and the Reform of Civil 
Procedure, 31 Harv. L. Rev. 669, 672 (1918).

As the text indicates, the question is not whether the 12-man 
jury is traced to 1215 or to 1789, but whether that particular 
feature must be accepted as a sine qua non of the jury trial guaran­
teed by the Constitution. See F. Heller, supra n. 25, at 64.

28 The Thompson opinion also reasoned that if a jury can be 
reduced from 12 to eight, then there was nothing to prevent its 
similarly being reduced to four or two or even zero, thus dispensing 
with the jury altogether. See 170 U. S., at 353 (1898). That 
bit of “ logic,” resurrected today in M r . Justice  H a r la n ’s concurring 
opinion, post, at 9, suffers somewhat as soon as one recognizes that he 
can get off the “ slippery slope” before he reaches the bottom. 
We have no occasion in this case to determine what minimum 
number can still constitute a “ jury,”  but we do not doubt that 
six is above that minimum.



14 WILLIAMS v. FLORIDA

announcement in Thompson, often in dictum29 and 
usually by relying—where there was any discussion of 
the issue at all—solely on the fact that the common 
law jury consisted of 12.30 See Patton v. United 
States, 281 U. S. 276, 288 (1930); 31 Rassmussen v. 
United States, 197 U. S. 516, 519 (1905); Maxwell v. 
Dow, 176 U. S. 581, 586 (1900).

While “ the intent of the Framers” is often an elusive 
quarry, the relevant constitutional history casts consider­
able doubt on the easy assumption in our past decisions 
that if a given feature existed in a jury at common law

29 A ruling that the Sixth Amendment refers to a common law 
jury was essential to the holding in Rassmussen v. United States, 
197 U. S. 516 (1905), where the Court held invalid a conviction 
by a six-man jury in Alaska. The ruling was accepted at the Gov­
ernment’s concession without discussion or citation; the major focus 
of the case was on the question whether the Sixth Amendment was 
applicable to the territory in question at all. See 197 U. S., at 519 
(1905).

30 Similarly, cases interpreting the jury trial provisions of the 
Seventh Amendment generally leap from the fact that, the jury 
possessed a certain feature at common law to the conclusion that 
that feature must have been preserved by the Amendment’s simple 
reference to trial by “ jury.”  E. g., Capital Traction Co. v. Hof, 
174 U. S. 1, 13-14 (1899); American Publishing Co. v. Fisher, 166 
U. S. 464, 468 (1897). While much of our discussion in this case 
may be thought to bear equally on the interpretation of the Sev­
enth Amendment’s jury trial provisions, we emphasize that the 
question is not before us; we do not decide whether, for example, 
additional references to the “ common law” which occur in the 
Seventh Amendment might support a different interpretation. See 
injra, at 19 and n, 44.

31 The Patton opinion furnishes an interesting illustration of the 
Court’s willingness to re-examine earlier assertions about the nature 
of “ jury trial” in almost every respect except the 12-man jury 
requirement. Patton reaffirmed the 12-man requirement with a 
simple citation to Thompson v. Utah, while at the same time dis­
carding as “ dictum” the equally dogmatic assertion in Thompson 
that the requirement could not be waived. See 281 U. S., at 293.



WILLIAMS v. FLORIDA 15

in 1789, then it was necessarily preserved in the Con­
stitution. Provisions for jury trial were first placed in 
the Constitution in Article I l l ’s provision that “ [t]he 
Trial of all Crimes . . . shall be by jury; and such 
Trial shall be held in the State where the said Crimes 
shall have been committed.” 32 The “very scanty his­
tory [on this provision] in the records of the Con­
stitutional Convention” 33 sheds little light either way 
on the intended correlation between Article I l l ’s “jury” 
and the features of the jury at common law.34 Indeed, 
pending and after the adoption of the Constitution, fears 
were expressed that Article I l l ’s provision failed to pre­
serve the common law right to be tried by a “ jury of 
the vicinage.” 35 That concern, as well as the concern

52 U. S. Const. Art. I l l , § 2, cl. 3.
33 Frankfurter & Corcoran, supra n. 27, at 969.
34 The only attention given the jury trial provisions involved such 

questions as whether the right should also be extended to civil cases, 
see Henderson, The Background of the Seventh Amendment, 80 
Harv. L. Rev. 289, 292-294 (1966), whether the wording should 
embrace the “ trial of all crimes” or the “ trial of all criminal offenses,” 
see Frankfurter & Corcoran, supra n. 27, at 969, and how to provide 
for the trial of crimes not committed in any state, id., at 969 n. 244. 
See 2 M. Farrand, Records of the Federal Convention 144, 173, 
187, 433, 438, 576, 587-588, 601, 628 (1911). See also 4 id., at 121 
(indexing all references to Art. I l l ,  §2, cl. 3 in Farrand’s records).

35 See F. Heller, supra n. 25, at 31-33, 93; Warren, History of 
the Federal Judiciary Act of 1789, 37 Harv. L. Rev. 49, 105 (1923). 
Technically, “vicinage” means neighborhood, and “vicinage of the 
jury” meant jury of the neighborhood or, in medieval England, 
jury of the county. See IV Blackstone, Commentaries *350-351. 
While Article III provided for venue, it did not impose the explicit 
juror-residence requirement associated with the concept of “vicinage.” 
See Maryland v. Brown, 295 F. Supp. 63, 80 (1969). In the Virginia 
Convention, Madison conceded that the omission was deliberate and 
defended it as follows:
“ It was objected yesterday, that there was no provision for a jury 
from the vicinage. If it could have been done with safety, it would



16 WILLIAMS v. FLORIDA

to preserve the right to jury in civil as well as criminal 
cases, furnished part of the impetus for introducing 
Amendments to the Constitution which ultimately re­
sulted in the jury trial provisions of the Sixth and 
Seventh Amendments. As introduced by James Madison 
in the House, the Amendment relating to jury trial in 
criminal cases would have provided that:

“The trial of all crimes . . . shall be by an impar­
tial jury of freeholders of the vicinage, with the 
requisite of unanimity for conviction, of the right 
of challenge, and other accustomed requisites . . . 33 * * 36

The Amendment passed the House in substantially this 
form, but after more than a week of debate in the 
Senate it returned to the House considerably altered.37 
While records of the actual debates which occurred in

not have been opposed. It might so happen that a trial would 
be impracticable in the county. Suppose a rebellion in a whole 
district, would it not be impossible t,o get a jury? The trial by 
jury is held as sacred in England as in America. There are de­
viations of it in England: yet greater deviations have happened 
here since we established our independence, than have taken place 
there for a long time, though it be left to the legislative discretion.
It is a misfortune in any case that this trial should be departed 
from, yet in some cases it is necessary. It must be therefore left 
to the discretion of the legislature to modify it according to circum­
stances. This is a complete and satisfactory answer.” 3 M. Far-
rand, Records of the Federal Convention 332 (1911).

361 Annals of Cong. 452 (1789).
37 The Senate Journal indicates that every clause in the House 

version of the proposed Amendment was deleted except the clause 
relating to grand jury indictment. Senate Journal, Sept. 4, 1789, 
1st Cong., 1st Sess. 71. A subsequent motion to restore the words 
providing for trial “by an impartial jury of the vicinage, with the 
requisite of unanimity for conviction, the right of challenge, and 
other accustomed requisites” failed of adoption. Senate Journal, 
Sept. 9, 1789, 1st Cong., 1st Sess. 77.



WILLIAMS v. FLORIDA 17

the Senate are not available,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.39 A con­
ference committee was appointed. As reported in a 
second letter by Madison on September 23, 1789, the 
Senate remained opposed to the vicinage requirement, 
partly because in their view the then-pending judiciary 
bill—which was debated at the same time as the Amend­
ments—adequately preserved the common-law vicinage 
feature, making it unnecessary to freeze that requirement 
into the Constitution. “The Senate,” wrote Madison: 

“are . . . inflexible in opposing a definition of the 
locality of Juries. The vicinage they contend is 
either too vague or too strict a term; too vague if 
depending on limits to be fixed by the pleasure of 
the law, too strict if limited to the county. It was 
proposed to insert after the word Juries, ‘with the 
accustomed requisites,’ leaving the definition to be 
construed according to the judgment of professional

38 The principal source of information on the proceedings of the 
Senate in the First Congress is the Journal of Senator Maclay of 
Pennsylvania, who unfortunately was ill during the Senate debate 
on the amendments. See Journal of William Maclay 144-151 
(1927); F. Heller, The Sixth Amendment 31-32 (1951).

39 Madison writes:
“The Senate have sent back the plan of amendments with some 

alterations, which strike, in my opinion, at the most salutary 
articles. In many of the States, Juries, even in criminal cases, are 
taken from the State at large; in others, from districts of consider­
able extent; in very few from the County alone. Hence a dislike 
to the restraint with respect to vicinage, which has produced a 
negative on that clause. . . . Several others have had a similar 
fate.”  Letter from James Madison to Edmund Pendleton, Sept. 
14, 1789, in 1 Letters and Other Writings of James Madison 491 
(1865).



18 WILLIAMS v. FLORIDA

men. Even this could not be obtained. . . . The 
Senate suppose, also, that the provision for vicinage 
in the Judiciary bill will sufficiently quiet the fears 
which called for an amendment on this point.” 40

The version which finally emerged from the Committee 
was the version which ultimately became the Sixth 
Amendment, ensuring an accused:

“the right to a speedy and public trial, by an 
impartial jury of the State and district wherein the 
crime shall have been committed, which district 
shall have been previously ascertained by law . . . .”

Gone were the provisions spelling out such common law 
features of the jury as “unanimity,” or “ the accustomed 
requisites.” And the “vicinage” requirement itself had 
been replaced by wording which reflected a compromise 
between broad and narrow definitions of that term, and 
which left Congress the power to determine the actual 
size of the “vicinage” by its creation of judicial districts.41

Three significant features may be observed in this 
sketch of the background of the Constitution’s jury trial 
provisions. First, even though the vicinage requirement 
was as much a feature of the common law jury as was 
the 12-man requirement,42 the mere reference to “ trial 
by jury” in Article III was not interpreted to include 
that feature. Indeed, as the subsequent debates over 
the Amendments indicate, disagreement arose over 
whether the feature should be included at all in its 
common law- sense, resulting in the compromise described 
above. Second, provisions w’hich would have explicitly

40 Letter from James Madison to Edmund Pendleton, Sept. 23, 
1789, in id., at 492-493. See generally F. Heller, supra n. 25, at 
28-34 (1951); Warren, supra n. 35, at 118-231.

41 See F. Heller, supra n. 25, at 93.
42 J. Proi'fatt, supra n. 23, at 119; 1 G. Curtis, History of the 

Constitution 23 (1863).



WILLIAMS v. FLORIDA 19

tied the “jury” concept to the “accustomed requisites” 
of the time were eliminated. Such action is concededly 
open to the explanation that the “accustomed requisites” 
were thought to be already included in the concept of 
a “ jury.” But that explanation is no more plausible 
than the contrary one: that the deletion had some sub­
stantive effect. Indeed, given the clear expectation that 
a substantive change would be effected by the inclusion 
or deletion of an explicit “vicinage” requirement, the 
latter explanation is, if anything, the more plausible. 
Finally, contemporary legislative and Constitutional pro­
visions indicate that where Congress wanted to leave no 
doubt that it was incorporating existing common law 
features of the jury system, it knew how to use express 
language to that effect. Thus, the Judiciary bill, signed 
by the President on the same day that the House and 
Senate finally agreed on the form of the Amendments 
to be submitted to the States, provided in certain cases 
for the narrower “vicinage” requirements which the 
House had wanted to include in the Amendments.43 
And the Seventh Amendment, providing for jury trial 
in civil cases, explicitly added that “no fact tried by a 
jury, shall be otherwise re-examined in any Court of the 
United States, than according to the common law.” 44

43 The Act provided in § 29:
“ [t]hat in eases punishable with death, the trial shall be had in 

the county where the offence was committed, or where that cannot 
be done without great inconvenience, twelve petit jurors at least 
shall be summoned from thence.”  Act of Sept. 24, 1789, c. 20, 
§ 29, 1 Stat. 88.

44 Similarly, the First Continental Congress resolved in October 
1774:

“that the respective colonies are entitled to the common law of 
England, and more especially to the great and inestimable privilege 
of being tried b}̂  their peers of the vicinage, according to the 
course of that law.”  1 Journals of the Continental Congress 69 
(Ford. ed. 1904) (emphasis added). And the Northwest Ordinance



20 WILLIAMS v. FLORIDA

We do not pretend to be able to divine precisely 
what the word “ jury” imported to the Framers, the 
First Congress, or the States in 1780. It may wrell be 
that the usual expectation -was that the jury would 
consist of 12,45 and that hence, the most likely con- * 1

of 1787 declared that the inhabitants of that territory should 
“always be entitled to the benefit of the writ of habeas corpus, 
and of the trial by jury . . . and judicial proceedings according 
to the course of the common law,”  Ordinance of 1787, Art. II,
1 U. S. C., at xxxvm  (1964) (emphasis added). See Capital 
Traction Co. v. Hof, 174 U. S. 1, 5-8 (concluding from these 
sources that the explicit reference to the “ common law” in the 
Seventh Amendment, referred to the rules of the common law of 
England, not the rules as modified by local or state practice).

43 One scholar, however, in investigating the reception of the 
English common law by the early American colonies, notes that 
the process:
“ was not so simple as the legal theory would lead us to assume. 
While their general legal conceptions were conditioned by, and 
their terminology derived from, the common law, the early colonists 
were far from applying it as a technical system, they often ignored 
it or denied its subsidiary force, and they consciously departed 
from many of its most essential principles.” Reinseh, The English 
Common Law in the Early American Colonies, in 1 Select Essaj^s 
in Anglo-American Legal History 415 (1907).

With respect to the jury trial in particular, while most of the 
colonies adopted the institution in its English form at an early 
date, more than one appears to have accepted the institution at 
various stages only with “ various modifications.” See Id., at 412. 
Thus Connecticut permitted majority decision in case of continued 
failure to agree, id., at 386, Virginia expressed regret at being 
unable to retain the “vicinage” requirement of the English jury, 
id., at 405, Pennsylvania permitted majority verdicts and employed 
juries of six or seven, id., at 398, and the Carolinas discontinued 
the unanimity requirement, 5 F. Thorpe, Federal and State Con­
stitutions 2781 (1909) (Art. 69, “ Fundamental Constitutions of 
Carolina” ). See also F. Heller, supra n. 25, at 13-21.

The States which had adopted Constitutions by the time of the 
Philadelphia Convention in 1787 appear for the most part to have 
either explicitly provided that the jury would consist of 12, see Va. 
Const, of 1776, § 8, in 7 F. Thorpe, Federal and State Constitutions



WILLIAMS v. FLORIDA 21

elusion to be drawn is simply that little thought was 
actually given to the specific question we face today. 
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. Nothing in this history suggests, then, that we do 
violence to the letter of the Constitution by turning to 
other than purely historical considerations to determine 
which features of the jury system, as it existed at com­
mon law, were preserved in the Constitution. The rele­
vant inquiry, as we see it, must be the function which 
the particular feature performs and its relation to the

3813 (1909), or to have subsequently interpreted their jury trial pro­
visions to include that requirement. In at least one instance involv­
ing conviction by eight jurors, a subsequent South Carolina decision 
interpreting the provision for trial by “ jury,” refused to declare 
the 12-man requirement an essential feature of that institution, 
immune from change by the legislature. See State v. Starling, 15 
Rich. 120, 134 (1867). The conviction was affirmed without decid­
ing the question, since the State had by that time adopted a 
Constitution specifically empowering the legislature to determine 
the number of jurors in certain inferior courts. South Carolina 
remains today one of apparently five States, including Florida, 
which provide for juries of less than 12 in felony cases where 
imprisonment for more than one year may be imposed. See La. 
Const. Art. VII, § 41; La. Crim. Proc. Code Ann. Art. 779 (West 
Supp. 1969); S. C. Const. Art. 1, §§ IS, 25; Art, 5, § 22; S. C. Code 
§§ 15-618, 15-612 (1962); Tex. Const. Art, 1, §§ 10, 15; Art. 5, § 17; 
Tex. Code Crim. Proc. Ann. Arts. 4.07, 37.02 (1966) ; Tex. Pen. Code 
Ann. Art, 1148 (1961); Utah Const. Art, 1, §§10, 12; Utah Code 
Ann. §7 8 ^ 6 -5  (1953).

In addition, it appears that at least nine States presently provide 
for less than 12-man juries in trials of certain offenses carrying 
maximum penalties of one year’s imprisonment. See Brief for 
Appellee, at A13-A15, Baldwin v. New York, ante, p. -—  (collecting 
statutory provisions). See also 17 Mass. L. Q. No. 4, 12 (1932) 
(noting States which have interpreted the “ right of trial by jury” 
to permit trial by less than 12 in certain cases). For a “ poll of 
state practice,” see M b . Justice  H a r la n ’s concurring opinion, post, 
at 6, 20 and App.



22 WILLIAMS v. FLORIDA

purposes of the jury trial. Measured by this standard, 
the 12-man requirement cannot be regarded as an in­
dispensable component of the Sixth Amendment.

The purpose of the jury trial, as we noted in Duncan, 
is to prevent oppression by the Government, “Provid­
ing an accused with the right to be tried by a jury of 
his peers gave him an inestimable safeguard against the 
corrupt or overzealous prosecutor and against the com­
pliant, biased, or eccentric judge.” Duncan v. Louisiana, 
supra, at 156. Given this purpose, the essential feature 
of a jury obviously lies in the interposition between 
the accused and his accuser of the common-sense judg­
ment of a group of laymen, and in the community 
participation and shared responsibility which results 
from that group’s determination of guilt or innocence. 
The performance of this role is not a function of the 
particular number of the body which makes up the 
jury. 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 com­
munity. But we find little reason to think that these 
goals are in any meaningful sense less likely to be 
achieved when the jury numbers six, than when it num­
bers 12— particularly if the requirement of unanimity is 
retained.46 And, certainly the reliability of the jury

46 We intimate no view whether or not the requirement of 
unanimity is an indispensible element of the Sixth Amendment 
jury trial. While much of the above historical discussion applies 
as well to the unanimity as to the 12-man requirement, the former, 
unlike the latter, may well serve an important role in the jury 
function, for example, as a device for insuring that the Government 
bear the heavier burden of proof. See Hibdon v. United States, 
204 F. 2d 834, 838 (C. A. 6th Cir. 1953); Tamm, supra n. 25, 
at 139. But cf. Comment, Waiver of Jury Unanimity— Some 
Doubts About Reasonable Doubt, 21 U. Chi. L. Rev. 438, 441-443



as a factfinder hardly seems likely to be a function 
of its size.

It might be suggested that the 12-man jury gives 
a defendant a greater advantage since he has more 
“chances” of finding a juror who will insist on acquittal 
and thus prevent conviction. But the advantage might 
just as easily belong to the State, which also needs 
only one juror out of twelve insisting on guilt to prevent 
acquittal.47 What few experiments have occurred—usu­
ally in the civil area—indicate that there is no discern­
ible difference between the results reached by the two 
different-sized juries.48 In short, neither currently avail­
able evidence nor theory49 suggests that the 12-man

WILLIAMS v. FLORIDA 23

(1954). See generally ABA Project on Minimum Standards for 
Criminal Justice, Standards Relating to Trial by Jury 42-45 (tent, 
draft May 1968).

47 It is true, of course, that the “ hung jury” might be thought to 
result in a minimal advantage for the defendant, who remains uncon­
victed and who enjoys the prospect that the prosecution will even­
tually be dropped if subsequent juries also “ hang.” Thus a 100-man 
jury would undoubtedly be more favorable for defendants than a 12- 
man jury. But when the comparison is between 12 and six, the odds 
of continually “ hanging” the jury seem slight, and the numerical 
difference in the number needed to convict seems unlikely to inhere 
perceptibly to the advantage of either side.

48 See Wiehl, supra n. 25, at 40-41; Tamm, supra n. 25, at 134- 
136; Cronin, Six-Member Juries in District Courts, 2 Boston B. J. 
27 (1958); Six-member Juries Tried in Massachusetts District Court, 
42 J. Am. Jud. Soc. 138 (1958). See also New Jersey Experiments 
with Six-Man Jury, 9 Bull, of the Section of Jud. Ad. of the ABA 
(May 1966); Phillips, A Jury of Six in All Cases, 30 Conn. B. J. 354 
(1956).

49 Studies of the operative factors contributing to small group 
deliberation and decision-making suggest that jurors in the minority 
on the first ballot are likely to be influenced by the proportional 
size of the majority aligned against them. See H. Kalven & H. 
Zeisel, The American Jury 462-463; 488-489 (1966); C. Hawkins, 
Interaction and Coalition Realignments in Consensus-Seeking Groups: 
A Study of Experimental Jury Deliberation 13, 146, 156, Aug. 17,



24 WILLIAMS v. FLORIDA

jury is necessarily more advantageous to the defendant 
than a jury composed of fewer members.

Similarly, while in theory the number of viewpoints 
represented on a randomly selected jury ought to in­
crease as the size of the jury increases, in practice the 
difference between the 12-man and the six-man jury 
in terms of the cross section of the community repre­
sented seems likely to be negligible. Even the 12- 
man jury cannot insure representation of every distinct 
voice in the community, particularly given the use of 
the peremptory challenge. As long as arbitrary exclu­
sions of a particular class from the jury rolls are for­
bidden, see, e. g., Carter v. Jury Commission, 396 U. S. 
320, 329-330 (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.

We conclude, in short, as we began: the fact that the 
jury at common law was composed of precisely 12 is an 
historical accident, unnecessary to effect the purposes of 
the jury system and wholly without significance “except 
to mystics.” Duncan v. Louisiana, supra, at 182 (H ar­
lan, J., dissenting). To read the Sixth Amendment as 
forever codifying a feature so incidental to the real pur­
pose of the Amendment is to ascribe a blind formalism

1960 (unpublished thesis on file at Library of Congress); ef. Aseh, 
Effects of Group Pressure Upon the Modification and Distortion 
of Judgments, in Swanson, Newcombe, & Hartley, Readings in Social 
Psychology (1952). See generally, Note, On Instructing Deadlocked 
Juries, 78 Yale L. J. 108 and n. 30 (and authorities cited), 110-111 
(1968). Thus if a defendant needs initially to persuade four jurors 
that the State has not met its burden of proof in order to escape 
ultimate conviction by a 12-man jury, he arguably escapes by ini­
tially persuading half that number in a six-man jury: random reduc­
tion, within limits, of the absolute number of the jury would not 
affect the outcome. See also C. Joiner, Civil Justice and the Jury 
31, 83 (1962) (concluding that the deliberative process should be 
the same in either the six or 12-man jury).



to the Framers which would require considerably more 
evidence than we have been able to discover in the 
history and language of the Constitution or in the rea­
soning of our past decisions. We do not mean to in­
timate that legislatures can never have good reasons 
for concluding that the 12-man jury is preferable to the 
smaller jury, or that such conclusions—reflected in the 
provisions of most States and in our federal system50— 
are in any sense unwise. Legislatures may well have 
their own views about the relative value of the larger 
and smaller juries, and may conclude that, wholly apart 
from the jury’s primary function, it is desirable to spread 
the collective responsibility for the determination of guilt 
among the larger group. In capital cases, for example, 
it appears that no State provides for less than 12 jurors— 
a fact which suggests implicit recognition of the value 
of the larger body as a means of legitimating society’s 
decision to impose the death penalty. Our holding does 
no more than leave these considerations to Congress and 
the States, unrestrained by an interpretation of the Sixth 
Amendment which would forever dictate the precise 
number which can constitute a jury. Consistent with 
this holding, we conclude that petitioner’s Sixth Amend­
ment rights, as applied to the States through the Four­
teenth Amendment, were not violated by Florida’s deci­
sion to provide a six-man rather than a 12-man jury. 
The judgment of the Florida District Court of Appeal is

Affirmed.

M r. Justice Blackmun took no part in the consid­
eration or decision of this case.

WILLIAMS v. FLORIDA 25

“ See Fed. Rule Grim. Proe. 23 (“ [jjuries shall be of 12” ).



APPENDIX

Fla. Rule Crim. Proc. 1.200:
“Upon the written demand of the prosecuting 

attorney, specifying as particularly as is known to 
such prosecuting attorney, the place, date and time 
of the commission of the crime charged, a defendant 
in a criminal case who intends to offer evidence of 
an alibi in his defense shall, not less than ten days 
before trial or such other time as the court may 
direct, file and serve upon such prosecuting at­
torney a notice in writing of his intention to claim 
such alibi, which notice shall contain specific in­
formation as to the place at which the defendant 
claims to have been at the time of the alleged 
offense and, as particularly as is known to defendant 
or his attorney, the names and addresses of the 
witnesses by whom he proposes to establish such 
alibi. Not less than five days after receipt of de­
fendant’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 prose­
cuting attorney) of the witnesses the State proposes 
to offer in rebuttal to discredit the defendant’s alibi 
at the trial of the cause. Both the defendant and 
the prosecuting attorney shall be under a continu­
ing duty to promptly disclose the names and ad­
dresses of additional witnesses which come to the 
attention of either party subsequent to filing their 
respective witness lists as provided in this rule. 
If a defendant fails to file and serve a copy of such 
notice as herein required, the court may exclude 
evidence offered by such defendant for the purpose 

26



WILLIAMS v. FLORIDA 27

of proving an alibi, except the testimony of the 
defendant himself. If such notice is given by a 
defendant, the court may exclude the testimony 
of any witness offered by the defendant for the 
purpose of proving an alibi if the name and ad­
dress of such witness as particularly as is known 
to defendant or his attorney is not stated in such 
notice. If the prosecuting attorney fails to file and 
serve a copy on the defendant of a list of witnesses 
as herein provided, the court may exclude exidence 
offered by the state in rebuttal to the defendant’s 
alibi evidence. If such notice is given by the prose­
cuting attorney, the court may exclude the testi­
mony of any witness offered by the prosecuting at­
torney for the purpose of rebutting the defense of 
alibi if the name and address of such witness as 
particularly as is known to the prosecuting attorney 
is not stated in such notice. For good cause shown 
the court may waive the requirements of this rule.”



SUPREME COURT OF THE UNITED STATES
No. 927.— October T erm, 1969

Johnny Williams, 
Petitioner, 

v.
State of Florida..

On Writ of Certiorari to the District 
Court of Appeal of Florida, Third 
District.

[June 22, 1970]

M r. Chief Justice Burger, concurring.
I join fully in M r. Justice W hite ’s opinion for the 

Court. I see an added benefit to the alibi notice rule 
in that it will serve important functions by way of 
disposing of cases without trial in appropriate circum­
stances—a matter of considerable importance when 
courts, prosecution offices and legal aid and defender 
agencies are vastly overworked. The prosecutor upon 
receiving notice will, of course, investigate prospective 
alibi witnesses. If he finds them reliable and unim­
peachable he will doubtless re-examine his entire case 
and this process wrould very likely lead to dismissal of the 
charges. In turn he might be obliged to determine 
why false charges were instituted and where the break­
down occurred in the examination of evidence which led 
to a charge.

On the other hand, inquiry into a claimed alibi defense 
may reveal it to be contrived and fabricated and the 
witnesses accordingly subject to impeachment or other 
attack. In this situation defense counsel would be 
obliged to re-examine his case and, if he found his client 
has proposed the use of false testimony, either seek to 
withdraw from the case or try to persuade his client to 
enter a plea of guilty, possibly by plea discussions which 
could lead to disposition on a lesser charge.



2 WILLIAMS v. FLORIDA

In either case the ends of justice will have been served 
and the processes expedited. These are the likely con­
sequences of an enlarged and truly reciprocal pretrial 
disclosure of evidence and the move away from the 
“ sporting contest” idea of criminal justice.



SUPREME COURT OF THE UNITED STATES
Nos. 188 and 927.— October T erm, 1969

Robert Baldwin, Appellant,
On Appeal From the Court 

I of Appeals of New York.188188 v.
State of New York.

Johnny Williams, Petitioner,
927927 v.

State of Florida.

On Writ of Certiorari to 
the District Court of Ap­
peal of Florida, Third 
District.

[June 22, 1970]

M r . .Justice Harlan, dissenting in No. 188, and con­
curring in No. 927.

In Duncan v. Louisiana, 391 U. S. 145 (1968), the 
Court held, over my dissent and that of M r . Justice 
Stewart, that a state criminal defendant is entitled to 
a jury trial in any case which, if brought in a federal 
court, would require a jury under the Sixth Amendment. 
Today the Court holds, in No. 188, Baldwin v. New 
York, that New York cannot constitutionally provide 
that misdemeanors carrying sentences up to one year 
shall be tried in New York City without a jury.1 At 
the same time the Court holds in No. 927, Williams v. 
Florida, that Florida’s six-member jury statute satisfies 
the Sixth Amendment as carried to the States b y  the 
Duncan holding.1 2 The necessary consequence of this 
decision is that 12-member juries are not constitutionally 
required in federal criminal trials either.

The historical argument by which the Court under­
takes to justify its view that the Sixth Amendment does 
not require 12-member juries is, in my opinion, much

1 Outside of New York City, such cases are triable before six- 
membef juries.

2 Florida provides for a jury of 12 in capital cases and a six-member
jury “ to try all other criminal cases.” Fla. Stat. § 913.10 (1) 
(1967).



2 BALDWIN v. NEW YORK

too thin to mask the true thrust of this decision. The 
decision evinces, I think, a recognition that the “incor- 
porationist” view of the Due Process Clause of the Four­
teenth Amendment, which underlay Duncan and is now 
carried forward into Baldwin, must be tempered to allow 
the States more elbow room in ordering their own crim­
inal systems. With that much I agree. But to accom­
plish this by diluting constitutional protections within 
the federal system itself is something to which I cannot 
possibly subscribe. Tempering the rigor of Duncan 
should be done forthrightly, by facing up to the fact that 
at least in this area the “ incorporation” doctrine does 
not fit well with our federal structure, and by the same 
token that Duncan was wrongly decided.

I would sustain both the Florida and New York stat­
utes on the constitutional premises discussed in my 
dissenting opinion in Duncan, 391 U. S., at 161 et seq. 
In taking that course in Baldwin, I cannot, in a matter 
that goes to the very pulse of sound constitutional adju­
dication, consider myself constricted by stare decisis.3

Accordingly, I dissent in No. 188 and, as to the jury 
issue, concur in the result in No. 927. Given Malloy 
v. Hogan, 378 U. S. 1 (1964), I join that part of the 
Court’s opinion in No. 927 relating to the Florida “alibi” 
procedure.

I
As a predicate for my conclusions, it is useful to map 

the circuitous route the Court has taken in order to reach 
its results. In both cases, more patently in Williams

3 As Mr. Justice Frankfurter said, speaking for the Court:
. . stare decisis embodies an important social policy. It repre­

sents an element of continuity in law, and is rooted in the psycho­
logical need to satisfy reasonable expectations. But stare decisis 
is a principle of policy and not a mechanical formula of adherence 
to the latest decision, however recent and questionable, when such 
adherence involves collision with a prior doctrine more embracing 
in its scope, intrinsically sounder, and verified by experience.” See 
Helvering v. Hallock, 309 U. S. 106, 119 (1940).



BALDWIN v. NEW YORK 3

than in Baldwin, the Court has indiscriminately jumbled 
together the history of jury trial practice in both the state 
and federal systems, rather than taking as its point of 
departure the language in which the federal guarantee 
is expressed and the historical precedent that brings it 
to life. The consequence of this inverted approach to 
interpreting the Sixth Amendment results, fortuitously,4 
in Baldwin in a Sixth Amendment rule that would be 
reached under the correct approach, given the “incor- 
porationist” philosophy of Duncan, but, unhappily, im­
poses it on the one jurisdiction in the country that has 
seen fit to do otherwise; and in Williams results in a 
Sixth Amendment rule that could only be reached by 
standing the constitutional dialetic on its head.

A
To the extent that the Court premises its conclusions 

in the Baldwin case on federal precedent and the 
common-law practice, I agree that the federal right to 
jury trial attaches where an offense is punishable by as 
much as six months’ imprisonment. I think this follows 
both from the breadth of the language of the Sixth 
Amendment, which provides for a jury in “all criminal 
prosecutions,” and the evidence of historical practice. 
In this regard I believe that contemporary usage in the 
States is of little, if any, significance.5 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.

4 While all States except New York provide for jury trials for 
crimes carrying sentences of six months or more, there is a good 
deal of diversity as to the number of jurors and the stage at which 
it attaches.

5 After concluding, relying on this Court’s prior decisions that the 
jury trial required by the Sixth Amendment applies only to “ serious” 
as opposed to “ petty” offenses, the Court defines those terms by 
perfunctory reference to history and a survey of prevailing state 
rules. See No. 188, ante, at 5-6.



4 BALDWIN v. NEW YORK

It is to the distinction between “petty” and “ serious” 
offenses, rooted in the common law, that this Court has 
looked to ascertain the metes and bounds of the federal 
right guaranteed by the Sixth Amendment. See District 
of Columbia v. Clauians, 300 U. S. 617 (1937); Schick 
v. United States, 195 U. S. 65 (1904); Callan v. Wilson, 
127 U. S. 540, 552 (1888). Since the conventional, if 
not immutable practice at common law appears to have 
been to provide juries for offenses punishable by fines 
of more than £ 100 or sentences to hard labor of more 
than six months in prison, see Frankfurter and Corcoran, 
Petty Federal Offenses and the Constitutional Guaranty 
of Trial by Jury, 39 Harv. L. Rev. 917 (1926),e I think it 
appropriate to draw the line at six months in federal 
cases,6 7 although, for reasons to follow, I would not en­
cumber the States by this requirement.8

6 “ The range of severity of punishment in summary trials has 
been defined by limiting jurisdiction to the imposition of fines up 
to a hundred pounds and sentences with hard labor up to six 
months.” Id., at 934. The practice in the Colonies was not uniform 
but it is apparent that the line was drawn at six months in most 
instances. See District of Columbia v. Claivans, supra, at 626 nn. 
2, 3.

7 While this Court has said that the most significant index to the 
seriousness of an offense is the degree of penalty that attaches, 
see Frank v. United States, 395 U. S. 147, 148 (1969); District of 
Columbia v. Clawans, supra, it should be recalled that this is not 
alone determinative and that the “apportioned punishment is both 
a consequence of the minor quality of the misconduct and an index 
of the community’s moral judgment upon it.” Frankfurter & 
Corcoran, supra. In Clawans the Court held the severity of pun­
ishment was not determinative when the offense by its own nature is 
not considered grave. 300 U. S., at 625; see also Callan v. Wilson, 
supra, at 556; Schick v. United States, supra, where this Court 
noted that the “ nature” of the offense and the severity of punish­
ment are two distinct considerations. Compare the House debate 
in 1930 over a bill to provide for a trial before federal magistrates 
for crimes of a petty nature, 72 Cong. Rec. 9991-9994 (1930); see

[.Footnote 8 is on page 5]



BALDWIN v. NEW YORK 5

B
In Williams the Court strangely does an about-face. 

Rather than bind the States by the hitherto undeviating 
and unquestioned federal practice of 12-member juries, 8

also H. Rep. No. 1699 (71st Cong., 2d Sess., 1930) (Minority 
views), Comments, ABA Project on Minimum Standards for Crim­
inal Justices, Trial by Jury 21 (Tent. Dr. 1968); Comment, The 
Petty Offense Category and Trial by Jury, 40 Yale L. J. 1303 
(1931). I would reserve the question as to whether a jury would 
be required in a federal case for a particular offense not punish­
able by more than six months in prison.

8 Nor do I think it offends the Equal Protection Clause for New 
York not to provide juries to hear offenses punishable by six months 
in New York City but to have such a provision for trials else­
where in the State. In Salsburg v. Maryland, 346 U. S. 545 (1954), 
and Missouri v. Lewis, 101 U. S. 22 (1879), this Court upheld the 
right of a State to adapt procedures to the differing requirements 
of territorial subdivisions. In Salsburg the Court quoted and re­
affirmed the principles set forth in Missouri:

“There is nothing in the Constitution to prevent any State from 
adopting any system of laws or judicature it sees fit. for all or part 
of its territory. If the State of New York, for example, should 
see fit to adopt the civil law and its method of procedure for New 
York City and the surrounding counties, and the common law and 
its method of procedure for the rest of the State, there is nothing 
in the Constitution of the Untied States to prevent its doing so . . .  .

“ Where part of a State is thickly settled, and another part has 
but few inhabitants, it may be desirable to have different systems 
of judicature for the two portions,—trial by jury in one, for example, 
and not in the other. Large cities may require a multiplication 
of courts and a peculiar arrangement of jurisdictions. It would be 
an unfortunate restriction of the powers of the State government 
if it could not, in its discretion, provide for these various exigencies.” 
Missouri v. Lewis, 101 U. S. 22, 31-32 (1879), quoted at 346 U. S., 
at 551, 551 n. 6; see also Ohio v. Akron Park District, 281 U. S. 74, 
81 (1930); Ocampo v. United States, 234 U. S. 91, 98-99 (1914).”

The disproportionate number of misdemeanor cases that now clog 
New York City courts, see Part III, infra, creates a difference of a 
magnitude that more than justifies the differences in treatment 
between city and non-city defendants.



6 BALDWIN v. NEW YORK

the Court holds, based on a poll of state practice, that 
a six-man jury satisfies the guarantee of a trial by jury 
in a federal criminal system and consequently carries 
over to the States. This is a constitutional renvoi. 
With all respect, I consider that before today it would 
have been unthinkable to suggest that the Sixth Amend­
ment’s right to a trial by jury is satisfied by a jury of six, 
or less, as is left open by the Court’s opinion in Williams, 
or by less than a unanimous verdict, a question also 
reserved in today’s decision.

1. The Court, in stripping off the livery of history from 
the jury trial, relies on a two-step analysis. With ardu­
ous effort the Court first liberates itself from the “ intent 
of the Framers” and “the easy assumption in our past 
decisions that if a given feature existed in a jury at 
common law in 1789, then it was necessarily preserved 
in the Constitution.” Ante, at 14-15. Unburdened by 
the yoke of history the Court then concludes that the 
policy protected by the jury guarantee does not require 
its perpetuation in common-law form.

Neither argument is, in my view, an acceptable reason 
for disregarding history and numerous pronouncements 
of this Court that have made “the easy assumption” that 
the Sixth Amendment’s jury was one comprised of 12 
individuals. Even assuming ambiguity as to the intent 
of the Framers,9 it is common sense and not merely the

9 The Court’s conclusions from the historical materials, by its own 
admission, can hardly be characterized as solid. The entire argu­
ment seems to flow from the fact that the Senate Committee substi­
tuted the present language of the Sixth Amendment for the more 
specific House version that incorporated the unanimity requirement 
and expressly tied the jury to “ other accustomed requisites.”  But 
the meaning of this change is wholly speculative,, for, apart from the 
“ vicinage” requirement, there is no concrete evidence cited by the 
Court to show that the Senate opposed the more likely features of the 
Madison version adopted by the House. In the context of an 
amendment notable for its sparseness of language, a more likely ex­
planation of the Senate’s action is that it was streamlining the Mad­



BALDWIN v. NEW YORK 7

blessing of the Framers that explains this Court’s fre­
quent reminders that “The interpretation of the Consti­
tution of the United States is necessarily influenced by 
the fact that its provisions are framed in the language of 
the English common law, and are to be read in light of 
history.” Smith v. Alabama, 124 U. S. 465, 478 (1888). 
This proposition was again put forward by Mr. Justice 
Gray speaking for the Court in United States v. Wong 
Kim Ark, where the Court was called upon to define 
the term “ citizen” as used in the Constitution. “The 
Constitution nowhere defines the meaning of these words 
[the Citizenship Clause]. . . .  In this, as in other respects, 
it must be interpreted in light of the common law, the 
principles and history of which were familiarly known 
to the Framers of the Constitution.” 169 U. S. 649, 
654 (1898). History continues to be a wellspring of con­
stitutional interpretation. Indeed, such history was even 
invoked by the Court in such decisions as Townsend v. 
Sain, 372 U. S. 293 (1963), and Fay v. Noia, 372 U. S. 391 
(1963), where it purported to interpret the constitutional

ison version on the assumption that the most prominent features of 
the jury would be preserved as a matter of course. This inter­
pretation of the events is supported by the fact that the only 
specifically objectionable feature of the common law jury— the 
vicinage requirement— was pre-empted by language providing for a 
trial by a jury of the district, thus leaving the remaining attributes 
undefined in face of the distinct expectation that those charged with 
interpretation would, look to the common law. Nor is this explana­
tion rendered less forceful by the fact, noted by the Court, that 
“ reception” of the common-law jury did not unfailingly mean 12 
in early colonial times. As the Court itself acknowledges, the States 
that had constitutions in 1787 provided for juries of 12. The 
Court’s other arguments— (1) that simple reference to a jury in 
Article III was not necessarily thought to mean to the Framers 
a common-law jury in light of the need felt to add the Amendments 
and Madison’s more elaborate proposal for the Sixth Amendment; 
and, (2) that the allusion to “ common law” in the Seventh Amend­
ment suggests that it is not the backdrop for the Sixth Amendment 
jury— are too remote to require rejoinder.



8 BALDWIN v. NEW YORK

provision for habeas corpus according to the “historic 
conception of the writ” and took note that the guarantee 
was one rooted in common law and should be so inter­
preted.10 11 Cf. United States v. Brown, 381 U. S. 437, 458 
(1965). In accordance with these precepts, sound con­
stitutional interpretation requires, in my view, fixing 
the federal jury as it was known to the common law.

It is, of course, true that history should not imprison 
those broad guarantees of the Constitution whose proper 
scope is to be determined in a given instance by a blend 
of historical understanding and the adaptation of pur­
pose to contemporary circumstances. Cf. Katz v. United 
States, 389 U. S. 347 (1968); Estes v. Texas, 381 U. S. 
532, 595-596 (1965) (concurring opinion); Olmstead v. 
United States, 277 U. S. 428, 471 (1928) (Mr. Justice 
Brandeis, dissenting); Lovett v. United States, 328 U. S. 
303, 318 (1946) (concurring opinion of Mr. Justice Frank­
furter).11 Cardozo, The Nature of the Judicial Process 
(1923). This is not, however, a circumstance of giving 
a term “a meaning not necessarily envisioned . . .  so as to 
adopt [it] to circumstances . . . uncontemplated.” See 
my concurring opinion in Welsh v. United States, ----

10 While I disagreed with the Court on these occasions, my differ­
ences with the majority went to the conclusions that could properly 
be drawn from the common-law history of the writ and the prece­
dents in this Court, not to the jurisprudential approach that took 
history as a point of departure.

11 “ Broadly speaking, two types of constitutional claims come 
before this Court. Most constitutional issues derive from the broad 
standards of fairness written into the Constitution . . . .  Such 
questions, by their very nature, allow a relatively wide play for 
individual legal judgment. The other class gives no such scope. 
For this second class of constitutional issues derives from very spe­
cific provisions of the Constitution. . . . They were defined by 
history. Their meaning was so settled by history that definition 
was superflous . . . .” 328 U. S., at. 321.



BALDWIN v. NEW YORK 9

U. S .---- , -----(1970). The right to a trial by jury, how­
ever, has no enduring meaning apart, from historical form.

The second aspect of the Court’s argument is that the 
number “ 12” is a historical accident—even though one 
that has recurred without interruption since the 14th 
century (see ante, 11)—and is in no way essential to the 
“purposes of the jury trial” which is to “safeguard against 
the corrupt or overzealous prosecutor and against the 
compliant, biased, or eccentric judge.” Ante, at 21-22. 
Thus history, the Court suggests, is no guide to the mean­
ing of those rights whose form bears no relation to the 
policy they reflect. In this context the 12-member fea­
ture of the classical common-law jury is apparently re­
garded by the Court as mere adornment.

This second justification for cutting the umbilical cord 
that ties the form of the jury to the past is itself, as 
I see it, the most compelling reason for maintaining 
that guarantee in its common-law form. For if 12 jurors 
are not essential, why are six? What if New York, now 
compelled by virtue of Baldwin to provide juries for the 
trial of misdemeanors, concludes that three jurors are 
adequate “interposition between the accused and his 
accuser of the common-sense judgment of a group of 
laymen,” and constitute adequate “community partici­
pation and [provide] shared responsibility which results 
from that group’s determination of guilt or innocence” ? 
The Court’s elaboration of what is required provides 
no standard and vexes the meaning of the right to a 
jury trial in federal courts, as wTell as state courts, by 
uncertainty. Can it be doubted a unanimous jury of 
12 provides a greater safeguard than a majority vote of 
six? The uncertainty that will henceforth plague the 
meaning of trial by jury is itself a further sufficient reason 
for not hoisting the anchor to history.

2. The circumvention of history is compounded by the 
cavalier disregard of numerous pronouncements of this



10 BALDWIN v. NEW YORK

Court that reflect the understanding of the jury as one 
of 12 members and have fixed expectations accordingly. 
Thus in Thompson v. Utah a unanimous Court an­
swered in the affirmative the question whether the 
Sixth Amendment jury “ is a jury constituted, as it was at 
common law, of twrelve persons, neither more nor less.” 
170 U. S. 343, 349 (1898),12 and it appears that before 
Duncan no Justice of this Court has seen fit to question 
this holding, one that has often been reiterated. See 
Patton v. United States, 281 U. S. 276, 288 (1930), where 
the Court reaffirmed earlier pronouncements and stated 
that the Sixth Amendment jury is characterized by three 
essential features: “ (1) that the jury should consist of 
twelve men, neither more nor less; (2) that the trial 
should be in the presence and under the superintendence 
of a judge having power to instruct them as to the 
law and advise them as to the facts; and, (3) that the 
verdict should be unanimous.” See also Maxwell v. 
Doiv, 176 U. S. 581, 586 (1900); Rassmusse?i v. United 
States, 197 U. S. 516, 527 (1905); Andres v. United States, 
333 U. S. 740, 748 (1948) (unanimity).13 As Mr. Justice

12 The significance of this pronouncement cannot be minimized. 
The holding that retrial by a jury of eight was an ex post facto 
law is perforce built upon the conclusion that the jury of 12 was 
a right of substance. If the right were merely a procedure man­
dated by statute, it would not have required the ex post facto 
holding.

13 The Federal Rules of Criminal Procedure provide for a jury 
of 12, Fed. Rule Crim. Proc. 23, and as recently as last year 
lower federal courts have assumed this Court’s commitment to 
the unanimous verdict of 12. United States v. Fioravanti, 412 
F. 2d 407, 418 (C. A. 3d Cir. 1969); Williams v. United States, 
332 F. 2d 36 (C. A. 7th Cir. 1964); see also, e. g., United 
States v. Virginia Erection Co., 335 F. 2d 868, 870 (C. A. 4th 
Cir. 1964); United States v. Goldberg, 330 F. 2d 30, 42 (C. A. 
9th Cir. 1964); Rogers v. United States, 319 F. 2d 5 (C. A. 
7th Cir. 1963); Fournier v. Gonzalez, 269 F. 2d 26 (C. A. 1st Cir. 
1959); Billici v. United States, 87 U. S. App. D. C. 274, 184 F. 2d



BALDWIN v. NEW YORK 11

Frankfurter stated in Gore v. United States, 357 U. S. 
386, 392 (1958), in applying a constitutional provision 
“rooted in history . . .  a long course of adjudication in 
this Court carries impressive authority.”

The principle of stare decisis is multifaceted. It is a 
solid foundation for our legal system; yet care must 
be taken not to use it to create an unmovable structure. 
It provides the stability and predictability required 
for the ordering of human affairs over the course of 
time and a basis of “public confidence in the judiciary 
as a source of impersonal and reasoned judgments.”
Moragne v. State Marine Lines, ----- U. S. -----, —
(1970). See also Helvering v. Hallock, supra; Boys
Markets, Inc. v. Retail Clerks,---- U. S .----- (1970); Hertz
v. Woodman, 218 U. S. 205, 212 (1910); Burnet v. Coro­
nado Oil & Gas Co., 285 U. S. 293, 405M06 (1932) (Mr. 
Justice Brandeis, dissenting). Woodenly applied, how­
ever, it builds a stockade of precedent that confines 
the law by rules, ill-conceived when promulgated, 
or if sound in origin, unadaptable to present circum­
stances. No precedent is sacrosanct and one should 
not hesitate to vote to overturn this Court’s pre­
vious holdings—old or recent—or reconsider settled 
dicta where the principles announced prove either 
practically (e. g., Moragne v. State Marine Lines, supra; 
Boys Markets v. Retail Clerks, supra), or jurispruden- 
tially (e. g., Desist v. United States, 394 L. S. 244, 256 
(1969) (dissenting opinion)) unworkable, or no longer 
suited to contemporary life (e. g., Katz v. United States, 
389 U. S. 347, 360 (1967) (concurring opinion)). See also
Welsh v. United States,---- U. S .------(1970); Chimel v.
California, 395 U. S. 752 (1969); Marchetti v. United 
States, 390 U. S. 1 (1968); Estes v. Texas, supra, 381

394 (1950); Horne v. United States, 264 F. 2d 40 (C. A. 5th 
Cir. 1959); Hihdon v. United States, 204 F. 2d 834 (C. A. 6th Cir. 
1953).



12 BALDWIN v. NEW YORK

U. S., at 595-596; Warden v. Hayden, 387 U. S. 294 
(1967); Swift & Co. v. Wickham, 382 U. S. I l l  (1965); 
James v. United States, 366 U. S. 213, 241 (1961). In­
deed, it is these considerations that move me to depart 
today from the framework of Duncan. 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. 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 change, let alone in­
capable of being demonstrated wrong. The decision in 
Williams, however, casts aside workability and relevance 
and substitutes uncertainty. The only reason I can 
discern for today’s decision that discards numerous judi­
cial pronouncements and historical precedent that sound 
constitutional interpretation would look to as controlling, 
is the Court’s disquietude with the tension between the 
jurisprudential consequences wrought by “ incorporation” 
in Duncan and Baldwin and the counter-pulls of the 
situation presented in Williams which presents the pros­
pect of invalidating the common practice in the States of 
providing less than a 12-member jury for the trial of 
misdemeanor cases.

II
These decisions demonstrate that the difference be­

tween a “due process” approach, that considers each 
particular case on its own bottom to see whether the 
right alleged is one “ implicit in the concept of ordered 
liberty,” see Palko v. Connecticut, 302 U. S. 319, 325 
(1937), and “selective incorporation” is not an abstract 
one whereby different verbal formulae achieve the same 
results. The internal logic of the selective incorpora­



BALDWIN v. NEW YORK 13

tion doctrine cannot be respected if the Court is both 
committed to interpreting faithfully the meaning of the 
federal Bill of Rights and recognizing the governmental 
diversity that exists in this country. The “backlash” 
in Williams exposes the malaise, for there the Court 
dilutes a federal guarantee in order to reconcile the logic 
of “ incorporation,” the “jot-for-jot and case-for-case” 
application of the federal right to the States, with the 
reality of federalism. Can one doubt that had Con­
gress tried to undermine the common law right to trial 
by jury before Duncan came on the books the history 
today recited would have barred such action? Can we 
expect repeat performances when this Court is called 
upon to give definition and meaning to other federal 
guarantees that have been “incorporated” ?

In Ker v. California, 374 U. S. 1 (1963), I noted in 
a concurring opinion that “The rule [of “incorporation” ] 
is unwise because the States, with their differing law 
enforcement problems, should not be put in a constitu­
tional strait jacket, . . . And if the Court is prepared 
to relax [federal] standards in order to avoid unduly 
fettering the States, this would be in derogation of law 
enforcement standards in the federal system . . . .  Id., 
at 45-46. Only last Term in Chimel v. California, supra, 
I again expressed my misgivings that ’ ’incorporation” 
would neutralize the potency of guarantees in federal 
courts in order to accommodate the diversity of our fed­
eral system. I reiterate what I said in dissent in Dun­
can, 391 U. S,, at 161: “Neither history nor sense supports 
using the Fourteenth Amendment to put the States in a 
constitutional strait jacket with respect to their own 
development in the administration of criminal and civil 
law.” Since we now witness the first major attempt to 
wriggle free of that “strait jacket,” it is appropriate, I 
think, to step back and view in perspective how far the 
incorporation doctrine has taken us, and to put the spot­



14 BALDWIN v. NEW YORK

light on a constitutional revolution that has inevita­
bly become obscured by the process of case-by-case 
adjudication.

A
The recent history of constitutional adjudication in 

state criminal cases is the ascendancy of the doctrine of ad 
hoc ( “selective” ) incorporation, an approach that absorbs 
one-by-one individual guarantees of the federal Bill of 
Rights into the Due Process Clause of the Fourteenth 
Amendment, and holds them applicable to the States 
with all the subtleties and refinements born of history 
and embodied in case experience developed in the context 
of federal adjudication. Thus, with few exceptions the 
Court has “incorporated,” each time over my protest,14 
almost all the criminal protections found within the first 
eight Amendments to the Constitution, and made them 
“jot-for-jot and case-for-case” applicable to the States.

The process began with Mapp v. Ohio, 367 U. S. 643 
(1961), where the Court applied to the States the so- 
called exclusionary rule, rendering inadmissible at trial 
evidence seized in violation of the Fourth Amendment, 
and thereby overruling pro tanto Wolf v. Colorado, 338 
U. S. 25 (1949). See my dissenting opinion, 367 U. S.,

14 In addition to separate opinions noted in the text, see, e. g., Poe 
v. Ullman, 367 U. S. 497, 522, at 539-545 (1961) (dissenting opin­
ion) ; Griswold v. Connecticut, 381 U. S. 479, 499 (1961) (concurring 
opinion); Lanza v. New York, 370 U. S. 139, 147 (1962) (concur­
ring opinion); Gideon v. Wainwright, 372 U. S. 335, 349 (1963) 
(concurring opinion); Murphy v. Waterfront Commission, 378 
U. S. 52, 80 (1964) (concurring opinion); Barber v. Page, 390 
U. S. 719, 726 (1968) (concurring opinion); Berger v. New York, 
388 U. S. 41, 89 (1967) (dissenting opinion); Chimel v. California,
supra; Ashe v. Swenson,---- U. S .------  (1970) (concurring opinion);
Coleman v. Alabama,---- U. S . ------ (1970) (concurring opinion);
Bloom v. Illinois, 391 U. S. 194, 215 (1968) (dissenting opinion); 
Washington v. Texas, 388 U. S. 14, 23 (1967) (concurring opinion); 
Dickey v. Florida, —  U. S. —  (1970) (concurring opinion).



BALDWIN v. NEW YORK 15

at 672. The particular course embarked upon in Mapp 
was blindly followed to its end in Ker v. California, 374 
U. S. 23 (1963), where the Court made federal standards 
of probable cause for search and seizure applicable to the 
States, thereby overruling the remainder of Wolf. See 
my concurring opinion, 374 U. S., at 44. Thereafter fol­
lowed Malloy v. Hogan, 378 U. S. 1 (1964), and Griffin 
v. California, 380 U. S. 609 (1965), overruling Twining 
v. New Jersey, 211 U. S. 78 (1908), and Adamson v. Cali, 
fornia, 332 U. S. 46 (1947), and incorporating the Fifth 
Amendment privilege against self-incrimination by hold­
ing that “the same standards must determine whether an 
accused’s silence in either a federal or state proceeding is 
justified.” See my dissenting opinion in Malloy, 378 U. S., 
at 14 and my concurring opinion in Griffin, 380 U. S., at 
615. The year of Grffiin also brought forth Pointer v. 
Texas, 380 U. S. 400 (1965), overruling Snyder v. Massa­
chusetts, 291 U. S. 97 (1934) , and Stein v. New York, 346 
U. S. 156, 194 (1953), by holding that the Sixth Amend­
ment’s Confrontation Clause applied equally to the 
States and Federal Government. See my concurring 
opinion, 380 U. S., at 408. In 1967 incoporation swept 
in the “speedy trial” guarantee of the Sixth Amendment. 
Klopfer v. North Carolina, 386 U. S. 213 (1967), and in 
1968 Duncan v. Louisiana, supra, rendered the Sixth 
Amendment jury trial a right secured by the Fourteenth 
Amendment Due Process Clause. Only last Term the 
Court overruled Palko v. Connecticut, supra, and held 
that the “double jeopardy” protection of the Fifth 
Amendment was incorporated into the Fourteenth, and 
hence also carried to the States. Benton v. Mary­
land, 395 U. S. 784 (1969); see my concurring opinion 
in Klopfer, 386 U. S., at 226; my dissenting opinion in 
Duncan, 391 U. S., at 171; my dissenting opinion in 
Benton, 395 U. S., at 784, and my separate opinion in



16 BALDWIN v. NEW YORK

North Carolina v. Pearce, 395 U. S. 711, 744 (1969).15 
In combination these cases have in effect restructured 
the Constitution in the field of state criminal law 
enforcement.

There is no need to travel again over terrain trod in 
earlier opinions in which I have endeavored to lay bare 
the historical and logical infirmities of this “incorpora- 
tionist” approach. On that score I am content to rest on 
what I said in dissent in Duncan, supra, 391 U. S. 145, 
161. I continue to consider the principles therein ex­
pressed as the sound basis for approaching the adjudica­
tion of state cases of the kind now before us. It is 
my firm conviction that “incorporation” distorts the 
“essentially federal nature of our national government,” 
Atlantic Coast Line Railroad Co. v. Brotherhood of Loco­
motive Engineers,---- - U. S. ----- , -----(1970), one of whose
basic virtues is to leave ample room for governmental 
and social experimentation in a society as diverse as 
ours, and which also reflects the view of the Framers 
that “ the security of liberty in America rested primarily 
upon the dispersion of governmental power across a fed­
eral system,” 391 U. S., at 173. The Fourteenth Amend­
ment tempered this basic philosophy but did not unstitch 
the basic federalist pattern woven into our constitutional

15 The right to counsel appears not to have been explicitly 
“ incorporated,” although Gilbert v. California, 388 U. S. 263 (1967), 
implicitly does so. Gideon v. Wainwright, 372 U. S. 335 (1963), 
purported to be a determination that “ fundamental fairness” re­
quires the State to afford trial counsel to the indigent accused. Id., 
at 343. Although I have disagreed with particular holdings like 
Gilbert v. California, supra, where the Court held that the 
States must arrange presence of counsel at lineups, see M r . Justice 
W h ite ’s separate opinion in United States v. Wade, 388 U. S. 
218, 250, which I joined, this is because those decisions incorrectly 
require, in my view, counsel in circumstances where his presence is 
not necessary under either the Sixth Amendment or the Due Process 
Clause. See my concurring opinion in Coleman v. Alabama, decided 
today,-----U. S .------ (1970).



BALDWIN v. NEW YORK 17

fabric. The structure of our Government still embodies 
a philosophy that presupposes the diversity that en­
gendered the federalist system.

That these doctrines are not only alive in rhetoric 
but vital in the world of practical affairs is evidenced 
by contemporary debate concerning the desirability of 
returning to “local” government the administration of 
many programs and functions that have in late years 
increasingly been centralized in the hands of the National 
Government.

B
But the best evidence of the vitality of federalism 

is today’s decision in Williams. The merits or demerits 
of the jury system can, of course, be debated and those 
States that have diluted the common-law requirements 
evince a conclusion that the protection as known at com­
mon law is not necessary for a fair trial, or is only such 
marginal assurance of a fair trial that the inconvenience 
of assembling 12 individuals outweighs other gains in the 
administration of justice achieved by using only six in­
dividuals (or none at all as was the case in New York 
City).

The Court rejects in Baldwin what would be the 
consistent approach, requiring affirmance, simply because 
New York City is the single jurisdiction in the Nation 
that sees fit to try misdemeanants without a jury. In 
doing so it, in effect, holds that “due process” is more 
offended by a trial without jury for an offense punish­
able by no more than a year in prison than it is by 
a trial with a jury of six or less for offenses pun­
ishable by life imprisonment. This ignores both the 
basic fairness of the New York procedure and the peculiar 
local considerations that have led the New York Legisla­
ture to conclude that trial by jury is more apt to retard 
than further injustice for criminal defendants in New 
York City.



18 BALDWIN v. NEW YORK

I, for one, find nothing unfair in the New York system 
which provides the city defendant with an option, in 
lieu of a jury, of a bench trial before three judges, 
N. Y. C. Crim. Ct. Act § 40. Moreover, I think it 
counterproductive of fairness in criminal trials to hold by 
way of incorporation that juries are required of States 
in these days when congested calendars and attendant 
delays make what many students of criminal justice 
feel is one of the most significant contributions to injus­
tice and hardship to criminal defendants.

The statistics cited by the New York Court of Appeals 
and amplified in the briefs are revealing and trenchant 
evidence of the crisis that presently bedevils the ad­
ministration of criminal justice in New York City. 
New York’s population density, a factor which is, as 
noted by the President’s Commission on Law Enforce­
ment and Administration of Justice, The Challenge of 
Crime in a Free Society, pp. 5, 28, directly associated 
with crime, is twice that of Buffalo, the second largest 
city in the State. Statistics supplied by the Office of the 
State Administrator of the Judicial Conference of the 
State of New York show that “From July, 1966 through 
December, 1968, the New York City Criminal Court dis­
posed of 321,368 nontraffic misdemeanor cases, whereas in 
the next largest city, Buffalo, the City Court disposed of 
8,189 nontraffic misdemeanor cases.” Op. N. Y. Ct. App., 
In the Matter oj Hogan v. Rosenberg, 24 N. Y. 2d 207, 
218, 247 N. E. 2d 260, 266 (1969). Thus, New York City’s 
misdemeanor caseload is 39 times that of Buffalo’s al­
though its population is only 17 times greater. After to­
day each of such defendants in New York is entitled to a 
trial by some kind of a jury. It can hardly be gainsaid 
that a jury requirement with the attendant time for selec­
tion of jurors and deliberation, even if not invoked by all 
defendants, will increase delays in calendars, depriving all 
defendants of a prompt trial. Impressive evidence sug­



BALDWIN v, NEW YORK 19

gests that this requirement could conceivably increase 
delays in New York City courts by as much as a factor 
of eight. A study done of the administration of the 
Municipal Court in Minneapolis shows that the require­
ment of a trial by jury in cases of intoxicated driving 
increased court delays there from three to 24 months. 
Note, Right to a Jury Trial of Persons Accused of 
Ordinance Violation, 47 Minn. L. Rev. 93 (1962).

Notwithstanding this critical situation the Court con­
cludes that the Constitution requires a procedure fraught 
with delay even though the American Bar Association 
Project on Minimum Standards for Criminal Justice 
(Trial By Jury) has recognized the New York City 
three-judge procedure as a possible compromise measure 
where jury trials are not permitted or waived, and the 
further fact that one-half the defendants tried for mis­
demeanors in New York City are acquitted.” 16

III
Today’s decisions demonstrate a constitutional schizo­

phrenia born of the need to cope with national diversity 
under the constraints of the incorporation doctrine. In 
Baldwin the Court overrides the consideration of local 
needs, but in Williams it seeks out a minimum standard 
to avoid causing disruption in numerous instances even 
though, a priori, incorporation would surely require a 
jury of 12. The six-man, six-month rule of today’s deci­
sions simply reflects the lowest common denominator in 
the scope and function of the right to trial by jury in this

16 The President of the Legal Aid Society in New York City 
recently reported that 49% of the society’s clients who were tried 
in the New York City Criminal Court in 1967 (without a jury) were 
acquitted; there were 3,023 convictions after trial, 2,678 acquittals 
after trial. Speech at annual Judicial Conference of the Second 
Judicial Circuit of the United States, Lake Placid, N. Y.,. Sept. 14, 
1968, reprinted in N. Y. C. Joum., September 25, 1968, p. 1.



20 BALDWIN v. NEW YORK

country, but the circumstance that every jurisdiction 
except New York City has a trial by a jury for offenses 
punishable by six months in prison obscures the variety of 
opinion that actually exists as to the proper place for the 
jury in the administration of justice. More discriminating 
analysis indicates that four States besides Florida author­
ize a jury of less than 12 to try felony offenses17 and 
three States authorize a nonunanimous verdict18 in 
felony cases, and at least two other States provide a trial 
without jury in the first instance for certain offenses pun­
ishable by more than one year with a right to de novo 
trial on appeal.19 Eight States provide for juries ranging 
from five to 12 to try crimes punishable by one year in 
prison, and one State has provided for a verdict by nine in 
a jury of 12.20 Five States first provide a bench trial 
for misdemeanors from which the defendant can seek a 
trial de novo by jury,21 a procedure that this Court, in a 
federal trial, has deemed incompatible with the Sixth 
Amendment for putting the accused to the burden of 
two trials if he wishes a jury verdict. See Callan v. 
Wilson, supra.22

These varying provisions, reflecting as they do differ­
ing estimates of the importance of the jury in securing

17 See the Court’s opinion, n. 14, ante, 21.
18 See Appendix.
19 See Appendix.
20 See Appendix.
21 See Appendix.
22 “ Except in that class or grade of offenses, which, according to 

the common law, may be proceeded against summarily . . . the 
guarantee of an impartial jury to the accused in a criminal prose­
cution, conducted . . . by . . . the United States, secures to him 
the right to enjoy that mode of trial from the just moment, and 
in whatever court, he is put on trial for the offence charged. . . . 
To accord to the accused a right to be tried by a jury, in an appel­
late court, after he has been once fully tried otherwise than by a 
jury, in the court of original jurisdiction . . . does not satisfy the 
requirements of the Constitution.”  127 U. S., at 557.



BALDWIN v NEW YORK 21

a fair trial and the feasibility of administering such a 
procedure given the local circumstances, and the exten­
sive study and debate about the merits and demerits of 
the jury system, demonstrate that the relevance and 
proper role of trial by jury in the administration of crim­
inal justice is yet far from sure.

“ Incorporation” in Duncan closed the door on debate,23 
irrespective of local circumstances, such as the backlogs 
in urban courts like those of New York City, and has, 
without justification, clouded with uncertainty the con­
stitutionality of these differing states modes of proceed­
ing, see n. 19, supra, pending approval by this Court; it 
now promises to dilute in other ways the settled meaning 
of the federal right to a trial by jury. Flexibility for ex­
perimentation in the administration of justice should be 
returned to the States here and in other areas that now 
have swept into the rigid mold of “incorporation.” I 
agree with T he Chief Justice “That the ‘near uniform 
judgment of the nation’ is otherwise than the judgment 
in some of its parts affords no basis . . .  to read into the 
Constitution something that is not found there.” Opin­
ion of T he Chief Justice, ante, at 2.

It is time, I submit, for this Court to face up to the 
reality implicit in today’s holdings and reconsider the 
“ incorporation” doctrine before its leveling tendencies 
further retard development in the field of criminal 
procedure by stifling flexibility in the States and by dis­
carding the possibility of federal leadership by example.

23 See, e. g., Kalven and Zeisel, The American Jury 5 (1966); 
Comment, Should Jury Verdicts Be Unanimous in Criminal Cases? 
47 Ore. L. Rev. 417 (1968).



APPENDIX

A. Nonunanimous Verdict For Felony-Type Offenses.
1. Louisiana Stat. Ann., Code of Criminal Procedure, 

Art, .783. (Verdict of 9 out of 12 in cases necessarily 
punished by hard labor.)

2. Oregon Const., Art. I, § 11; Ore. Rev. Stat. §§ 17.355, 
136.330, 136.610 (5/6 sufficient for verdict in a circuit 
court except in capital cases; 3/4 verdict apparently 
authorized for particular offenses as exception to general 
rule of unanimity for conviction).

3. Vernons, Texas Stat. Ann., Code of Criminal Proce­
dure, Art. 36.29 (permitting verdict by less than 12 when 
juror is incapacitated).
B. Non-Jury Trial In Cases Punishable By More Than

One Year Imprisonment With De Novo Review.
1. Maryland: Constitution, Declaration of Rights, 

Arts. 5, 21; Md. Ann. Code, Art, 51, § 18, Art 52, § 13 
(1968), Art. 66-1/2, §§48, 74, 75, 216, 325 (1967), § 327 
(Supp. 1968); Md. Rules P. 743, 758. (Trial by jury 
appears not to be afforded in motor vehicle cases in the 
first instance even though some motor vehicle offenses 
carry a penalty of up to five years’ imprisonment.)

2. North Carolina: Constitution, Art. I, § 13; State 
v. Sherron, 4 N. C. 386, 166 S. E. 2d 836 (1969); N. C. 
Gen. Stat. Ann. §§ 7A-272 (a), 7A-196 (e), 14-3 (Supp. 
1967). (District courts have jurisdiction to try, without 
a jury, all offenses below the grade of felony. Such 
offenses are denominated petty misdemeanors and the 
maximum sentence which may be imposed is a fine or 
two years’ imprisonment.

3. Purdon’s, Pa. Const., Art. § 16 (R ) (iii) (offenses 
tried in the family division of the court of common pleas 
carrying penalties up to two years imprisonment and

22



BALDWIN v. NEW YORK 23

indictable offenses under the motor vehicle laws 
for which punishment does not exceed three years’ 
imprisonment).
C. 6-Man Jury For Misdemeanors

1. Alaska: Constitution, Art. I, § 11; Alaska Stat. 
A n n ., §§ 11.75.030, 22.15.060, 22.15.150 (1962) (Jury 
of six in district magistrate’s courts, which have juris­
diction of misdemeanors, punishable by up to one year’s 
imprisonment).

2. Georgia: Constitution, Art. I, § 2-105, Art. VI, 
§2-5101, Ga . Code A n n . § 27-2506 (1965); Ga. Laws 
1890-1891, pp. 935, 939, 942 (In county criminal courts, 
which have jurisdiction of misdemeanors—cases in which 
the maximum sentence imposable is a fine of up to $1000 
or imprisonment for a term of up to twelve months or 
both—a defendant may demand a jury trial. Depend­
ing upon the country, however, a jury ranges in size 
from five to twelve persons. The Criminal Court of 
Atlanta, for example, tries misdemeanors with juries of 
five. In Hall County the same crimes are tried by juries 
of twelve).

3. Iowa: Constitution, Art. 1, §9 ; Iowa Code 
An n ., §§ 602.15, 602.25, 602.39, 687.7 (1950) (Jury of 
six in municipal courts, which have jurisdiction of mis­
demeanors, carrying a maximum fine of $500 or imprison­
ment for one year or both).

4. Kentucky: Constitution, §§ 7, 11, 248; K y . R ev. 
Stat. An n ., §§25.010, 25.014, 26.400, 29.015 (1963) 
(Misdemeanors, carrying a maximum penalty of $500 or 
twelve months’ imprisonment, are tried in inferior courts 
by a jury of six. Circuit courts, where a 12-member jury 
is used, have concurrent jurisdiction).

5. Mississippi: Constitution, Art. 3, § 31, Art. 6, 
§ 171; Miss. Code An n . §§ 1831, 1836, 1839 (Jurisdiction



24 BALDWIN v. NEW YORK

of crimes punishable in the country jail may be tried in 
the justice of the peace courts by a six-man jury. Many 
such crimes have a one-year maximum term. Circuit 
courts have concurrent jurisdiction. Such crimes in­
clude, e. g., offenses involving corruption in elections 
[Miss. C ode A n n . §§ 2031, 2032], escape or aiding escape 
of prisoners [§§ 2133, 2134, 2135, 2141], public officers’ 
interest in contracts [§§2301, 2302], and trade marks 
[§§ 2390, 2391]).

6. Oklahoma: C o n st it u t io n , Art. 2, §§ 19, 20; O k l a . 
Sta t . A n n . tit. 11, §§ 958.3, 958.6, tit. 21, § 10 (1961) (In 
misdemeanor cases—those in which a sentence of up to 
one year’s imprisonment may be imposed—in courts of 
record, a defendant may demand a jury of twelve; nine 
members of the jury may render a verdict. For viola­
tions of city ordinances tried in courts not of record, the 
defendant may demand six jurors, five of whom may 
render a verdict).

7. Oregon: C o n st it u t io n , Art. I, § 11; C o n stitu tio n  
(orig.) Art. VII, § 12; Ore . R ev . Sta t ., §§ 5.110 (Supp. 
1967), 46.040, 46.175, 46.180 (1967) (Jury of six in county 
courts, which have jurisdiction of all crimes except those 
carrying the death penalty or life imprisonment. Jury 
of six in district courts, which have jurisdiction of all 
misdemeanors, punishable by one year’s imprisonment).

8. Virginia: C o n st it u t io n , Art. I, § 8; Va. C ode A n n . 
§§ 16.1-123, 16.1-124, 16,1-126, 16.1-129, 16.1-132, 16.1- 
136 (1956), 18.1-6, 18.1-9 (1961), 19.1-206 (1960). (In 
courts not of record, which have jurisdiction of misde­
meanors, punishable by up to one year’s imprisonment, 
charges are tried without a jury. The defendant may 
appeal as of right to the circuit court, where he receives 
a trial de novo. All trials in the circuit court of offenses 
not felonious, whether in the first instance or on appeal, 
are with five jurors.)



BALDWIN v. NEW YORK 25

D. Non Jury Trial For Misdemeanors Subject to De 
Novo Review

1. Arkansas: C o n st it u t io n , Art. 2, § 10; A k k . Stat . 
A n n . §§ 22-709, 22-737, 26-301, 41-106, 43-1901, 43- 
1902, 44-115, 44-116, 44-509 (1964); see generally, 
Greenebaum, Arkansas’ Judiciary: Its History and Struc­
ture, 18 Ark. L. Rev. (1964). (No jury provided in 
municipal courts, which have jurisdiction of misde­
meanors carrying a maximum penalty of one year’s im­
prisonment. Upon conviction, the defendant may appeal 
to the circuit court where he is entitled to a trial de novo 
before a common law jury.)

2. Maine: C o n stitu tio n , Art. I, §§6, 7; M e . R ev . 
Stat . A n n . tit. 4, § 152 (Supp. 1968), tit. 15, §§ 1, 451 
(1965); M e . R. C r im . P. 23 (b ), 3 1 (a ); Sprague v. 
Androscoggin, 104 Me. 352, 71 Atl. 1908 (1908); letter 
dated December 17, 1968, from M aine Attorney General’s 
office to New York County District Attorney’s office 
(Maine district courts try misdemeanors—crimes punish­
able by a sentence of up to one year—without a jury. A 
defendant may appeal his conviction to the Superior 
Court, however, where he is entitled to a common law 
jury).

3. New Hampshire: C o n stitu tio n , Pt. 1, Arts. 15, 16, 
Pt. 2, Art. 77; N. H. R ev . Stat . A n n . § 599.1 (Supp. 
1967), §§ 502-A :ll, 502-A:12, 502-18 (1968); State v. 
Despres, 220 A. 2d 758 (1966) (District and municipal 
courts try, without a jury, misdemeanors carrying a maxi­
mum term of imprisonment of one year. The defendant 
in these courts has an absolute right of appeal to the 
Superior Court where he may demand a jury of twelve in 
his trial de novo).

4. Rhode Island: Constitution , Art. 1, §§ 10, 15; 
R. I. G e n . L aw s  §§ 12-3-1, 12-17-1, 12-22-1, 12-22-9



26 BALDWIN v NEW YORK

(1956); State v. Nolan, 15 R. I. 529, 10 Atl. 481 (1887) 
(There are no juries in the district courts, which have 
jurisdiction of misdemeanors—crimes punishable by a 
fine of up to $500 or imprisonment for up to one year or 
both. A defendant may appeal his conviction to the 
Superior Court where he is entitled to a trial de novo 
before a jury of twelve).

5. Virginia: Constitution, Art. I, § 8; Va. Code A n n . 
§§ 16.1-123, 16.1-124, 16.1-126, 16.1-129, 16.1-132,
16.1-136 (1956), 18.1-6, 18.1-9 (1961). (In courts not 
of record, which have jurisdiction of misdemeanors, pun­
ishable by up to one year’s imprisonment, charges are 
tried without a jury. The defendant may appeal as of 
right to the circuit court, where he receives a trial de novo 
with five jurors).



SUPBEME COUBT OF THE UNITED STATES

Nos. 188 and  927.— O ctober T e r m , 1969

Robert Baldwin, Appellant, 
188 v.188 On Appeal From the Court 

of Appeals of New York.
State of New York.

Johnny Williams, Petitioner,
927927 v.

State of Florida.

On Writ of Certiorari to 
the District Court of Ap­
peal of Florida, Third 
District.

[June 22, 1970]

M r. Justice  Stew a rt , dissenting in No. 188, and 
concurring in No. 927.

I substantially agree with the separate opinion M r. 
Ju stice  H arlan  has filed in these cases—an opinion that 
fully demonstrates some of the basic errors in a mechanis­
tic “ incorporation” approach to the Fourteenth Amend­
ment. I cannot subscribe to his opinion in its entirety, 
however, if only for the reason that it relies in part upon 
certain dissenting and concurring opinions in previous 
cases in which I did not join.

The “incorporation” theory postulates the Bill of 
Rights as the substantive metes and bounds of the Four­
teenth Amendment. I think this theory is incorrect as 
a matter of constitutional history, and that as a matter 
of constitutional law it is both stultifying and unsound. 
It is, at best, a theory that can lead the Court only to a 
Fourteenth Amendment dead end. And, at worst, the 
spell of the theory’s logic compels the Court either to 
impose intolerable restrictions upon the constitutional 
sovereignty of the individual States in the administra­
tion of their own criminal law, or else intolerably to 
relax the explicit restrictions that the Framers actually



2 BALDWIN v. NEW YORK

did put upon the federal government in the administra­
tion of criminal justice. All this, and much more, is 
elaborated in M r . Ju stice  H ar la n ’s separate opinion, 
and I would affirm the judgments in both No. 188 and 
No. 927 for substantially the reasons he states.1

The architect of the contemporary “ incorporation” 
approach to the Fourteenth Amendment is, of course, 
M r . Justice  B l a c k . See Adamson v. California, 332 
U. S. 46, 68 (dissenting opinion).1 2 3 And the sep­
arate opinion my Brother B lack  has filed today in 
No. 927 could serve as Exhibit A to illustrate the ex­
traordinary habits of thought into which some of us 
have fallen in conditioned reflex to that erroneous con­
stitutional doctrine. “ Incorporation” has become so 
Pavlovian that my Brother B lack  barely mentions the 
Fourteenth Amendment in the course of an 11-page opin­
ion dealing with the procedural rule the State of Florida 
has adopted for cases tried in Florida courts under Flor­
ida’s criminal laws.2 His opinion relies instead upon the

1 Like M r . Justice H arlan, I join Part I of the Court’s opinion 
in No. 927, relating to the “ alibi”  issue.

21 have had occasion to state elsewhere my own understanding, 
for whatever it is worth, of the motivational origins of Fourteenth 
Amendment “ incorporation” :

“ Shortly before Justice Jackson came to the Court, some of its 
then more junior members had embraced the comforting theory 
that the Fourteenth Amendment’s substantive impact upon the 
states could be exactly measured by the specific restrictions that 
the first eight Amendments imposed upon the National Govern­
ment. I call this a ‘comforting’ theory, because, for critics of the 
old Court’s subjective approach to due process, it was a theory that 
appeared to give the Fourteenth Amendment objective content and 
definable scope.”  (Footnotes omitted.) P. Stewart, Robert H. 
Jackson’s Influence on Federal-State Relationships, in Mr. Justice 
Jackson, Four Lectures in His Honor 76 (1969).

3 A worthy candidate for nomination as Exhibit B is the con­
curring opinion filed today in Coleman v. Alabama, p . ---- , ante, by
my Brother D ouglas. In dealing with the procedure followed by



BALDWIN v. NEW YORK 3

“plain and obvious meaning” of the “specific words” of 
the Fifth Amendment and other “provisions of the Bill 
of Rights” which, together with “ the history surrounding 
the adoption of those provisions,” make clear that “ the 
Framers . . . designed” those rights “to shield the de­
fendant against state power.”

Though I admire the rhetoric, I submit with all defer­
ence that those statements are, to quote their author, 
“plainly and simply wrong as a matter of fact and 
law . . . If the Constitution forbids the Florida alibi 
defense procedure, it is because of the Fourteenth Amend­
ment, and not because of either the “specific words” of 
the Bill of Rights or “the history surrounding” their adop­
tion. For as every schoolboy knows, the Framers “de­
signed” the Bill of Rights not against “ state power,” but 
against the power of the Federal Government.4

Surely M r. Justice H arlan is right when he says it is 
time for the Court to face up to reality.

Alabama in the administration of Alabama criminal law, my Brother’s 
opinion advises us that “ it is the Sixth Amendment that con­
trols , . , And this statement is made in the name of “ strict 
construction of the Constitution” !

4 This is not to say that I would agree that the Fifth Amendment 
or any other provisions of the Bill of Rights would render un­
constitutional a federal alibi procedure similar to Florida’s. See n. 1, 
supra.



SUPEEME COUET OF THE UNITED STATES

No. 927.— October T e r m , 1969

Johnny Williams, 
Petitioner, 

v.
State of Florida.

On Writ of Certiorari to the District 
Court of Appeal of Florida, Third 
District.

[June 22, 1970]

M r. Justice  B lack , with whom M r. Justice  D ouglas 
joins, concurring in part and dissenting in part.

The Court today holds that a State can, consistently 
with the Sixth Amendment to the United States Consti­
tution, try a defendant in a criminal case with a jury 
of six members. I agree with that decision for substan­
tially the same reasons given by the Court. My Brother 
H arlan , however, charges that the Court’s decision on 
this point is evidence that the “incorporation doctrine,” 
through which the specific provisions of the Bill of 
Rights are made fully applicable to the States under the 
same standards applied in federal courts1 will somehow 
result in a “dilution” of the protections required by those 
provisions. He asserts that this Court’s desire to relieve 
the States from the rigorous requirements of the Bill of 
Rights is bound to cause re-examination and modifica­
tion of prior decisions interpreting those provisions as 
applied in federal courts in order simultaneously to apply 
the provisions equally to the state and federal govern­
ments and to avoid undue restrictions on the States. 
This assertion finds no support in today’s decision or any 
other decision of this Court. We have emphatically 
“rejected the notion that the Fourteenth Amendment

1 See cases cited in In re Winship, 397 U. S. 358, 382 n. 11 
(B lack, J., dissenting) (1970).



2 WILLIAMS v. FLORIDA

applies to the States only a ‘watered-down, subjective 
version of the individual guarantees of the Bill of 
Rights.” ’ Mally v. Hogan, 378 U. S. 1, 10-11 (1964). 
Today’s decision is in no way attributable to any 
desire to dilute the Sixth Amendment in order more 
easily to apply it to the States, but follows solely 
as a necessary consequence of our duty to re-examine 
prior decisions to reach the correct constitutional mean­
ing in each case. The broad implications in early 
cases indicating that only a body of 12 members 
could satisfy the Sixth Amendment requirement arose 
in situations where the issue was not squarely presented 
and were based, in my opinion, on an improper inter­
pretation of that amendment. Had the question pre­
sented here arisen in a federal court before our decision 
in Duncan v. Louisiana, 391 U. S. 145 (1968), this Court 
would still, in my view, have reached the result an­
nounced today. In my opinion the danger of diluting 
the Bill of Rights protections lies not in the “ incorpora­
tion doctrine,” but in the “shock the conscience” test 
on which my Brother H arlan  would rely instead—a test 
which depends not on the language of the Constitution 
but solely on the views of a majority of the Court as to 
what is “ fair” and “decent.”

The Court also holds that a State can require a defend­
ant in a criminal case to disclose in advance of trial the 
nature of his alibi defense and give the names and ad­
dresses of witnesses he will call to support that defense. 
This requirement, the majority says, does not violate the 
Fifth Amendment prohibition against compelling a crim­
inal defendant to be a witness against himself. Although 
this case itself involves only a notice-of-alibi provision, 
it is clear that the decision means that a State can 
require a defendant to disclose in advance of trial any 
and all information he might possibly use to defend him­
self at trial. This decision, in my view, is a radical and



WILLIAMS v. FLORIDA 3

dangerous departure from the historical and constitu­
tionally guaranteed right of a defendant in a criminal 
case to remain completely silent, requiring the State to 
prove its case without any assistance of any kind from 
the defendant himself.

I
The core of the majority’s decision is an assumption 

that compelling a defendant to give notice of an alibi 
defense before a trial is no different from requiring a 
defendant, after the State has produced the evidence 
against him at trial, to plead alibi before the jury retires 
to consider the case. This assumption is clearly revealed 
by the statement that “ the pressures which bear on 
[a defendant’s] pre-trial decision are of the same nature 
as those which would induce him to call alibi witnesses at 
the trial: the force of historical fact beyond both his and 
the State’s control and the strength of the State’s case 
built on these facts.” Ante, at 7. That statement is 
plainly and simply wrong as a matter of fact and law, and 
the Court’s holding based on that statement is a complete 
misunderstanding of the protections provided for crim­
inal defendants by the Fifth Amendment and other pro­
visions of the Bill of Rights.2

2 As I have frequently stated, in my opinion the Fourteenth 
Amendment was in part adopted in order to make the provisions 
of the Bill of Rights fully applicable to the States. See, e. g., Adam­
son v. California, 332 U. S. 46, 68 (1947) (dissenting opinion). 
This Court has now held almost all these provisions do apply to the 
States as well as the Federal Government, including the Fifth 
Amendment provision involved in this case. See Malloy v. Hogan, 
378 U. S. 1 (1964); cases cited in In re Winship, 397 U. S. 358, 
382 n. 11 (1970) (B lack, J., dissenting). When this Court is 
called upon to consider the meaning of a particular provision of the 
Bill of Rights—whether in a case arising from a state court or a 
federal one— it is necessary to look to the specific language of the 
provision and the intent of the Framers when the Bill of Rights 
itself was adopted. This approach is necessary not because the



4 WILLIAMS v. FLORIDA

A
When a defendant is required to indicate whether he 

might plead alibi in advance of trial, he faces a vastly 
different decision than that faced by one who can wait 
until the State has presented the case against him before 
making up his mind. Before trial the defendant knows 
only what the State’s case might be. Before trial there 
is no such thing as the “strength of the State’s case,” 
there is only a range of possible cases. At that time 
there is no certainty as to what kind of case the State will 
ultimately be able to prove at trial. Therefore any ap­
praisal of the desirability of pleading alibi will be beset 
with guesswork and gambling far greater than that ac­
companying the decision at the trial itself. Any lawyer 
who has actually tried a case knows that, regardless of 
the amount of pretrial preparation, a case looks far dif­
ferent when it is actually being tried than when it is 
only being thought about.

The Florida system, as interpreted by the majority, 
plays upon this inherent uncertainty in predicting the 
possible strength of the State’s case in order effectively to 
coerce defendants into disclosing an alibi defense that 
may never be actually used. Under the Florida rule, 
a defendant who might plead alibi must, at least 10 
days before the date of trial, tell the prosecuting attor­
ney that he might claim an alibi or else the defendant 
faces the real threat that he may be completely barred 
from presenting witnesses in support of his alibi. Ac­
cording to the Court, however, if he gives the required 
notice and later changes his mind “ [njothing in such a 
rule requires [him] to rely on an alibi or prevents him

Framers intended the Bill of Rights to apply to the States when 
it was proposed in 1789, but because the application of those provi­
sions to the States by the Fourteenth Amendment requires that the 
original intent be the governing consideration in state as well as 
federal cases.



WILLIAMS v. FLORIDA 5

from abandoning the defense; these matters are left to 
his unfettered choice.” Ante, at 6. Thus in most sit­
uations defendants with any possible thought of plead­
ing alibi are in effect compelled to disclose their inten­
tions in order to preserve the possibility of later raising 
the defense at trial. Necessarily few defendants and 
their lawyers will be willing to risk the loss of that 
possibility by not disclosing the alibi. Clearly the pres­
sures on defendants to plead an alibi created by this 
procedure are not only quite different than the pressures 
operating at the trial itself, but are in fact significantly 
greater. Contrary to the majority’s assertion, the pre­
trial decision cannot be analyzed as simply a matter of 
“ timing,” influenced by the same factors operating at the 
trial itself.

The Court apparently also assumes that a defendant 
who has given the required notice can abandon his alibi 
without hurting himself. Such an assumption is implicit 
in and necessary for the majority’s argument that the 
pretrial decision is no different than that at the trial 
itself. I, however, cannot so lightly assume that pre­
trial notice will have no adverse effects on a defendant 
who later decides to forego such a defense. Necessarily 
the defendant wTill have given the prosecutor the names 
of persons who may have some knowledge about the 
defendant himself or his activities. Necessarily the pros­
ecutor will have every incentive to question these per­
sons fully, and in doing so he may discover new leads 
or evidence. Undoubtedly there will be situations in 
which the State will seek to use such information—infor­
mation it would probably never have obtained but for 
the defendant’s coerced cooperation.

B
It is unnecessary for me, however, to engage in any 

such intellectual gymnastics concerning the practical



6 WILLIAMS v. FLORIDA

effects of the notice-of-alibi procedure, because the Fifth 
Amendment itself clearly provides that “ [n]o person . . . 
shall be compelled in any criminal case to be a witness 
against himself.” If words are to be given their plain 
and obvious meaning, that provision, in my opinion, 
states that a criminal defendant cannot be required to 
give evidence, testimony, or any other assistance to the 
State to aid it in convicting him of crime. Cf. Schmerber 
v. California, 384 U. S. 757, 773 (1966) (B lack , J., dis­
senting). The Florida notice-of-alibi rule in my opinion 
is a patent violation of that constitutional provision be­
cause it requires a defendant to disclose information to 
the State so that the State can use that information to 
destroy him. It seems to me at least slightly incredible 
to suggest that ths procedure may have some beneficial 
effects for defendants. There is no need to encourage 
defendants to take actions they think will help them. 
The fear of conviction and the substantial cost or incon­
venience resulting from criminal prosecutions are more 
than sufficient incentives to make defendants want to 
help themselves. If a defendant thinks that disclosure 
of an alibi before trial is in his best interests, he will 
obviously do so. And the only time the State needs the 
compulsion provided by this procedure is when the de­
fendant has decided that such disclosure is likely to hurt 
his case.

It is no answer to this argument to suggest that the 
Fifth Amendment as so interpreted would give the de­
fendant an unfair element of surprise, turning a trial 
into a “poker game” or “sporting contest,” for that 
tactical advantage to the defendant is inherent in the 
type of trial required by our Bill of Rights. The Framers 
were well aware of the awesome investigative and pros­
ecutorial powers of government and it was in order to 
limit those powers that they spelled out in detail in 
the Constitution the procedure to be followed in criminal 
trials. Defendants, they said, are entitled to notice of



WILLIAMS v. FLORIDA 7

the charges against them, trial by jury, the right to 
counsel for their defense, the right to confront and cross- 
examine witnesses, the right to call witnesses in their 
own behalf, and the right not to be a witness against 
themselves. All of these rights are designed to shield 
the defendant against state power. None are designed 
to make convictions easier and taken together they clearly 
indicate that in our system the entire burden of proving 
criminal activity rests on the State. The defendant, 
under our Constitution, need not do anything at all to 
defend himself, and certainly he cannot be required to 
help convict himself. Rather he has an absolute, un­
qualified right to compel the State to investigate its 
own case, find its own witnesses, prove its own facts, 
and convince the jury through its own resources. 
Throughout the process the defendant has a fundamental 
right to remain silent, in effect challenging the State at 
every point to “ Prove it!”

The Bill of Rights thus sets out the type of consti­
tutionally required system that the State must follow in 
order to convict individuals of crime. That system re­
quires that the State itself must bear the entire burden 
without any assistance from the defendant. This require­
ment is clearly indicated in the Fifth Amendment itself, 
but it is equally apparent when all the specific provi­
sions of the Bill of Rights relating to criminal prosecu­
tions are considered together. And when a question 
concerning the constitutionality of some aspect of crim­
inal procedure arises, this Court must consider all those 
provisions and interpret them together. The Fifth 
Amendment prohibition against compelling a defendant 
to be a witness against himself is not an isolated, dis­
tinct provision. It is part of a system of constitutionally 
required procedures, and its true meaning can be seen 
only in light of all those provisions. “Strict construc­
tion” of the words of the Constitution does not mean



8 WILLIAMS v. FLORIDA

that the Court can look only to one phrase, clause or 
sentence in the Constitution and expect to find the 
right answer. Each provision has clear and definite 
meaning, and various provisions considered together may 
have any equally clear and definite meaning. It is only 
through sensitive attention to the specific words, the con­
text in which they are used, and the history surrounding 
the adoption of those provisions that the true meaning of 
the Constitution can be discerned.

This constitutional right to remain absolutely silent 
cannot be avoided by superficially attractive analogies to 
any so-called “compulsion” inherent in the trial itself 
which may lead a defendant to put on evidence in his 
own defense. Obviously the Constitution contemplates 
that a defendant can be “compelled” to stand trial, and 
obviously there will be times when the trial process itself 
wall require the defendant to do something in order to 
try to avoid a conviction. But nothing in the Consti­
tution permits the State to add to the natural conse­
quences of a trial and compel the defendant in advance 
of trial to participate in any way in the State’s attempt 
to condemn him.

A criminal trial is in part a search for truth. 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 con­
vincing a jury that the defendant is guilty. That task 
is made more difficult by the Bill of Rights, and the 
Fifth Amendment may be one of the most difficult of 
the barriers to surmount. The Framers decided that the 
benefits to be derived from the kind of trial required 
by the Bill of Rights were well worth any loss in “effi­
ciency” that resulted. Their decision constitutes the 
final word on the subject, absent some constitutional 
amendment. That decision should not be set aside as 
the Court does today.



WILLIAMS v. FLORIDA 9

II
On the surface this case involves only a notice-of- 

alibi provision, but in effect the decision opens the way 
for a profound change in one of the most important 
traditional safeguards of a criminal defendant. The 
rationale of today’s decision is in no way limited to alibi 
defenses, or any other type or classification of evidence. 
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. In each case the justification will be that the rule 
affects only the “timing” of the disclosure, and not the 
substantive decision itself. This inevitability is clearly 
revealed by the citation to Jones v. Superior Court, 22 
Cal. Rptr. 879, 372 P. 2d 919 (1962), ante, at 5, n. 13. 
In that case, the theory of which the Court today adopts 
in its entirety, a defendant in a rape case disclosed that 
he would rely in part on a defense of impotency. The 
prosecutor successfully obtained an order compelling the 
defendant to reveal the names and adresses of any doctors 
he consulted and the medical reports of any examinations 
relating to the claimed incapacity. That order was up­
held by the highest court in California. There was no 
“rule” or statute to support such a decision, only the 
California Supreme Court’s sense of fairness, justice, and 
judicial efficiency. The majority there found no barrier 
to the judicial creation of pretrial discovery by the State 
against the defendant, least of all a barrier raised by any 
constitutional prohibition on compelling the defendant 
to be a witness against himself.

The dangerous implications of the Jones rationale 
adopted today are not, however, limited to the disclosure 
of evidence that the defendant has already decided he 
will use at trial. In State v. Grove, 65 Wash. 2d 525



10 WALLACE v. FLORIDA

(1965), the Washington Supreme Court, relying on 
Jones, held that a defendant in a murder trial could 
be compelled to produce a letter he had written his wife 
about the alleged crime, even though he had no thought 
at all of using that evidence in his own behalf. These 
cases are sufficient evidence of the inch-by-inch, case- 
by-case process by which the rationale of today’s decision 
can be used to transform radically our system of criminal 
justice into a process requiring the defendant to assist 
the State in convicting him, or be punished for failing 
to do so.

There is a hint in the State’s brief in this case—as 
well as, I fear, in the Court’s opinion—of the ever- 
recurring suggestion that the test of constitutionality is 
the test of “ fairness,” “decency,” or in short the Court’s 
own views of what is “best.” Occasionally this test 
emerges in disguise as an intellectually satisfying “ dis­
tinction” 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. 
Such a course, in my view, is involved in this case. This 
decision is one more step away from the written Consti­
tution and a radical departure from the system of crim­
inal justice that has prevailed in this country. Com­
pelling a defendant in a criminal case to be a witness 
against himself in any way, including the use of the 
system of pretrial discovery approved today, was un­
known in English law, except for the unlamented pro­
ceedings in the Star Chamber courts—the type of pro­
ceedings the Fifth Amendment was designed to prevent. 
For practically the first 150 years of this Nation’s history 
no State considered adopting such procedures compelling 
a criminal defendant to help convict himself, although 
history does not indicate that our ancestors were any 
less intelligent or solicitous of having a fair and efficient 
system of criminal justice than we are. History does



WALLACE v. FLORIDA 11

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. They were 
well aware that any individual might some day be sub­
jected to criminal prosecution, and it was in order to 
protect the freedom of each of us that they restricted the 
Government’s ability to punish or imprison any of us. 
Yet in spite of the history of oppression that produced 
the Bill of Rights and the strong reluctance of our gov­
ernments to compel a criminal defendant to assist in 
his own conviction, the Court today reaches out to em­
brace and sanctify at the first opportunity a most dan­
gerous departure from the Constitution and the tradi­
tional safeguards afforded persons accused of crime. I 
cannot accept such a result and must express my most 
emphatic disagreement and dissent.



SUPREME COURT OF THE UNITED STATES

No. 927.— O ctober T e r m , 1969

Johnny Williams, 
Petitioner, 

v.

On Writ of Certiorari to the District 
Court of Appeal of Florida, Third 
District.

State of Florida.,

[June 22, 1970]

M r . Ju stice  M a r sh a ll , dissenting in part.
I join Part I of the Court’s opinion. However, since 

I believe that the Fourteenth Amendment guaranteed 
W illiams a jury of 12 to pass upon the question of his 
guilt or innocence before he could be sent to prison for 
the rest of his life, I dissent from the affirmance of his 
conviction.

I adhere to the holding of Duncan v. Louisiana, 391 
U. S. 145, 149 (1968), that “ [b]eeause . . . trial by jury 
in criminal cases is fundamental to the American scheme 
of justice, . . .  the Fourteenth Amendment guarantees 
a right of jury trial in all criminal cases which—were 
they to he tried in a federal court— would come within 
the Sixth Amendment’s guarantee.” And I agree with 
the Court that the same “ trial by jury” is guaranteed 
to state defendants by the Fourteenth Amendment as to 
federal defendants by the Sixth. “Once it is decided 
that a particular Bill of Rights guarantee is ‘fundamental 
to the American scheme of justice’ . . . the same consti­
tutional standards apply against both the State and 
Federal Governments.” Benton v. Maryland, 395 U. S. 
784, 795 (1969).

At the same time, I adhere to the decision of the Court 
in Thompson v. Utah, 170 U. S. 343, 349 (1898), that the 
jury guaranteed by the Sixth Amendment consists “of 
twelve persons, neither more nor less.” As I see it, the



2 WILLIAMS v. FLORIDA

Court has not made out a convincing case that the Sixth 
Amendment should be read differently than it was in 
Thompson even if the matter were now before us de 
novo—much less than an unbroken line of precedent 
going back over 70 years should be overruled. The 
arguments made by M r . Justice  H arlan  in Part IB of 
his opinion persuade me that Thompson was right when 
decided and still states sound doctrine. I am equally 
convinced that the requirement of 12 should be applied 
to the States.