Burch v. Louisiana, 441 U.S. 130; 99 S. Ct. 1623; 60 L. Ed. 2d 96 (1979)

Facts—Burch and a corporation were both found guilty under the Louisiana criminal code of a nonpetty criminal offense (obscenity) and convicted by a five-person vote of a six-person jury. Although acknowledging that the issue was “close,” the Louisiana Supreme Court upheld the conviction.

Question—Does conviction by a nonunanimous six-person jury for a non- petty offense violate the right to a jury trial guaranteed by the Sixth Amendment and applied to states by the Fourteenth?

Decision—Yes.

Reasons—C.J. Rehnquist (9–0 as regards the specific issue). Since Duncan v. Louisiana (1968), the Supreme Court has held that the right to a jury trial is so fundamental that it binds the states. In Williams v. Florida (1970), the Court upheld the use of a six-person jury, in Apodaca v. Oregon (1972), it upheld the conviction by a vote of ten of twelve jurors in noncapital cases, and in Ballew v. Georgia (1978) it ruled that a trial by a five-person jury for a nonpetty offense was unconstitutional. This case mixes questions of jury size and unanimity. Admitting that the Court had “already departed from the strictly historical requirements of jury trial,” Rehnquist argued “that lines must be drawn some- where if the substance of the jury trial right is to be preserved.” In 1979, only two states other than Louisiana allowed nonunanimous verdicts in jury trials of six people. The state’s interest in saving time and reducing the number of hung juries was insufficient to justify a nonunanimous verdict in this case: “when a State has reduced the size of its juries to the minimum number of jurors permit- ted by the Constitution, the additional authorization of nonunanimous verdicts by such juries sufficiently threatens the constitutional principles that led to the establishment of the size threshold that any countervailing interest of the State should yield.”

J. Stevens limited his concurrence to the specific question at issue in the case. J. Brennan (joined by J. Stewart and J. Marshall) agreed that non unanimous juries in nonpetty cases were unconstitutional but would have struck down the obscenity law at issue in this case as “overbroad and therefore facially unconstitutional.”