# Johnson v. Louisiana/Dissent Douglas

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* Opinion of the Court
* Concurring Opinions Blackmun Powell
* Dissenting Opinions Douglas Brennan Stewart Marshall
[p380] MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL concur, dissenting.
Appellant in the Louisiana case and petitioners in the Oregon case were convicted by jurors that were less than unanimous. This procedure is authorized by both the [p381] Louisiana and Oregon Constitutions. Their claim, rejected by the majority, is that this procedure is a violation of their federal constitutional rights. With due respect to the majority, I dissent from this radical departure from American traditions.

## I

The Constitution does not mention unanimous juries. Neither does it mention the presumption of innocence, nor does it say that guilt must be proved beyond a reasonable doubt in all criminal cases. Yet it is almost inconceivable that anyone would have questioned whether proof beyond a reasonable doubt was in fact the constitutional standard. And, indeed, when such a case finally arose we had little difficulty disposing of the issue. In re Winship, 397 U.S. 358, 364.
The Court, speaking through MR. JUSTICE BRENNAN, stated that:
   "[The] use of the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty.
   "Lest there remain any doubt about the constitutional nature of the reasonable-doubt standard, we explicitly held that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." Ibid.
[p382] I had similarly assumed that there was no dispute that the Federal Constitution required a unanimous jury in all criminal cases. After all, it has long been explicit constitutional doctrine that the Seventh Amendment civil jury must be unanimous. See American Publishing Co. v. Fisher, 166 U.S. 464, where the Court said that "unanimity was one of the peculiar and essential features of trial by jury at the common law. No authorities are needed to sustain this proposition." Id., at 468. Like proof beyond a reasonable doubt, the issue of unanimous juries in criminal cases simply never arose. Yet in cases dealing with juries it had always been assumed that a unanimous jury was required. See Maxwell v. Dow, 176 U.S. 581, 586; Patton v. United States, 281 U.S. 276, 288; Andres v. United States, 333 U.S. 740, [p383], 748. Today the bases of those cases are discarded and two centuries of American history are shunted aside.
The result of today's decisions is anomalous: though unanimous jury decisions are not required in state trials, they are constitutionally required in federal prosecutions. How can that be possible when both decisions stem from the Sixth Amendment?
We held unanimously in 1948 that the Bill of Rights requires a unanimous jury verdict:
   "Unanimity in jury verdicts is requires where the Sixth and Seventh Amendments apply. In criminal cases this requirement of unanimity extends to all issues–character or degree of the crime, guilt and punishment–which are left to the jury. A verdict embodies in a single finding the conclusions by the jury upon all the questions submitted to it." Andres v. United States, 333 U.S., at 748.
After today's decisions, a man's property may only be taken away by a unanimous jury vote, yet he can be stripped of his liberty by a lesser standard. How can that result be squared with the law of the land as expressed in the settled and traditional requirements of procedural due process?
Rule 31 (a) of the Federal Rules of Criminal Procedure states, "The verdict shall be unanimous." That Rule was made by this Court with the concurrence of Congress pursuant to 18 U.S.C. § 3771. After today a unanimous verdict will be required in a federal prosecution, but not in a state prosecution. Yet the source of the right in each case is in the Sixth Amendment. I fail [p384] to see how with reason we can maintain those inconsistent dual positions.
There have, of course, been advocates of the view that the duties imposed on the States by reason of the Bill of Rights operating through the Fourteenth Amendment are a watered-down version of those guarantees. But we held to the contrary in Malloy v. Hogan, 378 U.S. 1, 10-11:
   "We have held that the guarantees of the First Amendment, Gitlow v. New York, supra; Cantwell v. Connecticut, 310 U.S. 296; Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293, the prohibition of unreasonable searches and seizures of the Fourth Amendment, Ker v. California, 374 U.S. 23, and the right to counsel guaranteed by the Sixth Amendment, Gideon v. Wainwright, supra, are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment. In the coerced confession cases, involving the policies of the privilege itself, there has been no suggestion that a confession might be considered coerced if used in a federal but not a state tribunal. The Court thus has rejected the notion that the Fourteenth Amendment applies to the States only a 'watered-down, subjective version of the individual guarantees of the Bill of Rights.'"
Malloy, of course, not only applied the Self-Incrimination Clause to the States but also stands for the proposition, as mentioned, that "the same standards must determine whether an accused's silence in either a federal or state proceeding is justified." Id., at 11. See also Murphy v. Waterfront Comm'n, 378 U.S. 52, 79. The equation of federal and state standards for the Self-Incrimination Clause was expressly reaffirmed in [p385] Griffin v. California, 380 U.S. 609, 615; and in Miranda v. Arizona, 384 U.S. 436, 464.
Similarly, when the Confrontation Clause was finally made obligatory on the States, Mr. Justice Black for the majority was careful to observe that its guarantee, "like the right against compelled self-incrimination, is 'to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.'" Pointer v. Texas, 380 U.S. 400, 406. Cf. Dutton v. Evans, 400 U.S. 74, 81.
Likewise, when we applied the Double Jeopardy Clause against the States MR. JUSTICE MARSHALL wrote for the Court that "[o]nce it is decided that a particular Bill of Rights guarantee is 'fundamental to the American scheme of justice,' Duncan v. Louisiana... the same constitutional standards apply against both the State and Federal Governments." Benton v. Maryland, 395 U.S. 784, 795. And, the doctrine of coextensive coverage was followed in holding the Speedy Trial Clause applicable to the States. Klopfer v. North Carolina, 386 U.S. 213, 222.
And, in Duncan v. Louisiana, 391 U.S. 145, 158 n. 30, in holding the jury trial guarantee binding in state trials, we noted that its prohibitions were to be identical against both the Federal and State Governments. See also id., at 213 (Fortas, J., concurring).
Only once has this Court diverged from the doctrine of coextensive coverage of guarantees brought within the Fourteenth Amendment, and that aberration was later rectified. In Wolf v. Colorado, 338 U.S. 25, it was held that the Fourth Amendment ban against unreasonable and warrantless searches was enforceable against the States but the Court declined to incorporate the Fourth Amendment exclusionary rule of Weeks v. United States, [p386] 232 U.S. 383. Happily, however, that gap was partially closed in Elkins v. United States, 364 U.S. 206, and then completely bridged in Mapp v. Ohio, 367 U.S. 643. In Mapp we observed that "[t]his Court has not hesitated to enforce as strictly against the States as it does against the Federal Government the rights of free speech and of a free press, the rights to notice and to a fair, public trial..." We concluded that "the same rule" should apply where the Fourth Amendment was concerned. Id., at 656. And, later, we made clear that "the standard for obtaining a search warrant is... 'the same under the Fourth and Fourteenth Amendments,'" Aguilar v. Texas, 378 U.S. 108, 110; and that the "standard of reasonableness is the same under the Fourth and Fourteenth Amendments." Ker v. California, 374 U.S. 23, 33.
It is said, however, that the Sixth Amendment, as applied to the States by reason of the Fourteenth, does not mean what it does in federal proceedings, that it has a "due process" gloss on it, and that that gloss gives the States power to experiment with the explicit or implied guarantees in the Bill of Rights.
Mr. Justice Holmes, dissenting in Truax v. Corrigan, 257 U.S. 312, 344, and Mr. Justice Brandeis, dissenting in New State Ice Co. v. Liebmann, 285 U.S. 262, 311, thought that the States should be allowed to improvise remedies for social and economic ills. But in that area there are not many "thou shalt nots" in the Constitution and Bill of Rights concerning property rights. The most conspicuous is the Just Compensation Clause of the Fifth Amendment. It has been held applicable with full vigor to the States by reason of the Fourteenth Amendment. Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226.
Do today's decisions mean that States may apply a "watered down" version of the Just Compensation [p387] Clause? Or are today's decisions limited to a paring down of civil rights protected by the Bill of Rights and up until now as fully applicable to the States as to the Federal Government?
These civil rights—whether they concern speech, searches and seizures, self-incrimination, criminal prosecutions, bail, or cruel and unusual punishments extend, of course, to everyone, but in cold reality touch mostly the lower castes in our society. I refer, of course, to the blacks, the Chicanos, the one-mule farmers, the agricultural workers, the offbeat students, the victims of the ghetto. Are we giving the States the power to experiment in diluting their civil rights? It has long been thought that the "thou shalt nots" in the Constitution and Bill of Rights protect anyone against governmental intrusion or overreaching. The idea has been obnoxious that there are some who can be relegated to second-class citizenship. But if we construe the Bill of Rights and the Fourteenth Amendment to permit States to "experiment" with the basic rights of people, we open a veritable Pandora's box. For hate and prejudice are versatile forces that can degrade the constitutional scheme.
[p388] That, however, is only one of my concerns when we make the Bill of Rights, as applied to the States, a "watered down" version of what that charter guarantees. My chief concern is one often expressed by the late Mr. Justice Black, who was alarmed at the prospect of nine men appointed for life sitting as a super-legislative body to determine whether government has gone too far. The balancing was done when the Constitution and Bill of Rights were written and adopted. For this Court to determine, say, whether one person but not another is entitled to free speech is a power never granted it. But that is the ultimate reach of decisions that let the State, subject to our veto, experiment with rights guaranteed by the Bill of Rights.
I would construe the Sixth Amendment, when applicable to the States, precisely as I would when applied to the Federal Government.

## II

The plurality approves a procedure which diminishes the reliability of a jury. First, it eliminates the circumstances in which a minority of jurors (a) could have rationally persuaded the entire jury to acquit, or (b) while unable to persuade the majority to acquit, nonetheless could have convinced them to convict only on a lesser-included offense. Second, it permits prosecutors in Oregon and Louisiana to enjoy a conviction-acquittal ratio substantially greater than that ordinarily returned by unanimous juries.
The diminution of verdict reliability flows from the fact that nonunanimous juries need not debate and deliberate as fully as most unanimous juries. As soon as the requisite majority is attained, further consideration is not required either by Oregon or by Louisiana even though the dissident jurors might, if given the chance, be able to convince the majority. Such persuasion [p389] does in fact occasionally occur in States where the unanimous requirement applies: "In roughly one case in ten, the minority eventually succeeds in reversing an initial majority, and these may be cases of special importance." One explanation for this phenomenon is that because jurors are often not permitted to take notes and because they have imperfect memories, the forensic process of forcing jurors to defend their conflicting recollections and conclusions flushes out many nuances which otherwise would go overlooked. This collective effort to piece together the puzzle of historical truth, however, is cut short as soon as the requisite majority is reached in Oregon and Louisiana. Indeed, if a necessary majority is immediately obtained, then no deliberation at all is required in these States. (There is a suggestion that this may have happened in the 10-2 verdict rendered in only 41 minutes in Apodaca's case.) To be sure, in jurisdictions other than these two States, initial majorities normally prevail in the end, but about a tenth of the time the rough-and-tumble of the jury room operates to reverse completely their preliminary perception of guilt or innocence. The Court now extracts from the jury room this automatic check against hasty fact-finding by relieving jurors of the duty to hear out fully the dissenters.
It is said that there is no evidence that majority jurors will refuse to listen to dissenters whose votes are unneeded for conviction. Yet human experience teaches that polite and academic conversation is no substitute for the earnest and robust argument necessary to reach unanimity. As mentioned earlier, in Apodaca's case, whatever courtesy dialogue transpired could not have lasted more than 41 minutes. I fail to [p390] understand why the Court should lift from the States the burden of justifying so radical a departure from an accepted and applauded tradition and instead demand that these defendants document with empirical evidence what has always been thought to be too obvious for further study.
To be sure, in Williams v. Florida, 399 U.S. 78, we held that a State could provide a jury less than 12 in number in a criminal trial. We said: "What few experiments have occurred–usually in the civil area–indicate that there is no discernible difference between the results reached by the two different-sized juries. In short, neither currently available evidence nor theory suggests that the 12-man jury is necessarily more advantageous to the defendant than a jury composed of fewer members." Id., at 101-102.
That rationale of Williams can have no application here. Williams requires that the change be neither more nor less advantageous to either the State or the defendant. It is said that such a showing is satisfied here since a 3:9 (Louisiana) or 2:10 (Oregon) verdict will result in acquittal. Yet experience shows that the less-than-unanimous jury overwhelmingly favors the States.
Moreover, even where an initial majority wins the dissent over to its side, the ultimate result in unanimous-jury States may nonetheless reflect the reservations of uncertain jurors. I refer to many compromises verdicts on lesser-included offenses and lesser sentences. Thus, even though a minority may not be forceful enough to carry the day, their doubts may nonetheless cause a majority to exercise caution. Obviously, however, in Oregon and Louisiana, dissident jurors will not have the opportunity through full deliberation to temper the opposing faction's degree of certainty of guilt.
The new rule also has an impact on cases in which a unanimous jury would have neither voted to acquit nor [p391] to convict, but would have deadlocked. In unanimous-jury States, this occurs about 5.6% of the time. of these deadlocked juries, Kalven and Zeisel say that 56% contain either one, two, or three dissenters. In these latter cases, the majorities favor the protection 44% (of the 56%) but the defendant only 12% (of the 56%). Thus, by eliminating these deadlocks, Louisiana wins 44 cases for every 12 that it loses, obtaining in this band of outcomes a substantially more favorable conviction ratio (3.67 to 1) than the unanimous-jury ratio of slightly less than two guilty verdicts for every acquittal. H. Kalven & H. Zeisel, The American Jury 461, 488 (Table 139) (1966). By eliminating the one-and-two-dissenting-juror cases, Oregon does even better, gaining 4.25 convictions for every acquittal. While the statutes on their face deceptively appear to be neutral, the use of the nonunanimous jury stacks the truth-determining process against the accused. Thus, we take one step more away from the accusatorial system that has been our proud boast.
It is my belief that a unanimous jury is necessary if the great barricade known as proof beyond a reasonable [p392] doubt is to be maintained. This is not to equate proof beyond a reasonable doubt with the requirement of a unanimous jury. That would be analytically fallacious since a deadlocked jury does not bar, as double jeopardy, retrial for the same offense. See Dreyer v. Illinois, 187 U.S. 71. Nevertheless, one is necessary for a proper effectuation of the other. Compare Mapp v. Ohio, 367 U.S. 643, with Wolf v. Colorado, 338 U.S. 25.
Suppose a jury begins with a substantial minority but then in the process of deliberation a sufficient number changes to reach the required 9:3 or 10:2 for a verdict. Is not there still a lingering doubt about that verdict? Is it not clear that the safeguard of unanimity operates in this context to make it far more likely that guilt is established beyond a reasonable doubt?
The late Learned Hand said that "as a litigant I should dread a lawsuit beyond almost anything else short of sickness and death." At the criminal level that dread multiplies. Any person faced with the awesome power of government is in great jeopardy, even though innocent. Facts are always elusive and often two-faced. What may appear to one to imply guilt may carry no such overtones to another. Every criminal prosecution crosses treacherous ground, for guilt is common to all men. Yet the guilt of one may be irrelevant to the charge on which he is tried or indicate that if there is to be a penalty, it should be of an extremely light character.
The risk of loss of his liberty and the certainty that if found guilty he will be "stigmatized by the conviction" were factors we emphasized in Winship in sustaining the requirement that no man should be condemned where there is reasonable doubt about his guilty. 397 U.S., at 363-364.
[p393] We therefore have always held that in criminal cases we would err on the side of letting the guilty go free rather than sending the innocent to jail. We have required proof beyond a reasonable doubt as "concrete substance for the presumption of innocence." Id., at 363.
That procedure has required a degree of patience on the part of the jurors, forcing them to deliberate in order to reach a unanimous verdict. Up until today the price has never seemed too high. Now a "law and order" judicial mood causes these barricades to be lowered.
The requirements of a unanimous jury verdict in criminal cases and proof beyond a reasonable doubt are so embedded in our constitutional law and touch so directly all the citizens and are such important barricades of liberty that if they are to be changed they should be introduced by constitutional amendment.
Today the Court approves a nine-to-three verdict. Would the Court relax the standard of reasonable verdict still further by resorting to eight-to-four verdicts, or even a majority rule? Moreover, in light of today's holdings and that of Williams v. Florida, in the future would it invalidate three-to-two or even two-to-one convictions?
Is the next step the elimination of the presumption of innocence? Mr. Justice Frankfurter, writing in dissent in Leland v. Oregon, 343 U.S. 790, 802-803, said:
   "It is not unthinkable that failure to bring the guilty to book for a heinous crime which deeply stirs popular sentiment may lead the legislature of a State, in one of those emotional storms which on occasion sweep over our people, to enact that thereafter an indictment for murder, following attempted rape, should be presumptive proof of guilt and cast upon the defendant the burden of proving beyond a reasonable doubt that he did not do the killing. Can there be any doubt that such a statute would go beyond [p394] the freedom of the States, under the Due Process Clause of the Fourteenth Amendment, to fashion their own penal codes and their own procedures for enforcing them? Why is that so? Because from the time that the law which we have inherited has emerged from dark and barbaric times, the conception of justice which has dominated our criminal law has refused to put an accused at the hazard of punishment if he fails to remove every reasonable doubt of his innocence in the minds of jurors. It is the duty of the Government to establish his guilt beyond a reasonable doubt. This notion–basic in our law and rightly one of the boasts of a free society–is a requirement and a safeguard of due process of law in the historic, procedural content of 'due process.' Accordingly there can be no doubt, I repeat, that a State cannot cast upon an accused the duty of establishing beyond a reasonable doubt that his was not the act which caused the death of another."
The vast restructuring of American law which is entailed in today's decisions is for political not for judicial action. Until the Constitution is rewritten, we have the present one to support and construe. It has served us well. We lifetime appointees, who sit here only by happenstance, are the last who should sit as a Committee of Revision on rights as basic as those involved in the present cases.
Proof beyond a reasonable doubt and unanimity of criminal verdicts and the presumption of innocence are basic features of the accusatorial system. What we do today is not in that tradition but more in the tradition of the inquisition. Until amendments are adopted setting new standards, I would let no man be fined or imprisoned in derogation of what up to today was indisputably the law of the land.

## Notes

* ↑ [This opinion applies also to No. 69-5046, Apodaca et al. v. Oregon, post, p. 404.]
* ↑ See also 2 J. Story, Commentaries on the Constitution 559 n. 2 (5th ed. 1891): "A trial by jury is generally understood to mean ex vi termini, a trial by a jury of twelve men, impartially selected, who must unanimously concur in the guilt of the accused before a legal conviction can be had. Any law, therefore, dispensing with any of these requisites, may be considered unconstitutional." In the 1969 Term we held a jury of six was sufficient, Williams v. Florida, 399 U.S. 78, but we noted that neither evidence nor theory suggested 12 was more favorable to the accused than six. The same cannot be said for unanimity and impartial selection of jurors. See infra, at 388-394. Story's Commentaries cite no statutory authority for the requirement of unanimity in a criminal jury. That is because such authority has never been thought necessary. The unanimous jury has been so embedded in our legal history that no one would question its constitutional position and thus there was never any need to codify it. Indeed, no criminal case dealing with a unanimous jury has ever been decided by this Court before today, largely because of this unquestioned constitutional assumption. A similar assumption had, of course, been made with respect to the Seventh Amendment civil jury, but that issue did reach the Court. And the Court had no difficulty at all in holding a unanimous jury was a constitutional requirement. American Publishing Co. v. Fisher, 166 U.S. 464.
* ↑ Of course, the unanimous jury's origin is long before the American Revolution. The first recorded case where there is a requirement of unanimity is Anonymous Case, 41 Lib. Assisarum 11 (1367), reprinted in English in R. Pound & T. Plucknett, Readings on the History and System of the Common Law 155-156 (3d ed. 1927).
* ↑ What was said of the impact of Mapp v. Ohio, 367 U.S. 643, on federalism bears repeating here: "Mapp... established no assumption by this Court of supervisory authority over state courts... and, consequently, it implied no total obliteration of state laws" relating to arrests and searches in favor of federal law. Mapp sounded no death knell for our federalism; rather, it echoed the sentiment of Elkins v. United States (364 U.S. 206) that 'a healthy federalism depends upon the avoidance of needless conflict between state and federal courts' by itself urging that '[f]ederal-state cooperation... will be promoted, if only by recognition of their now mutual obligation to respect the same fundamental criteria in their approaches." Ker v. California, 374 U.S. 23, 31.
* ↑ H. Kalven & H. Zeisel, The American Jury 490 (1966). See also The American Jury: Notes For an English Controversy, 48 Chi. B. Rec. 195 (1967).
* ↑ The American Jury, supra, n. 3, at 460. Last Vote of Deadlocked Juries Vote for ConvictionPer Cent 11:124 10:210 9:310 8:410 7:56 6:613 5:713 4:88 3:94 2:104 1:118
* ↑ 3 Lectures on Legal Topics, Association of Bar of the City of New York 105 (1926).