Trial by Jury in Criminal Cases Source: Columbia Law Review, Vol. 69, No. 3 (Mar., 1969), pp.

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NOTES
TRIAL BY JURY IN CRIMINALCASES
No American legal institution is more rooted in the mystique of tradition than the jury. Judges are willing to define the jury's function by distinguishing between questions for the jury and questions for the court, but they have not frequently been willing to ask what purpose is served by giving the jury a role in the administration of justice. Researchers have had some success in identifying the distinguishing features of jury decision-making, but have not generally attempted to use their findings to justify the present scope of the jury's role in criminal cases.' Such a task does not so much require empirical field work as reflection about the reasons for having the institution of jury trial in the American system of government. Six recent decisions2 of the Supreme Court have affirmed that in criminal cases the jury is a part of the credo of the American legal system. Specifically, the Court has held that the accused's right to trial by jury under the sixth amendment is a fundamental right which states must afford under the due process clause of the fourteenth amendment. Moreover, in rulings applicable to both the states and the federal government, the Court has made jury trial more attractive to the criminal defendant. But although the Court finds the right to trial by jury to be fundamental, it has not clearly indicated why jury trial is fundamental or, in other words, what high purpose is served by the jury. The Court has two models from which to choose. The jury may be seen as a fundamental guarantor of accuracy in fact-finding. On the other hand, the jury may be viewed as a fundamental political institution meant to provide the individual a degree of protection against the legislative will and the prosecutor's discretion. At times the Court speaks as if its decisions were premised on the first model; yet, as will be shown, the decisions can only be explained on the assumption that it is the latter model which the Court seeks to implement. It is important to know what is the Court's true view of the jury's purpose in order to predict future developments concerning trial by jury.
I. DUNCAN V. LOUISIANA: THE JURY AS A POLITICAL INSTITUTION

Recent decisions of the Supreme Court have strengthened the position of the defendant vis-a-vis the state in all stages of the criminal process.3
2. The principal cases were Bruton v. United States, 391 U.S. 123 (1968); Duncan v. Louisiana, 391 U.S. 145 (1968) ; Witherspoon v. Illinois, 391 U.S. 510 (1968) ; United States v. Jackson, 390 U.S. 570 (1968). DeStefano v. Woods, 392 U.S. 631 (1968) applied Duncan retroactively, and Roberts v. Russell, 392 U.S. 293 (1968) applied Bruton retroactively. 3. See, e.g., Marchetti v. United States, 390 U.S. 39 (1968); Grosso v. United
1. See, e.g., H. KALVEN& H. ZEISEL,THE AMERICAN JURY 11 (1966).

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In Duncan v. Louisiana,4 the Court appears to continue this trend by holding that the due process clause of the fourteenth amendment requires a jury trial in state criminal proceedings for all serious crimes where a jury would be required by the sixth amendment in a federal prosecution.5 More specifically, the Court invalidated a Louisiana statute permitting judges alone to try the offense of battery carrying a maximum sentence of two years.6 In doing so, the Court reversed the conviction of a Negro youth charged with slapping the elbow of a white boy.7 A. The Court's Reasoning This is the last section of the sixth amendment to be brought within the fourteenth.8 In requiring the right to jury trial in state criminal trials, the Court seems to follow the general pattern of selective incorporation of the Bill of Rights guarantees. In determining whether a specific guarantee is essential to a scheme of ordered liberty, however, the Court placed an unusual emphasis on American legal history.9 Justice White, writing for the majority, proves the importance of the right to a jury trial largely from the prominence of the demand for this right through English, colonial and early American history. He looks to the Magna Carta,10to the English Bill of Rights of 1689 (which, as he explains, had this right as one of its major objectives), and to the faith Blackstone placed in trial by jury as a check by the people on the prerogative of the Crown. The Court stresses the fundamentality of trial by jury to Americans by cataloguing the repeated requests for the uncompromised right to trial by jury: the Stamp Act Congress; the First Continental Congress; the Declaration of Independence; and its inclusion in Article III, Section 2 of the Constitution, in the sixth amendment, and in the state constitutions.ll
States, 390 U.S. 62 (1968); Miranda v. Arizona, 384 U.S. 436 (1966); Escobedo v. Illinois, 378 U.S. 478 (1964); Gideon v. Wainwright, 372 U.S. 335 (1963). 4. 391 U.S. 145 (1968). 5. Id. at 149. 6. Id. 7. The defendant Duncan, a 19 year old Negro, drove past a group of six boysfour white boys and his two Negro cousins who had recently been integrated into an all-white school. Fearing a conflict, Duncan got out of his car and approached the group. He encouragedhis cousins to come with him. At the conclusion of the encounter, Duncan had physical contact with one of the white boys. At most, Duncan slapped an elbow; at the least, he touched the boy on the elbow-the testimony was contradictory. Id. at 147. In either case under Louisiana law he was guilty of simple battery which carried a maximum sentence of $300 and/or two years imprisonment.LA. REV. STAT. 14: 35 (1950). Duncan was sentenced to 60 days in prison and a fine of $150undoubtedlya severe penalty for such a minor infraction. 391 U.S. at 146. 8. The others include: the right to a speedy (Klopfer v. North Carolina, 386 U.S. 213 (1967)), and public trial (In re Oliver, 333 U.S. 257 (1948)), by an impartial jury (Turner v. Louisiana, 379 U.S. 466 (1965)); the right of confrontation of opposing witnesses (Pointer v. Texas, 380 U.S. 400 (1965)); the right of compulsory process for obtaining witnesses (Washington v. Texas, 388 U.S. 14 (1967)) the right to counsel (Gideon v. Wainwright, 372 U.S. 335 (1963)). 9. See Note, The Supreme Court, 1967 Term, 82 HARV. REV.63, 151 (1968). L. 10. Historians agree it did not grant this right (see, e.g., Thayer, The Jury and Its Development,5 HARV. REV. L. 249, 265 (1892)), as White notes. 391 U.S. at 145 n.16.

11. 391 U.S. at 151-54

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The Court reflected on its prior decisions which, in dicta, had held the right of trial by jury not to be of such a fundamental nature as to fall within the due process clause of the fourteenth amendment.12 But it rejected that conclusion and found that in the context of the American legal system, the right to a trial by jury is a fundamental one "granted to criminal defendants in order to prevent oppression by the Government."13 The Supreme Court's decision cannot be adequately explained as simply a procedural due process decision aimed at guaranteeing a fundamentally fair trial. The Court rehearses the traditional and inexact standard of due process: its essence being fundamental fairness. In the past, however, the main criterion of the test was whether a fair and equitable legal system without the particular right in question could be imagined. Thus, the Court was able to distinguish between essential and merely desirable rights.14 Applying that reasoning, it is easy to imagine a fair legal system without the right of trial by jury. In fact, most countries allow a judge to try criminal offenses, including many countries which have experimented with trial by jury and discarded it.15 And even in England, trial by jury is employed only for offenses equal to our felonies--a change in scope exactly the reverse of the Court's decision in Duncan.'6 But the Court in Duncan substitutes for that criterion the test of whether the particular guarantee is fundamental in the light of the American system.7 The difference which this test call make is obvious. For example, in earlier cases, such as Palko v. Connecticut, the Court, looking to foreign judicial systems, could hold that the fifth amendment right against double jeopardy was not an essential right which it would impose on the states,18 and ignore the deep-rooted tradition this right has in the federal system. But in Malloy v. Hoganl9 the Court held that the privilege against self-incrimination was 291 302 12. Palko v. Connecticut, U.S. 319 (1937); Snyderv. Massachusetts, U.S. 97 (1934); Maxwellv. Dow, 176 U.S. 581 (1900). The Courtpointedout that only in Maxwellwas the jury issue directlyraised.In that case, a jury of fewer than 12 had It that the whereasin Duncanno jury at all was permitted. is intimated been provided, had decision there beenno jury in Maxwell.391 the Courtmighthave reached opposite that U.S. at 154-55.The Courtfails to acknowledge whereasthat eight-man jury was sucha resultfrom beingreached. note 72 See wouldnow prohibit allowed,this decision text. infraandaccompanying
13. 391 U.S. at 145. first amendmentrights (Fiske v. Kansas, 274 U.S. 380 (1927)), the right to a reasonable search and seizure (Mapp v. Ohio, 367 U.S. 643 (1961)), the right against cruel and unusual punishment (Gideon v. Wainwright, 372 U.S. 335, 342 (1963)); Robinson v. California, 370 U.S. 660, 666 (1962)), and the right against self-incrimination (Malloy

in 14. Fundamental rights includethose mentioned note 8, supra,and, in addition,

include rightagainst the v. Hogan,378U.S. 1 (1964)). Thoseheldnot to be fundamental 302 doublejeopardy(Palko v. Connecticut, U.S. 319 (1937)) and the right to a grand 110 jury (Hurtadov. California, U.S. 516 (1884)). 15. In additionto England,Austria,Belgium,Norway, Denmark,Greece,Geneva countries employtrial by jury. and someotherSwiss cantonsand someLatinAmerican
H. KALVEN& H. ZEISEL,supra note 1, at 13-14 n.3 (1966).

16. Id. at 15 n.5. n.14. 17. 391U.S. at 149-50 302 18. Palko v. Connecticut, U.S. 319 (1937). 19. Malloyv. Hogan,378 U.S. 1 (1964).

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firmly imbedded logically and practically in our federal system, and therefore, required of the states. Duncan crystalizes the "American legal system" approach. The Court, however, does not fully analyze the role of the jury in the present day American legal system. The historical function of the jury to "prevent oppression by the Government"20is identified, and certainly, the jury has played an important role as a buffer between the state and its people, particularly in England in the 18th and 19th centuries.21Yet the fact that fear of unchecked government oppression led to the jury trial provision in the sixth amendment and in most state constitutions does not establish the present need for such protection. Mr. Justice Harlan, for one, is convinced that the need for this original virtue of jury trial has "largely disappeared."22 Some empirical evidence on the significance of jury trial is available. Studies by Professors Harry Kalven and Hans Zeisel23 indicate that judges do convict a slightly greater percentage of the time (16%)24 based on these factors: evaluation of the evidence (in 54% of the cases where the judge would have convicted); jury sentiments about the law (29%); jury sentiments about the individual defendant (11%); disparity of counsel (4%);
20. 391 U.S. at 155; Singer v. United States 380 U.S. 24, 31 (1965). 21. The right to trial by jury in criminal cases postdated a similar right in civil cases. Not until at least the reign of Henry III (1216-1272) was the petit jury, as a

regularizedthis type of jury proceeding to establish royal control over the machinery of justice. By the end of the 12th century, it was part of civil procedure; Henry also instituted regular use of the grand jury. Trial by jury was voluntary, id. at 6-7, and in the 13th century an accused criminal had the alternatives of combat or putting himself upon his country for trial. W. FORSYTH, supra, at 202. At this time the Church condemned trial by ordeal. Maitland, Pleas of the Crown for the County of Gloucester,1221, xxxviprovided for imprisonmentof notorious felons refusing to submit to the inquest. Wells, Early Opposition to the Petty Jury in Criminal Cases, 30 L.Q.R. 97, 104 (1914). The use of a second jury, as mentioned above, came at the end of the 13th century. This right of trial was solely at the King's grace. W. FORSYTH, supra, at 200. The men
OF 186 (1965). A statute in 1275 xliv, in J. SMITH, DEVELOPMENT LEGALINSTITUTIONS

which was composed the Domesday Book. F. HELLER, THE SIXTH AMENDMENT THE TO CONSTITUTION OF THE UNITED STATES 6 (1951). It was Henry II (1154-1189) who

200 (1852). The jury as an institutionbegan in the form of a grand or presentmentjury, whose role was that of an inquest-begun originally by Frankish conquerorsto discover the King's rights in the community, i.e., the extent of his holdings in real estate from

HISTORY TRIALBY JURY 199OF separate institution, employed in England. W. FORSYTH,

of the jury were selected for the prior knowledge they had of the case-in essence, it was a body of witnesses until the time of Henry VI (1422-1461) when it became the trier of evidence (though jurors from the accused's neighborhood still were required to have personal knowledge of him). Id. at 159. The jury was originated for the benefit of the Crown. Not until 1606 was the accused allowed to introduce witnesses in his behalf. Only after the Glorious Revolution (1688) were defendants accused of treason permitted

granted in 1836. F. HELLER, supra, at 9-10. The jury, therefore, was slow to emerge as a real safeguard of those accused of crimes. 22. 391 U.S. at 188 (dissenting opinion). 23. H. KALVEN& H. ZEISEL, supra note 1 (sample of 3576 trials). It must be remembered that judges were asked what they would have done-it is impossible to ascertain how perceptive they were. Obviously, they knew the purpose of the survey and may have been swayed somewhat in their answers because of it. 24. Id. at 59. The percentage varied with the crimes considered. Id. at 68-75. The agreement rate was 75.4%. Id. at 56. Most of the difference was based on value judg-

the assistance of counsel. A similar privilege for trials of felonies other than treason was

ments. Id. at 495.

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facts only the judge knew (2%).25 These differences do not document fundamental unfairness. This is not to indicate that no check on the judicial branch and the prosecuting arm of the executive is necessary. It is merely to say that as a matter of procedural due process the addition of the right of trial by jury is unnecessary and unproductive. The right to confront opposing witnesses (including the right of cross-examination), the right to have the use of compulsory processes in obtaining favorable witnesses, the right to counsel, the right against self-incrimination, and the right not to be convicted on evidence obtained by unconstitutional searches and seizures deny the prosecutor an unfair advantage and permit the defendant to be heard.26 Can a state system of trial by judge be fair in the context of the present American legal system? Several problems are apparent. Many state judges are not appointed for life but are elected for a specified term of office. It is impossible for them not to be cognizant of the attitudes of their constituencies if their reelection may be contested. More pressing is the problem of the admissibility of evidence. Normally, the judge rules on the admissibility of evidence (e.g., whether a confession was obtained voluntarily) outside the hearing of the jury. Thus, the jury is not confronted with the problem of having to disregard vivid but improper evidence. In a judge trial, the judge hears all the evidence and there is a danger he will be swayed by inadmissible evidence. Similarly, the judge is likely to know the defendant's prior record and be influenced by it. On the other hand, a trial judge is less likely to be influenced by the demeanor of the witnesses than would be the jury; he is more likely to focus on the probative value of their testimony. He may be less likely to be the victim of inflamed passions in a sensitive case. Moreover, the problem as to admissibility of evidence can be readily solved in many cases by holding a hearing before another judge. Without proof of judicial partiality it should not be assumed that judge trials are unfair. In fact, the Court in Duncan specifically states that it does not question the fairness of trial by judge where a jury is waived.27 This is not just to say that a defendant may waive
25. Id. at 115. The parentheticalnumbers indicate the statistical importanceof each factor. A jury's verdict moves basically with the weight and the direction of the evidence. Id. at 162. There are several reasons for the great disparity on issues of evidence; where there is doubt about the weight and the direction of the evidence, the jury may feel liberated and tend to follow sentiment; though the jury is neither overly gullible nor overly skeptical (id. at 180) their view on the credibility of the evidence sometimes is different from the judge's (e.g., a jury is distinctively more lenient where the defendant is a witness and has an unblemishedrecord); and the jury will tolerate less doubt in in convicting. Id. at 166-67. 26. Note, The Availability of Criminal Jury Trials under the Sixth Amendment,32 U. CHI. L. REV. 311, 327 (1965). 27. 391 U.S. at 158. It is possible to rationalize these two positions: that the defendant's right is to have the possibility of a jury trial, and not necessarily the jury trial itself; that by specifically waiving this right, the defendant has assumed the risks inherent in a trial by judge; and that because of his right to counsel, it is assumed that

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a constitutional right; it is to say that when such a waiver is made, the procedure which remains must itself be fair. Duncan v. Louisiana cannot be satisfactorily explained as a fundamental fairness decision. There is, however, another rationale which provides a principled basis. If the jury is viewed as a political or democratic institution28 and the case is read as involving the vindication of a political right, the problems which arise both in understanding the Court's route to the holding and the probable ramifications of the decisions are diminished. A political right is the individual's right to live under the system of government established by the Constitution. These political rights are defined by certain liberties of citizens and by our system's structure. Under the American system, the citizen has a right to speak his mind and practice his religion. The Court has had little difficulty in finding these rights fundamental for purposes of fourteenth amendment incoporation.29The Court has also dealt with the structure of our political system. In Reynolds v. Sims,30 it held that the equal protection clause demands apportionment of the seats in both houses of a bicameral state legislature on a population basis. The Constitution established a unique system of government and the sole inquiry is what are the politiical rights of citizens under that system. Certainly those rights are not to be restricted by France's view of the citizen's liberties or by England's decision to restrict the rights of its people. Political rights, moreover, are not a matter of fundamental fairness. If a rule other than one man, one vote is fundamentally unfair, then the method of electing the President and United States Senators is fundamentally unfair. The test, again, is rather what political system has the Constitution established. Political rights are not aimed primarily at protecting the citizen from the type of governmental oppression involved in the denial of procedural due process, that is, the denial of a fundamentally fair trial. Political rights protect his access to the political process and, in certain limited circumstances, protect the citizen from oppression by the will of the legislature.31The scope of political rights do not grow and shrink as the threat of governmental oppression becomes greater or lesser. Nor are they contingent on the non-existence of other ways in which the citizen might protect himself. The test of whether a political right secured by the Bill of Rights is to be incorporated within the fourteenth amendment and applied against the states the conscious choicewas one for his benefit.This last distinction ignoresthe real posor counselmay be ineffective, delinquent concerned primarily sibilitythatcourt-appointed with the time the varioustrial formsrequire. 28. Fay v. New York,332 U.S. 261,297 (1947) (dissenting opinion). involvedthe politicalright of freedomof 29. The earliest case of incorporation 274 speech.Fiske v. Kansas, U.S. 280 (1927). See Malloyv. Hogan,378 U.S. 1 (1964) 372 and Grayv. Sanders, U.S. 368 (1963). 30. 377 U.S. 533 (1964). ProductsCo., 304 U.S. 144,152 n.4 (1938). 31. UnitedStates v. Carolene

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is whether the right is fundamental to the American system. This is exactly the test appiled in Duncan.32 However, the decision, by focusing on the historical evidence of the fundamental nature of the right to trial by jury, failed to state the fundamental political role which the jury played in the federal system at the time Duncan was decided. The political function of the jury most frequently commented on is jury nullification-a jury's refusal to enforce harsh laws either at all (by returning a verdict of not guilty) or to their full measure (by convicting defendant of a lesser included offense).33 Yet standing alone nullification does not seem enough to make trial by jury fundamental to the American system. Obviously nullification serves to check the arbitrary power of a tyrant. In the American system, however, the people elect their own legislators, and are protected in the publicizing of their grievances and against the arbitrary exercise of governmental power. It may be asked why, then, is there a fundamental need for the jury to be able to nullify constitutional laws. One answer is found in the language of the sixth amendment which requires a jury to be composed of persons "of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law."34 Clearly, this requirement has little to do with accuracy. It is rather an affirmation of the "community's" prerogative not to apply the criminal sanctions ordained by a superior political entity in which the voice of the community was not controlling. Thus, although this community may not determine what is criminal, the jury system gives it some ability to say what is not criminal.35The jury functions as a sort of mini-legislature to check against the tyranny of the majority will.36 The second function of nullification in the American system becomes apparent when it is remembered that the sixth amendment requires that guilt be determined by a unanimous verdict of twelve men.37 It is, then, not simply the jury which has the power to nullify; any single member of the jury has this ability. Turning to the facts of Duncan, can there by any doubt that if Duncan had been tried by a jury which included a Negro, a unanimous verdict imposing a 60 day sentence for slapping the elbow of a white boy would have been extremely unlikely? In a system where a unanimous verdict of twelve men is required, and where the jury must represent a cross-section of the community, the jury plays a significant role in protecting minority groups from the discriminatory application of the criminal law.38 No matter what
33 H. KALVEN& H. ZEISEL, supra note 1, at 68-75, 258-97.

32. 391 U.S. at 149

120 35. See, e.g., State v. Lawrence, Utah 323, 234 P.2d 600 (1951). 36. Reynoldsv. Sims, 377 U.S. 533, 565, 576 (1964). text. 37. See notes 72 and 73 infra and accompanying PacificCo., 328 U.S. 217 (1946); Ballardv. United 38. See, e.g., Thiel v. Southern States,329U.S. 187 (1946).

34. U.S. CONST.amend. VI.

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one may think of the desirability of this safeguard, it cannot be said to have outlived its usefulness. A number of cases support this analysis of the jury's functions. The right to serve on a jury has been treated as a right of political participation which may not be denied on the basis of race39 or sex.40 These holdings reflect the jury's legislative role. It has also been held that a minority group criminal defendant may obtain a new trial when convicted by a jury from which members of his group have been systematically excluded.41 Such exclusion does more than affect the accuracy of the jury's verdict. The underlying basis of these decisions may be that the minority group criminal defendant has a political right to have his group proportionally represented in the venire from which the jury is drawn, and the only rationale for such a political right would be the principle of nullification. The various ramifications of this argument are better brought out in connection with a discussion of the Court's decision in Witherspoon v. Illinois.42 For the moment, it is interesting to consider the potential impact of Duncan on state practice. B. Consequences of Duncan At the time of the Duncan decision only three states did not conform with its basic holding that trial by jury is essential for serious crimes.43 Depending on what limits are eventually laid down by the Court, however, the consequences of the decision could be far-reaching. Two main questions must be answered: What is a "serious crime" and to what extent will the federal rules as to the nature and composition of the jury be binding on the states? 1. What are "Serious Crimes"? Pursuant to Duncan, jury trials are now required in the state courts for serious crimes, that is, those for which a jury trial would be a matter of right in a federal court, but the Court does not define serious crime. Petty offenses have traditionally been excluded from broad constitutional language guaranteeing trial by jury in both federal and state constitutions.44 The Court reaffirms the validity of this distinction.45 It
39. Billingsley v. Clayton, 359 F.2d 13 (5th Cir. 1966) stated that Negroes cannot be excluded from juries but held that systematic, purposeful exclusion had not been shown. 40. White v. Crook, 251 F. Supp. 401 (M.D. Ala. 1966). 41. Strauder v. West Virginia, 100 U.S. 303 (1880). See also Hernandez v. Texas, 347 U.S. 475 (1954) (forbidding exclusion of Mexican-Americansfrom jury); Schowgurow v. State, 240 Md. 121, 213 A.2d 475 (1965) (forbidding exclusion of jurors on basis of religion). 42. 391 U.S. 510 (1968). art. 43. LA. CONST. VII, 41; N.Y.C. CRIM. ACT 40 (McKinney 1958); N.J. CT. ANN. 2A:169-4 (1953), as amended (supp. 1968). STAT. amend. VI, interpretedin Smith v. United States, 128 F.2d 990 (5th 44. U.S. CONST. art. Cir. 1942); VA. CONST. I, 8 as interpreted in Ragsdale v. City of Danville, 116 ConstitutionalGuaranty of Trial by Jury, 39 HARV. REV.917 (1926). L. 45. 391 U.S. at 159.

& Va. 484,82 S.E. 77 (1914).See Frankfurter Corcoran, and Petty FederalOffenses the

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is not clear, however, where the line should be drawn between petty and serious crimes. Past Court decisions indicate two criteria. The stress has been placed on the maximum punishment available.46 This punishment need not necessarily be imprisonment.47 The other factor, of somewhat lesser importance, is the nature of the offense. Though punishment may be minimal, other consequences may make it a serious offense.48 It is possible that the dividing line (and it seems that if all 50 states are to be affected, a definite line must be established) may be governed by the definition of a serious crime in the United States Code49 which sets a minimum punishment of six months and a fine of $500 as the division.50 The Court notes these limits,5' but is free to set other limits in the future.52 The six months division would have a great impact only in New York.53 Any lower limit, of course, would have widespread effects and is not likely to be adopted. More important is the issue of what is a "criminal proceeding." A broad reading of that term would greatly enlarge Duncan's impact on the states. Traditionally, however, severe penalties alone have not been enough to make a proceeding "criminal." Instead, that term has been given a narrow reading ;54 it has been applied only to situations where a person has been accused 46. See, e.g., District of Columbiav. Clawans, 300 U.S. 617 (1937) ; Schick v. United States, 195 U.S. 65 (1904) ; Callan v. Wilson, 127 U.S. 540 (1888). 47. Kennedy v. Mendoza-Martinez,372 U.S. 144 (1963) (denationalization). 48. District of Columbiav. Colts, 282 U.S. 63 (1930). 49. 18 U.S.C. 1 (1964). 50. This is substantiated by Cheff v. Schnackenberg,384 U.S. 373 (1966) which involved a criminal contempt proceeding (which did not merit the right of trial by jury until Bloom v. Illinois, 391 U.S. 194 (1968)) where no maximum or minimum sentences were set. The Court held that the six month sentence of imprisonmentwas equivalent to the procedureof prosecutingpetty offenses, and hence a trial by jury was not a matter of right. 51. 391 U.S. at 161. 52. Such a position was advocatedbefore the Court. Brief for the State of New York as Amicus Curiaeat 6, Duncan v. Louisiana, 391 U.S. 145 (1968). See People v. Morganbesser, 293 N.Y.S.2d 397, 400 (Sup. Ct. 1968) which holds as a matter of law that a sentence of one year does not fall within the ambit of Duncan. The Court does not address the problemin which the criminal penalty is a fine alone. Does the possibility of substantial fines insure the right to a jury trial? An analogy may perhaps be drawn to the contempt proceedingagainst Albert Shanker, President of the United Federation of Teachers in which a jury trial was not permitted.The sentence of imprisonmentwould very likely not exceed the six month minimum; the fine of $10,000/day on strike easily met the monetary minimum.This did not sway the New York Court. N.Y. Times, Oct. 31, 1968, at 42, col. 2. 53. The New York Court of Appeals has recently ruled that misdemeanorscarrying a maximum sentence of one year in prison do not require a jury trial. N.Y. Times, Mar. 7, 1969, at 1, col. 8. Perhaps they were influencedby the fact that if New York City were required to grant jury trials for misdemeanors carrying a minimum sentence of six months, the administrativeburden placed on an already overcrowded calendar could not be met. For a graphic and homey discussion of the problemscurrently faced by New York City courts and of the dire consequencesDuncan could have thereon, see People v. Moses, 57 Misc. 2d 960, 294 N.Y.S.2d 12 (City Ct. 1968). The most logical solution would be for New York to reduce all sentences to six months for misdemeanors.New Jersey has ANN. 2A :169-4 already done this in regard to its disorderly conduct statute. N.J. STAT. (Supp. 1968). 54. Gilmore v. United States, 129 F.2d 199, 203 (10th Cir.), cert. denied, 317 U.S. 631 (1942).

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of crime by information or presentment.55 This narrow definition is likely to continue in most areas, but in a few a new appraisal is likely. This is strikingly illustrated by Bloom v. Illinois,56 decided with Duncan, which for the first time brought criminal contempt proceedings within the definition. Furthermore, a synthesis of Duncan and In re Gault57 seems to require the states to afford juveniles the right of trial by jury. Gault applied the due process clause of the fourteenth amendment to juvenile proceedings and held that timely notice, the right to counsel, the right of confrontation and cross-examination, and the privilege against self-incrimination were required. Because the right to a jury trial had not then been incorporated into the fourteenth amendment,58 it was not discussed by the Court. It appears, however, that the Court intends to make the requirements for juvenile proceedings coextensive with the due process clause of the fourteenth amendment. Thus, under Duncan it would require the right of trial by jury in these proceedings.59 Because a sentence of less than six months in juvenile trials is rare60 and because most states do not now provide for trial by jury in juvenile proceedings (as they are neither designated criminal proceedings nor considered adversary proceedings),61 Duncan may have a great impact in this area.62 Another procedure possibly susceptible to change is that of statutory penalties and punitive damages. It has been repeatedly held that a civil action, 55. United States v. Zucker, 161 U.S. 475, 481 (1896). 56. 391 U.S. 194 (1968). 57. 387 U.S. 1 (1967). 58. Estes v. Hopp, 73 Wash. 2d 272, 438 P.2d 205 (1968); Commonwealthv. Johnson, 211 Pa. Super. 62, 234 A.2d 9 (1967). 59. The Supreme Court will soon decide this issue. DeBaker v. Brainard, 183 Neb. 461, 161 N.W.2d 508 (1968), cert. granted, 37 U.S.L.W. 3301 (Feb. 25, 1969). But see People v. Morganbesser,293 N.Y.S.2d 397 (Sup. Ct. 1968). In an effort to support the constitutionalityof state laws, to prevent further congestion of the court calendars and to leave the decision to the New York Court of Appeals, the Court holds that a possible four year reformatorysentence does not entitle defendantto a jury trial. Only Duncan is discussed; no mention is made of Gault. Harvin v. United States, 245 A.2d 307, 311 (D.C. Ct. App. 1968), held that the Federal Youth CorrectionAct does not require trial by jury as youth offender treatment is not punishment.For a view more in line with the analysis in Gault, see United States v. Reef, 268 F. Supp. 1015 (D. Colo. 1967). 60. In re Gault, 387 U.S. 1, 37 n.60 (1967), commitmentin virtually all delinquency cases is for a three year minimum. 61. See, e.g., Pee v. United States, 274 F.2d 556, 559 (D.C. Cir. 1959); People ex rel. Weber v. Fifield, 136 Cal. App. 2d 741, 289 P.2d 303 (1955); In re of Daedler, 194 Cal. 320, 332, 228 P. 467, 472 (1924); Lindsay v. Lindsay, 257 Ill. 328, 100 N.E. 892 (1913); Matter of Ronny, 40 Misc. 2d 194, 242 N.Y.S.2d 844 (Family Ct. 1963); Prescott v. State, 19 Ohio St. 184, 2 Am. R. 388 (1870); Commonwealthv. Fisher, 213 Pa. 48, 62
A.198 (1905); ARIZ. REV. STAT. ANN. 8-229 (1956); N.J. REv. STAT. 2A :4-35

(Supp. 1968). 62. It is possible, of course, that the Court would emphasize the special nature of these proceedingsand not require a jury trial. However, the salutory sentencing aspects of juvenile proceedings could be retained with the simple proviso that a defendant who wished to contest his guilt would be entitled to a jury trial on that issue. It is also likely that the standard of proof required in these proceedings,which is the same as in civil actions, (United States v. Borders, 154 F. Supp. 214, 216 (N.D. Ala. 1957), aff'd, 256 F.2d 458 (5th Cir. 1958); Paige v. United States, 394 F.2d 105 (5th Cir. 1968)) may now be changed to the standard required in criminal proceedings. The Supreme Court remandedthis questionfor considerationin In re Whittington, 391 U.S. 341 (1968) (per curiam).

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usually for debt, will lie when a statute so provides.63Unless the proceeding is technically criminal, the guarantees of the sixth amendment are inapplicable -if the suit is only for a money judgment, it is not criminal because it does not directly involve the personal safety of the defendant.64Yet the penal nature of such a system is obvious and the consequences of losing such a suit may be disasterous. In two old cases the Supreme Court gave some recognition to the criminal character of these suits by holding that a defendant therein could invoke the fifth amendment guarantee against self-incrimination.65It is possible, therefore, that the Supreme Court will reconsider its characterization of such actions and bring them within the ambit of Duncan; but such a result is far less likely here than in the case of juvenile proceedings where the result usually is incarceration. Other state procedures will have to be defined in the light of Duncan but are less likely to be labelled criminal. At first glance, the process of civil confinement for narcotics addicts seems a prime candidate for that denomination. Here, as in juvenile proceedings, the result can be imprisonment.66New York and California provide for jury trials in these proceedings yet consider them
civil and employ the procedure for civil suits.67 The Massachusetts and federal

statutes do not provide for jury trials.68 But given the special nature of the narcotics problem and the Court's friendly attitude toward civil commitment as evidenced in Robinson v. California,69a holding that such a procedure is criminal in nature is unlikely.70
2. Federal Jury Standards and the States. The greatest potential impact 63. Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320 (1909); Hepner v. United States, 213 U.S. 103 (1909). 64. United States v. Zucker, 161 U.S. 475, 481 (1896). 65. Lees v. United States, 150 U.S. 476 (1893); Boyd v. United States, 116 U.S. 616 (1886). & 66. 42 U.S.C. 3411-26 (Supp. III, 1968) (one year); CAL.WELFARE INST'NS ch. CODE 3100-11 (West 1966); MASS.ANN. LAWS 111A, 3-4 (Supp. 1965) (three LAW 206, as amended (McKinney Supp. 1966) (three HYGIENE years) ; N.Y. MENTAL L. years). See generally Aronowitz, Civil Commitmentof Narcotic Addicts, 67 COLUM. REV.405 (1967).
67. CAL. WELFARE & INST'NS CODE 3108 (Supp. 1968); N.Y. MENTAL HYGIENE LAW 206, as amended (McKinney Supp. 1968), upheld in In re Narcotic Addiction Con-

trol Comm'n,29 App. Div. 2d 72, 285 N.Y.S.2d 793 (lst Dep't 1967). 68. 42 U.S.C. 3412-14 (Supp. III, 1968): MASS. ANN. LAWS: ch. 111A, 3-4 (Supp. 1968). 69. 370 U.S. 660 (1962). 70. The other proceedings are less questionable. Habeas corpus has traditionally been a civil proceeding.See Hodge v. Huff, 140 F.2d 686 (D.C. Cir.), cert. denied, 322 U.S. 733 (1944). Here one is not in danger of losing his safety, he has only to gain his freedom. Were a jury trial to be permitted, every criminal (considering the fact that res judicata does not apply to these petitions) would be entitled to innumerable jury trials. A change here is inconceivable. Deprivation of a privilege has traditionally been held to be a civil proceeding. Disbarment (In re Isserman, 345 U.S. 286 (1953); Ex parte Wall, 107 U.S. 265 (1882)) and probation (Bernal-Zazuetav. United States, 225 F.2d 64 (9th Cir. 1955) ; Strickland v. United States, 114 F.2d 556 (4th Cir. 1940); Riggs v. United States, 14 F.2d 5 (4th Cir.), cert. denied, 273 U.S. 719 (1926)) proceedings fall within this category. Although the privilege concept is no longer a favored one, it is most unlikely that juries will be required in these areas.

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of Duncan comes not from the bare extension of the basic right to a jury, but from the Court's intimation that trial by jury as incorporatedby the fourteenth amendment means precisely what trial by jury means under the federal constitution.71If that is true then the effect on the state judicial systems will be far-reaching. In the federal system, trial by jury means trial by a jury of 12 men72who must reach a unanimous verdict.73The jury trial must be held during the first court proceeding and not de novo at the first appellate stage.74 Many states have variant procedures75including juries of fewer than 12 and a less than unanimous verdict requirement. There is an alternative to the Court's intimation of "lock, stock and bar71. Footnote 30 of the Duncan opinion discusses the requirementsof federal trial by jury. Its answer to Louisiana's objection to the incorporationof these procedural requirements is that "[i]t seems very unlikely to us that our decision will require widespread changes in state criminal processes.... [M]ost of the States have provisions for jury trials equal in breadth to the Sixth Amendment. ..." 391 U.S. at 158-59 n.30. This definitely indicates the incorporation of these peripheral requirements. Fortas' concurrence criticizes the Court's decision to apply the ancillary rules of federal jury trials as does Harlan's dissent. Actually the question as to 12 man juries was put before the Court,but becausethe Court decidednot to apply Duncan retroactively,the answer to this question was deferred. DeStefano v. Woods, 392 U.S. 631 (1968). 72. Patton v. United States, 281 U.S. 276 (1930); Thompson v. Utah, 170 U.S. 343 (1898). Under federal practice there can be consent to 11 jurors if one falls ill. Patton v. United States, supra at 287 n.2. 73. Andres v. United States, 333 U.S. 740 (1948); Patton v. United States, 281 U.S. 276 (1930); Maxwell v. Dow, 176 U.S. 581, 586 (1900). 74. Callan v. Wilson, 127 U.S. 540 (1888). 75. In the following states a jury of fewer than 12 men is provided: (a) in cases in which the maximum sentence may not exceed one year imprisonCONST. 1, 11; ALAS.STAT. 22.15.150,22.15.060,11.75.030 ment: Alaska (ALASKA art. CONST. art. 1 7 (1962) (six jurors in District Magistrate Court)); Idaho (IDAHO CONST. 1, 10, art. 1, 9; IOWA art. CODE 602.39, (1965) (six jurors)) ; Iowa (IOWA 602.15, 687.7 (1966) (six jurors in Municipal Court)); Kentucky (KY. CONST. 7, 11, P. 248; KY REV.STAT. 25.010, 26.010 (Supp. 1966); KY. R. CRIM. 9.82 (six jurors in art. STAT. 21, 10, inferior courts)) ; Oklahoma (OKLA.CONST. 2, 19, 20; OKLA. tit. (1951) ; Laws 1968, ch. 162, 1, 8 (six jurors for misdemeanorsin District Court)); ANN. 18.1-9, 19.1-206 (1960) (five art. Virginia (VA. CONST. 1, 8, 11; VA. CODE jurors in misdemeanorcases)); (b) in county court cases in which punishment may not exceed two years: Texas (TEX. CONST.art 1, 10, 15, art. 5, 17; TEX. CODECRIM. P. ANN. art. 4.01(5), art. ANN. art. 1148, art. 1149, art. 1422 (1953)) ; 33.01 (1966) ; TEX PEN. CODE Declaration of Rights, 16, 22, (c) in all but capital cases: Florida (FLA. CONST. P. art. 5, 22 (1968 revision); FLA. R. CRIM. 1.270, 1.280 (1967) (six jurors)) ; Utah ANN. 78-46-5 (1953) (eight in courts of art. (UTAHCONST. 1, 10, 12; UTAHCODE general jurisdiction, four in courts of inferior jurisdiction)); art. (d) in all but a few serious crimes: South Carolina (S.C. CONST. 1, 18, 25, art. 5, 22; S.C. CODE 15-612, 15-618 (1962)). In the following states, a unanimousverdict is not required: Idaho (IDAHO CONST. art. art. 1, 7 (5/6 verdict for misdemeanors)); Montana (MON. CONST. 3, 23 (2/3 verdict in cases not amountingto a felony)) ; Oklahoma (see (a) of this footnote, supra) 136.610 (1957) (10/12 in all cases except first degree murder)); Texas (see (c) of this footnote, supra) (9/12 in district court misdemeanorcases)). In the following states there is a procedurefor trial de novo at the appellate stage: Kansas (City of Emporia v. Volmer, 12 Kan. 622 (1874) (municipal court trial without jury when jury obtainable on appeal)); Massachusetts (MASS. ANN. LAWSch. 278, 18, 20 (1968)); Minnesota (MINN. STAT.ANN. 484.63 (1961)); North Carolina art. (N.C. CONST. 1, 13; State v. Norman, 237 N.C. 205, 74 S.E.2d 602 (1953)) ; Rhode art. 1, 8); Island (R.I. GEN. LAWSANN. 12-17-1 (1956)); Virginia (VA. CONST. ANN. 50-18-10 (1966)); Wisconsin (Wis. STAT. West Virginia (W. VA. CODE 958.075 (1967)).
(3/4 verdict for misdemeanors)); Oregon (ORE. CONST.art. 1, 11; ORE. REV. STAT.

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rel" incorporation. Generally, when a provision of the Bill of Rights is incorporated into fourteenth amendment due process, the Supreme Court's elaboration of the provision is incorporated as well.76 But this need not be an absolute rule.77Indeed, the Court has left open the door to allowing some variation. In Duncan, while discussing federal standards, it specifically states that the way is always open to reconsider sixth amendment decisions.78 In De Stefano v. Woods,79 the Court interpreted Duncan as having left open the continued vitality of the statement that the right to a jury trial encompasses the right to a unanimous verdict.80 In cases where Duncan does not require trial by jury to what extent must the states meet federal standards when they undertake to provide a jury trial ?81 Obviously, if the Supreme Court, in the future, allows the states to deviate from federal practices where a jury is required, the same leeway will exist where one is not required but is provided. Even if the Court does not allow a deviation where there is a jury right, however, there seems to be good reason for allowing it where there is not such right. A decision to the contrary would affect many states.82 It is true that some cases decided before the states were required to provide jury trials have held that once the states granted this right, the jury trial had to meet constitutional standards of impartiality.83In Witherspoon v. Illinois,84 the Court held that when a jury is entrusted with the imposition
76. Griffinv. California,380 U.S. 609, 615 (1965) Malloy v. Hogan, 378 U.S. 1, 11 (1964); Ker v. California, 374 U.S. 23, 33 (1963); Priendly, The Bill of Rights as a Code of CriminalProcedure, 53 CALIF. REV.929, 935 (1965). L. L. 77. See Hill, The Bill of Rights and the Supervisory Power, 69 COLUM. REV.181, 192-93 (1969)._ 78. 391 U.S. at 158 n.30. 79. 392 U.S. 631 (1968). 80. For a similar discussion see Note, The Supreme Court 1967 Term, supra note 9, at 150. Since the Duncan decision is not retroactive, Destefano v. Woods, 392 U.S. 631 (1968), only those state trials begun after May 20, 1968 must meet the requirementsof unanimous verdict by a 12 man jury. But because the states have not yet changed their practices (which in most cases entails a constitutional amendment) this will still involve a goodly number of retrials. 81. A common example is in the case of a violation of a municipal ordinance tried in the first instance summarilyby a judge with the right of a jury trial on appeal. Most of these offenses do not carry a maximum sentence of six months or a $500 fine. 82. These states provide juries of fewer than 12 in courts not of record or in justice art. of the peace courts: Georgia (GA. CONST. 6, 2-5101; Allen v. Georgia 51 Ga. 264 (1873)); Mississippi (Ex parte Wooten, 62 Miss. 174 (1884)); Missouri (Mo. CONST. art. art. art. 1, 22(a)); Montana (MoN. CONST. 3, 23); Nebraska (NEB. CONST. 1, ANN. 36-5-17 (1964)) ; art. 6); New Mexico (N.M. CONST. 2, 12; N.M. STAT. art. South Dakota (S.D CONST. 6, 6); Vermont (In re Marron, 60 Vt. 199, 12 A. 523 7-427 (1957)). 83. In Parker v. Gladden, 385 U.S. 363 (1966), the Court held that when Oregon decided to hold a jury trial, it was required to prevent influencing the jurors through a prejudiced bailiff. See also Irvin v. Dowd, 366 U.S. 717 (1961) where an Indiana law allowing only one change of venue was held a violation of the fourteenth amendment, and Turner v. Louisiana, 379 U.S. 466 (1965) which interprets Irvin as a case dealing not with the right of a jury trial but with the nature of that trial once the right is accorded.379 U.S. at 471. 84. 391 U.S. 510 (1968). See notes 91 to 166 infra and accompanyingtext.
(1887)); Washington (WASH. CONST. art. 1, 21); Wyoming (WYO. STAT. ANN.

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of the death penalty, it must meet constitutional standards of impartiality and representativeness, despite the fact that the state did not have to provide a jury on that issue. Similarly, the Court has held that while the states are not required to provide a grand jury procedure,85once they do, they must meet equal protection86and due process standards.87Yet, the Court has suggested that it seeks to impose a requirement of fairness on the states and not federal technicalities.88 In particular, the Court should not impose federal requirements when the state chooses to provide a jury trial for petty offenses. The indication in Duncan that federal requirements will be imposed on constitutionally required juries suggests that the Court treats jury trial as a political and not a due process right. As noted above, the requirement of a unanimous verdict of 12 men is an important part of the political protection afforded by a jury trial. On the question of fundamental procedural fairness, it is relatively insignificant.89If the right to trial by jury is a political right, there seem-slittle justification for applying it against the states in a watereddown form.90 If anything the states are more likely than the federal governmientto oppress minorities by the discriminatory enforcement of criminal law. Arguably the need for "community" nullification is greater in the federal context because of the remoteness of the federal government, but in most states the social and economic characteristics of its various communities vary significantly. It is difficult to gauge the strength of the Court's commitment to the idea of nullification. Explicit discussion of the question is not to be expected. Nullification is the inconsistency between the rule that the jury will be sworn to apply the law and the rule that the courts will not question their obvious failure to do so. The balance is obviously a delicate one. Any discussion of jury nullification might convey the erroneous impression that the defendant is entitled to an instruction that the jury need not apply the law. However, further indications of the Court's attitude toward nullification are contained in its Witherspoon decision.
II. WITHERSPOON V. ILLINOIS: THE JURY AND CAPITAL PUNISHMENT

In September 1959, William Witherspoon killed a Chicago policeman while fleeing arrest. He was tried by a jury, convicted of murder, and sen85. Hurtado v. California, 110 U.S. 516 (1884). 86. Pierre v. Louisiana,306 U.S. 354 (1939). Accord, Shepherd v. Florida, 341 U.S. 50 (1951) ; Akins v. Texas, 325 U.S. 398 (1945); Martin v. Texas, 200 U.S. 316 (1906); Rogers v. Alabama, 192 U.S. 226 (1904); Carter v. Texas, 177 U.S. 442 (1900); Bush v. Kentucky, 107 U.S. 110 (1882). 87. Reece v. Georgia, 350 U.S. 85 (1955) where a state's refusal to consider the
merits of a defendant's objection to the composition of the grand jury was held a violation of fourteenth amendment due process. 88. See Turner v. Louisiana, 379 U.S. 466 (1965). 89. See supra notes 23 to 26 and accompanying text. 90. Malloy v. Hogan, 378 U.S. 1, 10 (1964).

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tenced to death. After unsuccessful appeals in state and federal courts, in February 1965 he started over in the Illinois courts with a new theory: that his constitutional rights were denied him because the trial court excused for cause all prospective jurors who admitted to having any scruples against capital punishment.91Witherspoon argued that exclusion for scruples was too broad and that jurors were being challenged whose scruples did not prevent them from properly exercising the discretion granted to them. Such juries, it was argued, did not represent a fair cross-section of the community (contrary to the line of cases prohibiting exclusion of any significant, definable group in the community) and were biased in favor of the prosecution on both the issues of guilt and penalty.92 The Illinois courts rejected this theory, but in Witherspoon v. Illinois,93 the Supreme Court agreed that jurors were being excluded who could exercise their discretion within the broad limits set by law, and that their exclusion produced a jury biased against the defendant on the penalty issue. The Court did not agree, however, that excluding these qualified jurors produced prejudicial bias on the guilt issue. The Court held that: 1. When jurors are given complete discretion to decide whether to impose the death penalty, jurors cannot be excluded from the jury because they express reservations about capital punishment unless they would automatically vote against the death penalty without regard to any evidence that might be developed at trial, or unless their scruples would prevent them from making an impartial decision on defendant's guilt.94 2. These standards are binding on the states because they are required the sixth amendment guarantee of an impartial trial, as applied to the by states through the fourteenth amendment.95 3. Excluding scrupled jurors has not been shown to produce a biased guilt determination; therefore, convictions made by juries from which scrupled jurors were excluded are constitutionally sound.96 4. The decision is retroactive and defendants can demand new trials on sentencing where death sentences were given by improperly constituted juries.
91. In Illinois, at the time defendant was tried, any juror could be excluded who "state[d] that he has conscientious scruples against capital punishment,or that he [was] ... opposed to the same." ILL.REV.STAT.ch. 38, 743 (1959). This statute has been ch. replaced by one allowing simply challenge for cause (ILL. REV.STAT. 38, 115-4(d) (Supp. 1967)) but the Illinois Supreme Court held in People v. Hobbs, 35 Ill. 2d 263, 220 N.E.2d 469 (1966), cert. denied 386 U.S. 1024 (1967), that the state's right to challenge scrupledjurors was unaffected.In People v. Witherspoon,36 Ill. 2d 471, 224 N.E.2d 259 (1967), the Illinois Supreme Court held that scrupled jurors are prejudiced in the defendant'sfavor because they oppose one of the possible penalties, and therefore can be excluded. The Supreme Court granted certiorari in 389 U.S. 1035 (1968). 92. Brief for Petitioner at 10-11, Witherspoon v. Illinois, 391 U.S. 510 (1968). 93. 391 U.S. 510 (1968). 94. 391 U.S. at 522-23 n.21. 95. Parker v. Gladden,385 U.S. 363 (1966); see also Turner v. Louisiana, 379 U.S. 466 (1965). 96. 391 U.S. at 523 n.21.

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However, life imprisonment sentences, imposed when the jury had a choice between that and the death penalty, will stand.97 Thus the Court invalidated a procedure long used in the majority of states-by statute or case law, challenges for cause are allowed against jurors who say they have conscientious or religious scruples against the death penalty.98 The process by which the Court reached its decision, however, is far
97. This was indicated in footnote 21 of the Witherspoon opinion and was the holding in Bumper v. North Carolina, 391 U.S. 543, 544-45 (1968), Witherspoon's companion case, where defendant received life imprisonment for rape. The North Carolina statute gave the jury a choice between death and life imprisonment. It is unclear what will happen in the future with an Illinois-type statute where the jury can choose between death, life imprisonment, or imprisonment for as little as 14 years, ILL. REV. STAT. ch. 38, 360 (1959). The Court stated in footnote 21 that Witherspoon did not affect the validity of any sentence other than death. But when the three-way choice problem is squarely presented the Court may go the other way. Under an Illinois-type statute, a defendant who received life imprisonment could argue that a jury from which scrupled jurors were not excluded would be more likely to sentence him to a term of years. The Koestler quotation in footnote 17 of the opinion suggests that the Court may think that two groups of jurors differ in their charity toward defendants as a general matter, and not just in their attitude toward the death penalty; if this is true, then if the jury has a three-way choice, defendant should have a new trial. Note that admitting that nonscrupled jurors may not exercise sufficient charity on sentencing is not the same as sayin sentencing they have discretion. The Supreme ing they convict more often-since Court of Alabama recently reviewed a sentence of life imprisonment in a rape case where the jury had discretion to sentence the defendant to death, life imprisonment or imprisonment for as little as 10 years and held that Witherspoon did not specifically apply because the defendant did not receive the death penalty. Unfortunately, there was no discussion of the ramifications of the jury's three-way choice. Seals v. State, 282 Ala. 586, 213 So. 2d 645 (1968). 98. Alabama, Georgia, Louisiana and Texas, among others, similarly allow challenges simply for belief. In a number of other states, statutes provide that jurors can be excluded if their scruples preclude them from finding the defendant guilty. See, e.g., MINN. STAT. ANN. 631.31(8) (1947); OHIo REV. CODE ANN. 2945.25 (1964); DEL. CODE ANN. tit. 11, 3301 (1953). These statutes date from the time when the death penalty was mandatory for some crimes and the jury had no discretion to recommend life imprisonment or mercy. State legislatures wanted to prevent jurors who opposed the death penalty from aquitting a guilty defendant to save him from hanging. Oberer,

Denial of Fair Trial on Issue of Guilt? 39 TEXAS L. REV. 545, 551 (1961). When juries were given the discretion to impose imprisonment rather than the death penalty in the appropriate case, many of the old statutes remained on the books, even though the nullification problem in the guilt determination no longer existed. Some states construed the old statutes to mean that jurors could be challenged if their scruples interfered with imposing the death penalty. See, e.g., MASS. GEN. LAWS ch. 278, 3 (1968), discussed in Commonwealth v. Ladetto, 349 Mass. 237, 246, 207 N.E.2d 536, 542 (1965); Mo. ANN. STAT. 564.130 (1952), discussed in State v. Pinkston, 336 Mo. 614, 618-19, 79 S.W. 2d 1046, 1049 (1935). Only Indiana has a statute specifically allowing challenges for cause if the juror's scruples absolutely preclude affixing the death penalty. IND. ANN. STAT. 9-1504 (1956). Iowa does not allow challenges for scruples at all, although the state may ask about scruples and exercise its peremptory challenges against scrupled jurors, State v. Lee, 91 Iowa 499, 60 N.W. 119 (1894); State v. Wilson, 234 Iowa 60, 91, 11 N.W.2d 737, 752 (1943). Some states have only general statutes allowing challenges for cause, but these have been construed to allow challenges of scrupled jurors. See, e.g., Commonwealth v. Minney, 216 Pa. 149, 65 A. 31 (1906). The federal rule is very similar to the Illinois rule in allowing challenge for belief without inquiry into how this belief would affect the juror's decision. Logan v. United States, 144 U.S. 263, 298 (1892), allowed challenges for "conscientious scruples in regard to the infliction of the death penalty for crime," because these scruples prevent the juror "from standing indifferent between the government and the accused, and from trying the case according to the law and the evidence . . ." See also United States v. Puff, 211 F.2d 171 (2d Cir.), cert. denied, 347 U.S. 963 (1954), saying that a judge can excuse jurors who say they have scruples without identifying the circumstances where the juror would insist on clemency.

Does Disqualification of Jurors for Scruples against Capital Punishment Constitute

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from clear. Yet an understanding of that reasoning is essential to any attempt to delineate the true scope of the opinion. A. The Opinion 1. The Court's Reasoning. The apparent backbone of Justice Stewart's opinion for the majority is the contention that by excluding scrupled jurors from a jury which has the discretion to impose the death penalty, the State of Illinois has created a jury which falls "woefully short of that impartiality to which the petitioner was entitled under the Sixth and Fourteenth Amendments."99 Such a tribunal is "organized to return a verdict of death,"100and by its use the state has "crossed the line of neutrality"101and "stacked the deck against the petitioner."102 It is somewhat difficult, however, to apply the constitutional concept of jury impartiality to the scrupled juror situation. Impartiality has generally been thought of as a requirement concerned with the integrity and accuracy of the fact-finding process.'03 Impartiality requires the exclusion of jurors who have prejudged the case or who will be influenced by factors other than the evidence presented in court. Justice Stewart, in fact, cites two cases of this type. In Irvin v. Dowd,104 the Court found that minimal standards of due process were violated when defendant was tried in a locality where the murder he allegedly committed was highly publicized and 8 of 12 jurors said they thought he was guilty but that they could be impartial nonetheless. In Turner v. Louisiana,105defendant's right to an impartial jury was violated because the key witnesses for the prosecution were the deputy sheriffs who had charge of the jurors, ate with them, and freely conversed with them for three days. Justice Stewart tries to present the scrupled juror problem as an issue of accuracy and thereby make the traditional concept of impartiality applicable. He notes that in Illinois, as in other states, the jury is given broad discretion to decide whether or not death is "the proper penalty" in a given case, and a juror's general views about capital punishment play an inevitable role in any such decision. Guided by neither rule nor standard ... a jury that must choose between life imprisonment and capital punishment can do little more -and must do nothing less-than express the conscience of the community on the ultimate question of life or death.106 In other words, the standard of accuracy for this discretionary determination
99. 391 U.S. at 518. 100. 391 U.S. at 521. 101. 391 U.S. at 520. 102. 391 U.S. at 523. 103. See, e.g., Tumey v. Ohio, 273 U.S. 510 (1927). 104. 366 U.S. 717 (1961). 105. 379 U.S. 466 (1965). 106. 391 U.S. at 519.

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is the conscience of the community. Because "in a nation less than half of whose people believe in the death penalty, a jury composed exclusively of such the exclusion of scrupled jurors people cannot speak for the community,"107 will lead to an inaccurate determination and, therefore, denies the right to an impartial jury. On the other hand, Justice Stewart found no proof that the exclusion of scrupled jurors leads to an inaccurate determination of guilt, and thus saw no need to reverse Witherspoon's conviction. The fault with this reasoning is that it does not premise the commlunity conscience standard of accuracy on the Constitution. It is based rather on the legislative provision for jury discretion on the death penalty. There is no direct indication that the role of the jury as an arbiter of the punishment to be imposed is anything but a question of state law. The opinion does not hold, as Justice White notes,108that the Constitution requires the death penalty to be (liscretionary rather than mandatory. Nor does the Court hold that discretion on the death penalty must not be given to a judge alone.l09 In either case the death penalty may be imposed without reference to the conscience of the community. Similarly, the State of Illinois had made it perfectly clear that it did not intend the conscience of the community to be the standard of accuracy for the choice between life imprisonment and death. It did this by enacting section 743 of the Illinois Criminal Code which requires the exclusion of scrupled jurors. If the conscience of the community standard is rooted in the state policy of discretion, why cannot the state constitutionally limit its policy of discretion by providing for exclusion? Moreover, to the extent that there is a conflict between the state's policy of discretion and its policy of exclusion, well-settled rules of federal jurisdiction require that this conflict be resolved by the courts of Illinois.110 Presumably in affirming Witherspoon's sentence the Supreme Court of Illinois found exclusion of scrupled jurors to be consistent with the jury's discretion on the death penalty.11 Nonetheless, the statutory provision for exclusion is held unconstitutional, apparently on the novel ground that it is inconsistent with the statutory provision for discretion as construed by the Supreme Court of the United States. There is a way in which the reasoning of the Court might be partially rescued. Normally it is a matter of indifference whether a state achieves some policy through a rule of procedure or through a rule of positive law.112 It
107. 391 U.S. at 519-20. 108. 391 U.S. at 540. 109. But see notes infra 146 to 150 and accompanying text for discussion of the mandatory death penalty and judge-sentencing in capital cases. 110. Thus, in Herb. v. Pitcairn, 324 U.S. 117, 125-26 (1945), the Court said: "Our only power over state judgments is to correct them to the extent that they incorrectly adjudge federal rights" (emphasis added). 111. People v. Witherspoon, 36 Ill. 2d 471, 224 N.E.2d 259 (1967). 112. Guaranty Trust Co. v. York, 326 U.S. 99, 109 (1945).

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might, however, be argued that the fourteenth amendment prohibits a state from achieving a sentencing policy by a rule excluding jurors for cause unless that policy is found in the body of substantive law which the jury is sworn to apply. For example, Justice Stewart notes in a footnote that Illinois has not "defined a category of capital cases in which 'death [is] the preferred penalty.' "113 The inference is that if Illinois does so, the inclusion of scrupled jurors will not be required. On this reading of the case, Witherspoon need have no real effect on state practice. A state would merely have to enact guidelines for the jury to use in deciding to impose the death penalty.114 Because the standard of accuracy would be the guideline and not the conscience of the community (and this would be true even if some provision were made in the guidelines for contemporary community standards), impartiality would not require the inclusion of scrupled jurors. Is it possible to be content with this limited reading of Witherspoon? The dissenting opinions warn the commentator to be wary of reading the majority opinion too superficially. Justice Black, after discussing what the Court's opinion "must be read as holding" continues: "Finally, I want to point out that the real holding in this case is, at least to me, very ambiguous."115 Justice White says that the majority's "conclusion is reached because the Court says so, not because of the reasons set forth in the opinion."l16 He may either be charging the majority with having reached an unprincipled decision or he may be saying that the legal principles behind the Court's conclusion are not discussed in the majority opinion. There is a good reason to believe that the latter is true. In any event, it is at least strange that the Court should overrule Logan v. United States117 without any discussion of the reasoning of that opinion. 2. The True Basis of Witherspoon. As in Duncan, the Court in Witherspoon attempts to demonstrate that its decision is dictated by fair-trial considerations. As in Duncan, the effort is not successful. The fair trial analysis given above requires either improper reliance on state law or an improbably narrow holding and leaves a central question unanswered: Why did the Court conclude that the state might exclude jurors who "would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them . ?"118
113. 391 U.S. at 519 n.l5. 114. The state might indicate its preference for the death penalty by saying that death was the proper penalty unless the jury recommendedmercy. The conscience of the community would then no longer be the standard. Some states have this formulation already; see 391 U.S. at 525-26 n.4. 115. 391 U.S. at 538. 116. 391 U.S. at 540. 117. 144 U.S. 263 (1892). Logan is only cited once, in footnote 22; the Court finds that reliance by the states on that decision should not preclude retroactive application

of Witherspoon. 118.391 U.S. at 522 n.21.

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The Court's willingness to allow the states to exclude these jurors is inconsistent with the argument that the standard of accuracy for purposes of jury impartiality is the conscience of the community. Clearly, those who would never impose the death penalty are a part of the conscience of the community, and if they are excluded the jury does not impartially represent that conscience. The most the majority can say for the argument that the conscience of the community does not include those irrevocably opposed to the death penalty is that the state "could argue that the resulting jury was simply 'neutral' with respect to penalty."119Justice Stewart does not stop to express his opinion about the validity of such an argument. The exclusion of jurors who will automatically vote against the death penalty cannot be explained unless the political function of the jury is examined; the exclusion of these jurors and inclusion of other scrupled jurors depends on the proper constitutional scope of jury nullification. A careful reading of the four Witherspoon opinions reveals a vigorous debate on the nullification issue; the majority's view on the proper scope of nullification is the true basis for its decision.120 In his opinion, Justice Stewart notes that "[a] man who opposes the death penalty . . . can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror."'21 This statement provides a basis for the exclusion of that group which would never impose the death penalty, because such jurors are not capable of exercising a discretion to impose the death penalty and, therefore, cannot obey the juror's oath to consider all penalties provided by law.122The Court elaborates on this argument in footnote 21:123 119. 391 U.S. at 520 (footnote omitted) (emphasis added). 120. Prior to Duncan, the Court had required that state juries not be so constituted as to deny proceduraldue process or equal protection. Hernandez v. Texas, 347 U.S. 475 (1954); Thomas v. Texas, 212 U.S. 278 (1909); Strauder v. West Virginia, 100 U.S. 303 (1880). Although the majority opinion is cast in procedural due process trappings, this Note argues that it is better understoodas concerning substantive due process. But

immunities of citizenship). 121. 391 U.S. at 519 (emphasis added). 122. Under Witherspoon'sreasoning, it would seem that the juror who would always sentence a murderer to death regardless of the circumstances could be excluded from the jury, because he too cannot exercise the discretion given him by law. But see Justice Black's dissent, 391 U.S. at 536. 123. 391 U.S. at 522 n.21. Some may find it of interest that the majority's argument for the jury's role in nullifying harsh penalties may be found in footnotes 6, 9, 12, 15, 18, and 21. Footnote 5 treats the mandatory death penalty problem (compare footnote 18), footnote 7 gives an argument supportingthe inclusion of those who believe that the death penalty should never be inflicted (compare footnote 9), and footnote 17 consists of the following quotation: The division is not between rich and poor, highbrow and lowbrow, Christians and atheists: it is between those who have charity and those who have not .... The test of one's humanity is whether one is able to accept this fact-not as lip service, but with the shudderingrecognition of a kinship: here but for the grace
ON of God, drop I. A. KOESTLER, REFLECTIONS HANGING166-67 (1956).

IN THE HISTORY OF THE compare 2 W. CROSSKEY, POLITICS AND THE CONSTITUTION UNITED STATES1090 (1953) (the Bill of Rights is included within the privileges and

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The most that can be demanded of a venireman ... is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings. To say that a juror need only be able to consider the penalties provided law has little to do with a fair and accurate trial. Rather it concerns the by problem of jury nullification. As noted above,124nullification is the gap between the juror's oath to render a true verdict according to law and evidence, and the state's inability to question his obvious failure to do so. This gap can be closed, and the possibility of nullification eliminated, if the state may exclude jurors who have doubts about the rightness of the law or are irrevocably opposed to it and are thus more likely to nullify. The problem is particularly acute in cases involving capital punishment because the willingness to nullify is so widespread.125The point is made clearly by Justice White: The legislature undoubtedly felt that if all citizens could serve on the jury, and if one citizen with especially pronounced "scruples" could prevent a decision to impose death, the penalty would almost never be imposed.126 Whether or not under Illinois law the death penalty is the proper penalty in a given case, it is clearly a legal penalty and may be rightly imposed. Scrupled jurors are those who have doubts about whether death should be a legal penalty. They doubt, in other words, that the law is right. They are, as Justice Black argues,127biased against it. The majority finds that a juror may not be excluded because he has doubts about a law making death a legal penalty, as long as he is willing to consider applying the law and imposing the penalty. On the other hand, a juror who is so opposed to the law that he would never consider death a proper penalty may be excused. In this way the Court distinguishes between permissible and impermissible nullification. This rule is a principled basis for the Witherspoon decision, and is perhaps its real holding. Moreover, this reading provides a principle which would apply even if the state had not given the jury discretion on the death penalty. Indeed the Court's actual holding does not rely on such discretion. Thus, the Court said: Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.128 note 124.See text accompanying 90 supra. 125. Comparefootnote 19 in the majority opinionwith footnote 10 in Justice opinion. Douglas' 126.391 U.S. at 542 (footnoteomitted). 127.391 U.S. at 539-40. 128.391 U.S. at 521-22(footnoteomitted).

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The majority's view that a juror need only be able to consider applying the death penalty and may be sworn as a juror even though he doubts that death should be a legal penalty may be usefully contrasted with the positions taken by Justice Black, dissenting, and Justice Douglas, concurring. Justice Black believes that "the Court's decision today goes a long way to destroying the concept of an impartial jury as we have known it."129For him the jury required by the Court is biased against one of the "critical issues" in a trial. He indicates that by bias against an "issue" he means bias against the law by quoting from Logan v. United States: A juror who has conscientious scruples on any subject which prevent him . . . from trying the case according to the law and evidence, is not an impartial juror. This Court has accordingly held that a person who has a conscientious belief that polygamy is rightful may be challenged for cause in a trial for polygamy. . . . And the principle has been applied to the very question now before us by Mr. Justice
Story . 130

Justice Black appears to believe that it is not enough for the juror to be able to consider applying the law. The juror must believe that the law should be applied. If he does not believe this, he is biased against the law and is not fit to be sworn as a juror. Justice Douglas takes a position on the other side of the majority. He argues that it is wrong to permit the exclusion of those who will automaticallv vote against the death penalty. Thus, he would favor the broadest scope for nullification. However, he too meets the problem indirectly. He agrees with Justice Black that Logan v. United States held that a juror must not be biased against trying the case according to the law.131He argues, however, that: [W]here a State leaves the fixing of the penalty to the jury, or provides for a lesser penalty on recommendation of mercy by the jury, or gives the jury the power to find guilt in a lesser degree, the law leaves the jury great leeway. Those with scruples against capital punishment can try the case "according to the law and the evidence," because the law does not contain the inexorable command of "an eye for an eye." Rather "the law" leaves the degree of punishment to the
jury.132

Justice Douglas' reasoning necessarily approves nullification. Since death is a legal penalty under Illinois law, inclusion of those who are so opposed to the death penalty as to have decided to treat it as an illegal penalty will require including those who are certain to nullify the law. Justice Douglas further criticizes the majority opinion for failing to re129.391 U.S. at 539. 130. 144 U.S. 263, 298 (1892), quotedin 391 U.S. at 536. 9 statesthat, "Therulingon the 'impartial 131.Footnote of JusticeDouglas'opinion on law jury' in Loganv. United States, seems erroneous the facts and the applicable of that case." at 529. 132.391 U.S.

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verse Witherspoon's conviction. He argues that Witherspoon concerns the right to a representative or cross-section jury, and that this right exists both for the determination of guilt and penalty.l33 He notes that the Court has not in the past required a showing of prejudice through the denial of this right and he contends that it is inconsistent to require such a showing here. The majority does not directly meet this point. It would quite obviously have been hard on the states for the Court to reverse without warning the convictions of those tried by defective juries.l34 Moreover, as long as the jury has sentencing discretion on the death penalty, there is ample opportunity for nullification on the penalty issue. Since defendants sentenced by improperly composed juries will get new sentencing trials, jury nullification can operate there. In addition, it is possible to challenge Justice Douglas' analysis of Witherspoon as a cross-section case, and hence his contention that prejudice need not be proved. First, cross-section cases have traditionally involved the exclusion of well-defined groups in the population-workingmen, women, racial groups, nationalities.135 Witherspoon involves the exclusion of a group holding certain ideas and opinions; perhaps since opinion groups are more amorphous than racial groups, for example, and prejudice resulting from their exclusion is less obvious, the Supreme Court was justified in requiring specific proof of harm. As was noted above,136 the cross-section requirement is closely related to nullification. However, the argument made by the defendant on the guilt issue -that non-scrupled jurors are prosecution-prone-is based on the requirement that the jurors evaluate the evidence accurately, and not on their ability to refuse to return a verdict consistent with their evidentiary finding. The right to a jury that can return an unbiased determination of guilt has not been treated as a cross-section issue. Traditionally, in those cases where the courts have found that the composition of the individual jury affected the accuracy of the fact determination-for example, where eight jurors said they thought defendant was guilty but that they could be impartial nonethelessl37the courts have required proof of prejudice in the specific case before ordering a new trial with an impartial jury.l38
134. See footnote 22 of the opinion, arguing that if jurors are biased, jury composition must be reformed retroactively. West Virginia, 100 U.S. 303 (1880) (Negroes); Labat v. Bennett, 365 F.2d 698 (Sth Cir. 1966), cert. denied, 386 U.S. 991 (1967) (wagearners); White v. Crook, 251 F. Supp. 401 (M.D. Ala. 1966) (women); Schowgurow v. State, 240 Md. 121, 213 A. 2d 475 (1965) (belief in God required to serve, defendant a Buddhist). 136. See supra note 41 and accompanying text. 137. Irvin v. Dowd, 366 U.S. 717 (1961). 138. See also Turner v. Louisiana, 379 U.S. 466 (1965); Dennis v. United States, 339 U.S. 162, 171-72 (1950) (defendant, a Communist, failed to prove actual bias of governmentemployeeswho served as jurors in his case; Court noted that the "[p]reserva-

133.391 U.S. at 531.

v. Strauder v. 135. Hernandez Texas. 347 U.S. 475 (1954) (Mexican-Americans);

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Justice White's dissenting opinion contains indications that he thought the majority was approving nullification and advances an argument against the need for such a power. He states: All Illinois citizens, including those who oppose the death penalty are assured by the Constitution a fair opportunity to influence the legislature's determinations about criminal sentences. Reynolds v. Sims, 377 U.S. 533 (1964) and succeeding cases. Those opposing the death penalty have not prevailed in that forum, however.139 Justice White's contention is that in a democracy the way to change prevailing law is through the legislature and not through the jury. He doubts, in other words, whether it is necessary or desirable for the Court to give the jury the quasi-legislative function of nullification. Consequently, he finds the Illinois law which "merely excludes those with doubts in policy about one of the punishments among which the legislature sought to have them choose seems [to be] an entirely reasonable . . . legislative act."'40 The majority, however, takes another view of the proper function of the jury. [O]ne of the most important functions any jury can perform in making such a selection [between life and death] is to maintain a link between contemporary community values and the penal system -a link without which the determination of punishment could hardly reflect "the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101 (opinion of THE CHIEF JUSTICE, joined by MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, and Mr Justice Whittaker).141 The Court's citation of Trop may have special significance. Although the Court quoted Trop for the proposition that standards of punishment evolve through time, by means of jury decisions, the case itself said in dictum that the death penalty was not cruel and unusual punishment. Justice Stewart seems to be saying that one reason the Court has not held the death penalty to be cruel and unusual punishment is because the jury has the power to nullify this penalty. The proposition may be that the jury is better suited than the Court to implement the eighth amendment. The prevailing view on permissible punishment in 1789 is clearly not the test for implementation. Civilization develops and our conceptions can no more be tied to 1789 than they can be tied to the time when a man was executed because he stole a loaf of bread. Nor does the "shock the conscience" test appear adequate. Today capital punishmnt shocks the conscience of some but not others. In applying this test a Justice can only
tion of the opportunityto prove actual bias is a guarantee of a defendant'sright to an
impartial jury").

141. 391 U.S. at 519 n.15.

140.391 U.S. at 542.

139. 391 U.S. at 541.

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give his very personal opinion. Yet apart from these two tests, there seems to be no convincing principle which the Court might use to implement the eighth amendment. Moreover, if the Court should believe that the death penalty is appropriate in some cases, the line between cruel and permissible punishment would be most difficult to draw. The jury, on the other hand, is linked to community standards. The jury can tailor individual cases to the community sentiment and thus avoid the problems of judicial line drawing.142The solution is not perfect since the composition of the jury is fortuitous. But by insisting that the jury include those whose conscience is shocked by capital punishment yet who are willing to consider the penalty in a proper case, the Court has civilized the law significantly.143In the final analysis, Witherspoon may not be a case of jury nullification, but of jury application of the law of the Constitution. The conscience of the community is truly the standard of accuracy for the application of the eighth amendment.144 B. Future Developments It seems likely that it was the Court's dissatisfaction with the death penalty that led it to sanction some nullification by the death penalty jury. The question remains whether this nullification rationale extends beyond the death penalty to other instances of jury sentencing or to jury determinations of guilt where it has no sentencing discretion. It must also be asked whether the defendant has a right to have the jury participate in the sentencing process. If this right exists, it would affect the mandatory death penalty and sentencing by judges in capital cases.145
142. See generally Henkin, Foreword: On Drawing Lines. The Supreme Court, 1967 L. Term, 82 HARV. REV.63 (1968).

(1968), where defendant is arguing that imposition of the death penalty for robbery is cruel and unusual punishment.The Court may decide in Boykin that there is no doubt today that such punishment"shocks the conscience"or is cruel and unusual; the question may not be sufficientlyunsettled to require individual jury judgment. In another case on certiorari before the Supreme Court (Maxwell v. Bishop, 37 U.S.L.W. 3219 (1968)), the defendant is arguing that the jury's unlimited sentencing discretion in capitial cases is contrary to due process. Witherspoon may be read to say only that the jury's discretion must be unlimited in the direction of leniency. 144. Cf. Roth v. United States, 354 U.S. 476 (1957), giving the jury the task of deciding whether, under contemporarycommunity standards, allegedly obscene material taken as a whole appeals to prurient interest. This role has been supported most recently in Chief Judge Lumbard'sdissent in United States v. A Motion Picture Entitled "I am Curious-Yellow,"404 F.2d 196, 202 (2d Cir. 1968). A similar role for the jury is in deciding whether a given activity constitutes a clear and present danger; see Douglas dissenting in Dennis v. United States, 341 U.S. 494, 587 (1951). 145. Does the erroneous exclusion of a single juror-or a few jurors-constitute reversible error? Footnote 21 says a state may execute "a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakeably clear [that they would automatically vote against the death penalty or that they would not be impartial on the guilt determination]." (Emphasis added.) Of course the neutrality of individual juries is a matter of probability, but the probabilities should not be skewed against the defendant. If a juror is wrongly excluded, the defendantmust try his chances on getting a favorable juror a second time

143.The Courthas grantedcertiorariin Boykin v. Alabama,37 U.S.L.W. 3167

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1. Mandatory Death Penalty. As Justice White points out, forbidding the mandatory death penalty146would provide "a satisfactory predicate" for Witherspoon. In fact, it can be argued that the majority's implicit rationale does prevent mandatory death sentences. If the decision is to be made in the particular case whether the death penalty would be contrary to the eighth amendment, the mandatory death penalty cannot stand, since it does not allow this individualized decision. The role which Witherspoon gives the juryrepresenting the community conscience in the decision whether a man should be sentenced to death-is a role which may be played in any case. For example in Connecticut, an attempt on the life of a foreign ambassador carries a mandatory death penalty.147 Surely the representatives of the community might believe that the death penalty is not the proper penalty in such a case, even though it is the legal penalty. Those jurors who have doubts about whether the death penalty ought to be the only legal penalty should be able to block the death penalty. This could be done by letting scrupled jurors on the guilt jury, but nullification at that stage would let guilty defendants go free if conviction for a lesser offense was not possible. The preferable solution would be to remove the mandatory aspect. Justice Stewart's opinion suggests a second approach to striking down the mandatory death penalty. Footnote 18 indicates that the Court may, at a later date, decide that nonscrupled jurors are prosecution-prone on the guilt issue and that scrupled jurors must be allowed on the guilt jury. Footnote 18 may be read148to suggest that the Court will find an absolute right to nonprosecution prone jurors. Thus the guilt jury might include jurors who would return a not-guilty verdict in order to save a defendant from death. Although the argument for a balanced jury on the guilt issue is based on considerations of evidentiary accuracy, in the mandatory death penalty case a balanced jury would have the effect of allowing persons on the jury who might block any guilty verdict where the death penalty was mandatory. It is by no means clear that the Court will go this far. The Court can refuse to apply either the rule of Witherspoon or the suggested rule of footnote 18 when the death penalty is mandatory. The Court says in footnote 21
with a juror pool which is somewhat skewed toward a pro-capital punishment crosssection since one of the anti-capital punishment members has been removed.

A recent New Jersey case, New Jersey v. Mathis, 52 N.J. 238, -, 245 A.2d, 20, 27 (1968) said in dictum that the erroneous exclusion of "a single or any specific number of jurors" does not require reversal under Witherspoon because exclusion "does not mean that the balance of the jury list was thereby deprived of representatives of that [anti-capital punishment] sector." The language of Witherspoon seems flatly to contradict the New Jersey court. 146. See compilation of mandatory death penalties in MODELPENAL CODE Appendix D (Tent. Draft No. 9, 1959). 148. Footnote 18 suggests that the state may not exclude from the guilt jury people who may be excluded from the penalty jury. This leaves open the issue whether all scrupled jurors must be allowed on the guilt jury, or whether the state may exclude those jurors who will acquit a guilty defendantto nullify the death penalty.
147. CONN. GEN. STAT. ANN. 53-3 (1960).

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that Witherspoon does not affect the power of the state to exclude jurors whose "attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt." It is unclear, however, whether this caveat refers to the mandatory death penalty situation or to the problem of a prosecution-prone guilt jury.149Moreover, the need to implement the eighth amendment is hardly less pressing because the death penalty is mandatory, and the Court should want to avoid encouraging the states to enact mandatory death sentences in order to avoid the rule of Witherspoon.l50 It should be found that a state may not complain that the scrupled jury is biased on the question of guilt when that bias is caused by the state's refusal to permit discretion. 2. Sentencing by Judges in Capital Cases. If the Court in fact believes that juries are better suited than judges to implement the eighth amendment, it is likely that the trial judge will not be permitted to exercise sole discretion in determining whether the death penalty should be applied. In fact, a trial judge is even less suited to this task than a Justice of the Supreme Court. He is quite properly likely to feel a great hesitation at giving effect to his doubts that the death penalty should be a legal penalty. Footnote 12 of Justice Stewart's opinion gives a hint of the majority's view. He notes that after petitioner's conviction, Illinois law was changed to allow the trial judge to reject the jury's recommendation of death. He finds, however, that "nothing in our decision turns upon whether the judge is bound to follow such a recommendation." The suggestion is that the power of the judge to set aside the sentence of the non-scrupled jury is an inadequate substitute for the possibility of nullification which the Witherspoon rule assures. 3. Jury Sentencing in Non-Capital Cases. Today many criminologists oppose jury sentencing except in capital cases.151Their notion that sentencing is a professional's task seems quite reasonable, and the Court in Witherspoon states explicitly that its decision does not affect jury sentencing in non-capital cases.152 Nonetheless, it is desirable to get beneath the problem. California law provides a maximum sentence of life imprisonment for giving marijuana to a minor under 21 ;153 federal law provides a maximum sentence of five years and $10,000 fine for burning a draft card.154These punishments shock at least this writer's conscience. Whether they are prohibited by the eighth 150.But see JusticeWhite'sdissent,391 U.S. at 542 n.2. If the stateshad to make some much neededweeding before they were enforceable, death penaltiesmandatory might result. But query whetherthe death penaltyshould out of capitalpunishments of ever be required regardless circumstances. 151. The Model Penal Code makes sentencinga questionfor the judge in nonPENAL CODE 6.02 (1962). capital cases. MODEL

149. Comparefootnote 5 with footnote 18.

152.391 U.S. at 523n.21.

153. CAL. HEALTH& SAFETYCODE 11532 (West 1964).

154.50 App. U.S.C. 462(b) (Supp. III, 1968).

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amendment is a debatable but real issue. If the jury is to implement the eighth amendment, it must have some means of nullifying these penalties. It seems feasible to create a limited possibility of nullification without seriously disrupting the judge's sentencing role. The jury should be informed of the penalty or range of penalties which may be imposed and the general criteria which will be used in selecting between authorized punishments.155 Moreover, there seems to be no reason why the jury should not be able to give a recommendation of leniency which the judge would be required to respect. The judge's sentencing role is generally advanced as a protection for the defendant. Even if the Court does not agree that these procedures are constitutionally required, it may be willing to extend the majority's "impartial" jury theory when the jury is given sentencing discretion by state law and refuse to permit the exclusion of jurors who have scruples about harsh non-capital punishments. 4. Unanimous Sentencing Verdict. The sixth amendment has not been held to include the right to have a sentence determined by a jury, and it is suggested immediately above that the creation of such a right in broad terms would not be desirable. However, it was held in Andres v. United States'56 that a federal jury which has a choice between sentencing the defendant to death or less must be unanimous in giving the death penalty. Strangely, it cannot be firmly concluded that this decision applies to the states. One of the many singular things about the majority's opinion in Witherspoon is that it does not at any point cite Duncan v. United States.l57 Justice White appears to see a meaning in this. The States should be aware of the ease with which they can adjust to today's decision .... [R]eplacing the requirement of unanimous jury verdicts with majority decisions about sentence should achieve roughly the same result reached by the Illinois Legislature through the procedure struck down today.158 If the Court requires that the death sentence be by unanimous verdict, it will undoubtedly be extremely difficult to impose this punishment.159 In 156.333 U.S. 740, 749 (1948). 157.391 U.S. 145 (1968). 158.391 U.S. at 542 n.2. couldinfluence 159.The prosecution chaljury composition using its peremptory by lenges against scrupledjurors. However,it seems likely that the state will not be to allowedsystematically challengethose scrupled jurorswho are otherwiseeligibleto In 380 become jury members. Swainv. Alabama, U.S. 202 (1965)-a case in whichthe that the state systematically excludedall Negroes from complained Negro defendant challenges-the SupremeCourt agreed that the state juries by using its peremptory to was couldonlyuse its challenges ensurethatthe tribunal fair andimpartial. Negroes If withoutreference the type of case, the partiesinvolved, to wereuniformly excluded, etc., the but the statewas not just ensuring jury'sneutrality, was discriminating a manner in In the forbidden the 14thamendment. Swain,however, Courtfelt that the defendant by of did not carryhis burden proof.It statedthat he must show that challenging given a normalpractice. a defendant If were tryingto show type of jurorwas the prosecution's that the state was consistentlystriking scrupledjurors, the burdenof proof would
CRIM. PROC. 420 (McKinney 1958). 155. But see N.Y. CODE

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effect the conscience of the community will be the conscience of the most scrupled juror. It is extremely unlikely that the Court would find that the jury's role in implementing the eighth amendment requires this. Yet, as was noted in the discussion of Duncan, there are other reasons for giving constitutional protection to the jury's power to nullify. The ability of nullification to protect minority interests is directly applicable here. A good case can be made for the proposition that a white jury is more likely to sentence a Negro defendant to death than a white defendant. This is because the white jury may feel no kinship with the Negro defendant. There are undoubtedly people who believe that executing a Negro is an act which falls somewhere between shooting a mad dog and putting a lame horse out of his misery. Indeed, it can not even be assumed that such a person will be able to find the facts accurately.160In parts of the country it is likely that the majority of the jury will have less extreme but equally prejudicial views when the issue is punishing a Negro. Other distinct minorities are subject to the same bias. The jury can only protect members of these groups from the lessened respect which the majority has for their life if it includes at least one minority group member who will empathize with the defendant's situation enough to block the death penalty. This can happen only if a unanimous verdict of death is required. Our legal history has moments of triumph and moments of disgrace. It is in a way strange that we should be able to forget the Dred Scott'61 decision more easily than we can forget the execution of Sacco and Vanzetti. Perhaps this is because the former wrong has been corrected by the fourteenth amendment. But it is still possible for an Italian or a Jew or a Negro to be sentenced to death rather than some other punishment because of prejudice. The fault lies not with judges. The judges who reviewed the Sacco and Vanzetti case would undoubtedly have reversed if the influence of prejudice could have been proved. Such things, however, are rarely capable of proof. The unanimous sentencing verdict is the only feasible protection. If the Court makes the representative jury and the unanimous verdict of death a requirement applicable to the states, it will not only have tied the penal system to the conscience of the community but will have helped to purge that conscience of a haunting bad dream. 5. Nullification on the Issue of Guilt. This note has already discussed nullification on the guilt issue insofar as it relates to the mandatory death
probably jurors, however, it probably will not be able to strike all scrupled jurors, so unanimous verdicts on the death penalty will still be rare.
THE CASE OF SACCO AND VANZETTI (1927).

be as heavy as it was in Swain. Even if the state persists in striking scrupled

The trial has been the subject of numerous books in the last decade. See, e.g., H. EHRMANN, THE CASE THAT WOULD NOT DIE

161. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856). See F. FRANKFURTER,

A 160. See, e.g., D. CARTER, SCOTTSBORO: TRAGEDY OF THE AMERICAN SOUTH (1968).

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penalty. It remains to be asked whether the Constitution requires protection for the power of the jury to override the decision of the state to make certain conduct illegal. This question takes on particular importance today because of the apparent increase in the number of those willing to approve civil disobedience.162There are those who have doubts about whether the use of marijuana should be illegal, whether those who refuse induction because they oppose the Vietnam war should be punished, whether rioters should be convicted, and whether abortions should be criminal. Some Negroes may believe that they should never apply "the white man's law" against another Negro. May these people be excluded from the jury? The answer is certainly yes. There is no historical basis for the inclusion of jurors who hold such beliefs,l63 and the majority gives no indication that it intends to change the practice in this area. Moreover, it is unthinkable that one man should be able to nullify the legislature's general commands concerning illegal conduct. It is quite likely that the Court's fear that a direct discussion of the nullification problem would be misconstrued to approve a "right" of nullification on questions of substantive law is the cause for the indirect approach taken in Witherspoon. This is not to say that the exclusion of jurors who have doubts about various criminal laws eliminates any possibility of nullification. A juror who believes that the law should be applied may also believe that it should not be applied abusively. He is free to refuse to convict on a technical offense. He may prevent the state from using the criminal law to harass the citizen. He may nullify when faced with arbitrary or discriminatory enforcement. Finally, he may nullify harsh penalties. In all of these situations the jury represents the conscience of the community from which it is drawn. Nonetheless, the willingness of the community to nullify certain laws may have some legal significance. A few times in recent years the Court has struck down the sort of laws to which a significant segment of the community objects on essentially moral grounds. Griswold v. Connecticut,l64invalidating a statute prohibiting the use of contraceptives by married couples, is such a decision. It is easy to fault the strange talk of "penumbras" which the Court used to reach its result. But if the case had been decided differently, would it be easy either to preach the obligation to obey this law or to deny to the jury the power to nullify it? Obscenity cases present a similar situation. A good argument can be made that the first amendment was intended to protect political expression. But if United States v. One Book Entitled Ulysses165 had been decided differently, many in what might be called the intellectual community
163. See, e.g., Miles v. United States, 103 U.S. 304 (1880); Reynolds v. United States, 98 U.S. 145 (1879), excluding those who believe in bigamy from trials of bigamists. 164. 381 U.S. 479 (1965). 165. 72 F.2d 705 (2d Cir. 1934).
162. See Farer, Book Review, 69 COLUM.L. REV. 320 (1969).

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would still think it no crime to smuggle the book past customs officials. This group's respect for law is obviously of some importance. It may be that in some circumstances the existence of scrupled jurors on a particular rule of law influences the Court's decision to invalidate it. In Witherspoon the Court effectively enlarged the jury's role in blocking the death penalty. Any further extension of the jury's role in nullifying harsh penalties will, like the Witherspoon decision, be to the advantage of the defendant. There is, however, a danger that the jury will nullify rules of law meant to protect the defendant. Bruton v. United States"66indicates that the Court will circumscribe the jury's ability to nullify the criminal defendant's constitutional rights.
III. BRUTON V. UNITED STATES: THE JURY AND NULLIFICATION OF A CONSTITUTIONAL PROTECTION

The practice of admitting a defendant's confession at a joint trial and instructing the jury to ignore the implications of the confession for the guilt In of his co-defendants has drawn wide criticism.167 Bruton v. United States,l68 the qualified approval given to the practice a the Supreme Court withdrew decade ago in Delli Paoli v. United States.'69 George Bruton was tried with one Evans on a federal charge of armed postal robbery. Evans had made two confessions, one implicating Bruton and the other mentioning an accomplice. These confessions were recounted at trial by the postal inspector who heard them, including Evans' statements inculpating Bruton. Evans never took the stand, so Bruton could not challenge him on the accuracy of his account to the inspector. The judge twice clearly and carefully instructed the jury that Evans' confession should not be considered against Bruton because Evans' statements were hearsay on the issue of Bruton's guilt.l70
166. 391 U.S. 123 (1968), see text accompanyingnotes 167 to 226, supra. 167. See, e.g., Delli Paoli v. United States, 352 U.S. 232, 248 (1957) (Frankfurter, J., dissenting); United States v. Bozza, 365 F.2d 206, 215 (2d Cir. 1966) (Friendly, J.); Nash v. United States, 54 F.2d 1006 (2d Cir.), cert. denied, 285 U.S. 556 (1932) (Hand, J.); People v. Aranda, 63 Cal. 2d 518, 407 P.2d 265, 47 Cal. Rptr. 353 (1965) (Traynor, J.); People v. Fisher, 249 N.Y. 419, 431-32, 164 N.E 336, 340-41 (1928) (Lehman, J.). 168. 391 U.S. 123 (1968). 169. 352 U.S. 232 (1957). Delli Paoli was a joint trial of five defendantson a federal charge of conspiring to deal unlawfully in alcohol. The trial court did not delete references to Delli Paoli from the confession of a codefendantbut stated clearly that the confession was to be used only in determiningthe guilt of that one defendant.The Supreme Court found the instructions sufficientlyclear and decided that the jury was capable of following them because of five factors: the conspiracy was simple; the separate interests of each defendantwere emphasizedthroughout trial; the confession was held back until the rest of the government'scase was in and so could be considered separately; the confession merely corroboratedwhat the governmenthad already established with respect to Delli Paoli; the jury did not seem confused. Delli Paoli implied that in other situations where prejudice would be more likely, instructions would not be sufficient. 170. The out-of-court statements of Evans were admissible against him under the

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Evans appealed his conviction and it was set aside on the ground that his confession to the inspector was tainted by an earlier confession obtained in violation of Miranda standards.171 However, Bruton's conviction was affirmed by the Court of Appeals,172which relied on Delli Paoli and refused to speculate that the jurors had not followed the instructions to use Evans' confession only against Evans. The Supreme Court decided that Delli Paoli's basic assumption-that the jury could obey limiting instructions and would ignore anything that Evans' confession said or implied about Bruton-was erroneous. It felt that even the clearest and most emphatic instructions could not adequately protect a defendant from the improper use of his co-defendant's confession. The Court simply did not think a jury capable of performing the mental gymnastics required in following such instructions. Instead, the Court felt, the jury would use Evans' confession against Bruton. Since Evans did not take the stand, Bruton's conviction was based, at least in part, on the statement of a person whom he could not cross-examine. The use of that hearsay evidence denied Bruton his sixth amendment right to confront the witnesses against him.173 The conclusion reached in Bruton is the logical outgrowth of the Court's decisions in Pointer v. Texas,174 Douglas v. Alabama,175 and Jackson v. Denno.176 Pointer reaffirmed that the sixth amendment confrontation right includes the right to cross-examine, and applied this confrontation right to the states. Douglas held that the right of cross-examination is denied although the maker of the statement is present for questioning when he invokes his fifth amendment privilege and refuses to discuss the statement.177The Court argued that in Bruton the declarant was not available for cross-examination though present and that this defect was even more serious than in Douglas because the confession was in evidence, whereas in Douglas the confession was never put into evidence but merely used in an unsuccessful attempt to refresh the witness' recollection.l78 Jackson v. Denno supports the notion that there is constitutional significance to the limits on a jury's ability or willingadmissionsexception to the hearsay rule. However as to Bruton, they did not come within 460 (1954). EVIDENCE any hearsay exception. See C. MCCORMICK, 171. 391 U.S. at 124. v. Texas, 380 U.S. 400, 404 (1965). 174. 380 U.S. 400 (1965). 175. 380 U.S. 415 (1965).
176. 378 U.S. 368 (1964). 172. Evans v. United States, 375 F.2d 355, 361-63 (8th Cir. 1967). 173. It is clear that the gist of the confrontation right is cross-examination. Pointer

177. Douglas and Loyd were tried separately for assault with intent to murder. Loyd was tried first and convicted; he was called as a witness at Douglas' trial but refused to answer questions on the ground that he was appealing his conviction. The prosecution then got permission to treat him as a hostile witness and read his confession to him. Loyd refused to say if the confession was his, but the confession seriously implicated Douglas. The Court found the reading of the confession to be the equivalent of testimony in the jury's mind. 380 U.S. at 419. 178. 380 U.S. at 416-17.

Instruction-Its Effectiveness and Effect, 51 MINN. L. REV.264 (1966).

See the prediction of Bruton in Note,

The Limiting

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ness to follow instructions. In Jackson, the Court decided that a jury could not be relied on to examine a confession in detail to decide whether it was voluntary and then, if it were involuntary, to ignore it when reaching a decision on guilt.179The Bruton court relied on Judge Traynor's argument that the task of using a defendant's confession against only him at a joint trial may be even more difficult than ignoring an involuntary confession because the information must both be used and ignored. The jury must use A's admission to decide if A committed a criminal act with B and ignore the conclusion that B committed the same act with A.180 A. Immediate Consequences of Bruton In Roberts v. Russell,181 the Supreme Court gave Bruton retroactive application on the ground that Bruton concerns the accuracy with which guilt is determined.182The same case confirmed the applicability of Bruton to the states. Thus Bruton is to receive broad and instant application, and confronts the courts with serious immediate problems. 1. Procedures for Handling Co-defendants' Confessions. While forbidding the procedure followed in Bruton, the Supreme Court did not provide any positive rules for dealing with incriminating statements in joint trials. The Court does mention Judge Frank's suggested solution, however, and courts attempting to deal with the problem should give attention to that formula: When several defendants are on trial for criminal conspiracy, if the government seeks to put in evidence an out-of-court statement made by one defendant which is hearsay as to the others . . . then (a) unless all references to the other defendants can be effectively deleted (so that the statement will contain no hint of the others' guilt) and unless those references are deleted, (b) the trial judge must (1) refuse to admit the statement or (2) sever the trial of these other defendants.183 The courts are not likely, however, to adopt this formula in its entirety. The Supreme Court seems to view deletion with suspicion since the jury can often figure out to whom the confession refers from other evidence at trial or from an inadvertent slip by a witness.184 Such slips are likely when a
179. 378 U.S. 368 (1964). 180. People v. Aranda, 63 Cal. 2d 518, 529, 407 P. 2d. 265, 271-72, 47 Cal. Rptr. 353, 359-60 (1965). The Court quoted Traynor with approval, 391 U.S. at 130-31. 181. 392 U.S. 293 (1968). Petitioner was convicted of armed robbery at a joint trial where a policeman testified as to codefendant Rappe's oral confession. (The jury was instructed to use her statement only against her.) 182. The Court in deciding whether a decision should be retroactive weighs the administrativeinconvenienceinvolved against the extent to which the constitutionaldefect affected the accuracy of the guilt determination.Linkletter v. Walker, 381 U.S. 618, 629 183. Delli Paoli v. United States, 229 F.2d 319, 324 (2d Cir. 1956) (Frank, J., dissenting), aff'd, 352 U.S. 232 (1957). 184. 391 U.S. at 134 n.10.

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witness is giving an oral statement.185 Moreover, the declarant has a right to have his statement fairly represented. This is particularly true if the statement is primarily exculpatory,186 as such statements frequently are. On the other hand, a ruling of inadmissibility would unduly restrict the prosecution's case against the defendant who made the statement. For these reasons severance seems to be the favored solution. It is provided for in Rule 14 of the Federal Rules of Criminal Procedure, the comments to which specifically suggest severance in the Bruton situation.187 (These are cited with approval by the Supreme Court in Bruton.)l88 It must be noted, however, that not all extra-judicial statements mentioning a co-defendant require reversal when admitted into evidence. Some statements may be admissible against the non-declaring defendant under recognized hearsay exceptions.189 Even the admission into evidence of statements which do not technically fall within a hearsay exception as to the nondeclaring defendant will not require reversal unless those statements are "incriminating."190 If the statement, for example, mentions the co-defendant but mentions no fact connected with a criminal act,191 there is no reversible error. Even if the statement is incriminating, if the damage is slight and would not have much effect on the jury with a proper instruction, reversal is probably not necessary.192 For example, if two defendants confessed along very 185. Id. 186. See People v. LaBelle, 18 N.Y.2d 405, 225 N.E. 2d 727, 276 N.Y.S.2d 105 (1966). 187. FED.R. CRIM.P. 14 discussed in 1964 Proposed Amendments,34 F.R.D. 411, 419 (1964). 188. 391 U.S. at 131-32. 189. Where, for example, the statement is made in the course of a conspiracy to which the defendant and co-defendant were both parties, the declaring defendant A is consideredan agent of co-defendantB and A's statements are admissible against B under 521-23 (1954). EVIDENCE the admissions exception. C. MCCORMICK, 190. 391 U.S. at 126. The Court reversed in Bruton "becauseof the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extra(Emphasis added.) The Court judicial statements in determiningpetitioner's guilt...." called the statements in Bruton "powerfullyincriminatory." 191. Cortez v. United States, 405 F.2d 875 (9th Cir. 1968) held that Bruton did not require reversal where co-defendant Young told customs agents after she was apprehended that she had a feeling something was going to go wrong and that she had told "them" that something would go wrong. This statement was introduced against the defendants but was not reversible error because it set forth no fact incriminating to anyone and mentioned "no fact connected with a criminal act." 192. The Court quotes Lutwak v. United States, 344 U.S. 604, 618-20 (1953) for were admittedagainst all by mistake. The Court said reversal was not necessary because it is inconceivable that this one minor admission could possibly influence the jury to
the proposition that instructions can often cure the erroneous admission of evidence. Lutwak was a Bruton-type case where declarations admissible only against one defendant

reach an improper verdict: the "record fairly shrieks the guilt of the parties." Query whether the proper test is to weigh the force of the evidence in question against the rest of the evidence in the case, or to consider the influence of the error standing by itself. In Fiswick v. United States, 329 U.S. 211, 218 (1946), quoting Kotteakos v. United States, 328 U.S. 750, 764-65 (1946), the Court applied the latter standard in deciding whether the erroneous admission of a co-conspirator's confession was reversible error. It said that the standard was not whether there was enough other evidence to support the result, but whether the error itself had substantial influence. This standard has been followed in a number of cases, e.g., Greenwell v. United States, 336 F.2d 962, 969 n.8 (D.C. Cir. 1964), cert. denied, 380 U.S. 923 (1965).

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similar lines and each inculpated the other, there would probably be no reversible error because the co-defendants' statements added little in the jury's mind to the force of each defendant's own confession, which, of course, is admissible against him. 2. The Significance of the Declarant Taking the Stand. It is clear from Bruton that if defendant A's admission implicates co-defendant B and is hearsay as to B, there has been a denial of due process if A did not take the stand. But what if A does take the stand? The Court is then confronted with a number of problems. First, it must insure that A does, in fact, take the stand. If the statement is admitted on the assumption that A will later testify, but in fact he does not, then a mistrial as to B must be ordered. To avoid this, the trial judge might first ascertain from A's attorney, outside the jury's presence, whether A will take the stand. But of course A might still change his mind and refuse to testify. Another approach would be to admit the statement only after A has actually taken the stand. The difficulty here is that often A takes the stand only because his statement has been put into evidence. The best solution would be to deny a joint trial unless A has waived his fifth amendment privilegel93 with respect to the subject matter of the admission. The Court must still decide, however, whether simply because A has taken the stand A's out-of-court statement can be used against B.194 The question may arise in various distinct factual situations. If A readily admits to and confirms the truth of the statement, the case for admissibility is strongest.195On the other hand, if A has no memory of making the statement and no memory of the underlying facts which the statement purports to relate-or at least denies making the statement or knowing anything about the event-B should be found to have been denied his right of confrontation. B has no opportunity to expose either the accuracy of the statement or A's motivation in giving it.196It seems clear that the mere fact that A takes the stand should not render admissible against B what essentially remains hearsay as to him.
193. If defendant took the stand, but did not discuss his admission, the implicated co-defendant might still not be able to cross-examine him on the admission because it would be beyond the proper scope of cross-examination.See discussion in United States 401 F.2d 35, 38 n.5 (7th Cir. 1968). Therefore a specific waiver v. Guajardo-Melendez, as to the subject matter of the admission appears to be necessary. 194. Wigmore and McCormicksuggest that prior inconsistentstatements of witnesses should be used substantively,rather than just for impeachment,because the declarant is
EVIDENCE 1018 (1940) available for cross-examination. 3 J. WIGMORE,

EVIDENCE 74-82 (1954). This principlecan be extended to the use of co-defendant'sstatements where the co-defendant is available for cross-examination. However, as will be argued below, this extension should not be made unless certain protections are provided.

C. MCCORMICK,

196. The reason for disqualifying A's statements about B as hearsay when they are recountedby witness W is that there is no way to check on (1) the truthfulness of A in his statement to W, (2) A's memory of the event, (3) his accuracy of observation or (4) the effectiveness with which he communicatedhis story to W. Generally, the courts will not treat the statement as hearsay where risks two and three (memory and observation) are not present-e.g., where A's statement is about his mental state. In this case, all four risks are present.

notes203 to 209, infra. 195.But see text accompanying

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Another situation arises when A has no memory of ever having made the statement-or at least denies making it-but is prepared to testify about the underlying facts which the statement purports to relate. Here B is denied cross-examination on the important issues of motivation for giving the statement and belief in the truth of the statement at the time it was given. In view of the importance which the jury is likely to place in the statement despite A's contradictory testimony on the underlying facts, B should be found to have been denied his right of confrontation. confirms this reasoning. There a witness who had Douglas v. Alabama197 allegedly made an out-of-court statement inculpating the defendant was called to testify against him. The witness' statement was read to him, but he refused to confirm or deny it. The Supreme Court held that his refusal to discuss the statement effectively denied the defendant his confrontation right, noting that declarant "could not be cross-examined on a statement imputed to but not admitted by him."198 An attempt could be made to distinguish Douglas. In Douglas the declarant was not a co-defendant and, therefore, his statement was not admissible as evidence under the admissions exception to the hearsay rule. It would be perverse, however, to adopt a higher standard for the control of extrajudicial statements by witnesses than for such statements by co-defendants. A's testimony incriminating B is notoriously unreliable because of A's interest in shifting at least a part of the blame.199 And yet, because the statement will be read by the prosecutor, the jury is not likely to believe A's claim that he does not remember making such a statement. As to B, A is just another witness and B should be able to rely on the reasoning of Douglas. Douglas might also be distinguished in that the witness relied on his fifth amendment privilege rather than testifying that he had no memory of having made the statement. Presumably B could still cross-examine A as to whether the statement was true even though A denies having made the statement. The difficulty is that A will not be able to explain the existence of or circumstances surrounding a statement in conflict with his present testimony. Still another situation is the case where A admits making the statement, but denies any present recollection or admits only a partial recollection of the events on which the statement is based. In this case, A's statements are arguably admissible against B under the past recollection recorded exception 197.380 U.S. 415 (1965). 198.380U.S. at 419 (emphasis added). in 199.See cases quoted Brutonv. UnitedStates,391 U.S. 123, 136n.ll (1968). A of number states requirecorroboration testimony of See given by an accomplice. comEVIDENCE2056 n.10 (1940 & 1964 Supp.); and it is often pilation in 7 J. WIGMORE, to with suspicion. PittsSee possibleto have the jury instructed regardsuch testimony burghPlate Glass Co. v. United States, 260 F.2d 397, 402 (4th Cir. 1958), aff'd, 360 and complicated indeedif all of A's U.S. 395 (1959). It could becomevery awkward if inadmissible hearsaystatements againstB wouldhave to be corroborated the informaA admissible tion became againstB the moment took the stand.

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to the hearsay rule.200This exception is justified on the theory that a statement made shortly after an event, by a declarant who can testify that he believed the statement to be true at the time he made it, is generally reliable.201Nonetheless, because the witness has no present memory of the underlying events, it is not possible to test his observation and memory by cross-examination.202 Applying the Bruton rule to the co-defendant's past recollection recorded would entail constitutionally invalidating an established exception to the hearsay rule. It is arguable that in the co-defendant situation, cross-examination on matters of veracity and communication is more important than on matters of observation and memory. The danger, after all, is that the codefendant is lying to get himself off the hook. On the other hand, the confrontation clause clearly indicates the need to take a more restrictive view of hearsay exceptions in a criminal case. Further, there is a great danger that A will feign the required lack of present memory in order to avoid thorough testing of his statement incriminating B. The prosecutor is not likely to discourage him in this. The question is close, but on balance a criminal defendant should be held to have been denied the right to confront his co-defendant when the co-defendant is available for cross-examination but has no present recollection of the facts underlying an incriminating extra-judicial statement. In a criminal case, the past recollection recorded exception to the hearsay rule should be held unconstitutional when applied to the statements of a codefendant. The final situation occurs when A is available for cross-examination and both admits making the statement and claims to remember the occurrences on which that statement is based.203 Strangely, under traditional hearsay rules A's statement will not be admissible against B even though it would be if A had no memory of the underlying events.204 There is said to be no necessity for the hearsay statement. It may be used against B only for
200. Under this exception, a written memorandumis admitted into evidence where it was written by a witness who does not have any present memory of the content of the writing but who recognizes that it was correct at the time of making and can testify that the events were still fresh in his mind when the writing was made. C. MCCORMICK,
590-95 (1954). EVIDENCE 592-93 (1954). EVIDENCE 201. C. MCCORMICK, 202. See supra note 196. In this situation, contrary to the usual rule, veracity and

accuracy of communication seem to be the major hearsay risks. Therefore, even if memory and observation risks are low, due to the immediacy of recordation, the other risks suggest that the material should be treated as hearsay. 203. The Ninth Circuit in Santoro v. United States, 402 F.2d 920 (9th Cir. 1968) recently held that where co-defendant's statements incriminated defendant but all took the stand and testified about the out-of-court statements, which therefore could have been cross-examined,there was no error even in light of Bruton. The facts in Santoro seem to square with this fifth category. But see United States v. Guajardo-Melendez, 401 F.2d 35 (7th Cir. 1968), where co-defendant Hernandez, whose out-of-court statement incriminatedthe defendant, took the stand. The court said that the Bruton confrontation rationale did not apply directly, but then went on to say that the confrontation opportunity was not sufficient to overcome the prejudice of the statement. In short, the court did not think confrontationwas a sufficientcure. 204. Under the orthodox rule, a previous statement of a witness may not be used 74 EVIDENCE (1954). substantivelybecause it is an out-of-courtstatement. C. MCCORMICK,

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non-hearsay purposes such as impeachment and refreshing recollection. B is therefore entitled to a limiting instruction. Assuming that the jury will be unwilling or unable to follow such an instruction, it must be asked whether this defect is cured by the ability to cross-examine the declarant. Put another way, it must be asked whether Wigmore's205 and McCormick's206rule perrmittingthe substantive use of prior inconsistent statements and the even broader liberalization of the Uniform Rules of Evidence207 are unconstitutional when applied in the co-defendant situation. Neither Bruton nor Douglas are authority for finding a denial of due process in this situation. There is ample opportunity to cross-examine the co-defendant as to the underlying facts and the circumstances surrounding the making of the statement. None of the hearsay risks are present and the jury has ample opportunity to observe the demeanor of the co-defendant as he testifies. The real danger is not that there is an inadequate opportunity for confrontation, but that cross-examination will do an inculpated codefendant almost no good; that the jury will believe the statement no matter how successfully it is attacked through cross-examination of the declarant. Current trial practice may, in fact, encourage the jury to give the codefendant's statement a significance independent of the co-defendant's testimony. The statement is generally recounted by a police officer. Moreover, the recounting of the statement and the cross-examination of the declarant may be separated by days or weeks.208 There is a rather straightforward way of mitigating these difficulties. In a joint trial the extra-judicial statements of a co-defendant should be admissible only in connection with the declarant's testimony. Such a procedure would be possible if, as suggested above, a joint trial were conditioned on the co-defendant's waiver of his fifth amendment privileges with respect to the subject matter of the admission. The prosecutor would call the declarant, show him the statement, ask him if he recognizes it to be his statement, ask him to recount the facts described in the statement and use the statement for such contradiction as is necessary. The statement would, of course, be substantive evidence as to the declarant and might, with the safeguard of this approach, be constitutionally acceptable substantive evidence with respect to the co-defendant as well, pursuant to Uniform Rule 63(1). Where this Rule
205. See supra note 194.

206. Id.

to the statement and its subject matter, provided the statement would be admissible if made by declarant while testifying as a witness," is admissible. 208. 5 J. WIGMORE, EVIDENCE 1368 (1940); State v. Saporen, 205 Minn. 358, 34
361-63, 285 N.W. 898, 901 (1939); MITTEE ON EVIDENCE, 131 (1963). OF REPORT THE NEW JERSEYSUPREME COURTCOM-

"A statement previously made by a person who is present at the hearing and available for cross-examination with respect

207. UNIFORMRULES OF EVIDENCE, Rule 63(1).

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is not followed,209 a limiting instruction should be constitutionally adequate if the above procedure were followed. B. Further Development of the Bruton Rationale Bruton and Jackson v. Denno apply a two-step logical process. First, it must be found that the instruction under consideration is constitutionally required. Second, it must be determined that the jury will not follow the instruction. This section will consider the second branch of the Bruton reasoning, then identify constitutionally required instructions and finally consider whether the jury's inability to follow instructions, standing alone, has constitutional significance. 1. The Jury's Ability to Follow Instructions. In determining the effects of Bruton and Jackson v. Denno, the courts must first develop some standards for deciding whether a jury can be trusted to follow instructions. In Bruton, it was fairly easy for the Court to arrive at the psychological judgment that jurors would apply Evans' confession to Bruton. Although Justice White dissented vehemently and argued that jurors can be told why the testimony is unreliable and then trusted not to follow it, many of the best legal minds have argued that the instruction to disregard a co-defendant's testimony is a farce.210In other cases it will not be as easy to determine the limits of the jury's capabilities. It is clear that not only must the danger of the jury's failure be great, but the consequences of this failure must be vital to the defendant.211Beyond that, the key seems to be whether ignoring the inadmissible evidence goes against ordinary deductive processes (e.g., ignoring relevant evidence) or intuitive processes (e.g., concluding that if the defendant will not speak up to defend himself he must be guilty).212 Certainly, if a judge knows from experience that he himself has trouble keeping evidence sorted "into separate intellectual boxes,"213 this is good evidence that the jury will have trouble. It is also significant whether the reasoning behind the exclusionary rule is sufficiently compelling to the layman so that he will make an effort to follow the rule.214
2. The Exclusion of Evidence Which the Jury Will Use Improperly.

The Bruton rationale may be applied in any case where the jury is unlikely to follow a constitutionally required instruction. If, for example, prior recorded
209. This Uniform Rule has been adoptedalmost nowhere, but courts may of course adopt its approachpiecemeal. 210. See supra note 167. 211. 391 U.S. at 135. 212. See, e.g., Nash v. United States, 54 F.2d 1006, 1007 (2d Cir. 1932), cert. denied, 285 U.S. 556 (1932), condemning"mental gymnastics." 213. People v. Aranda, 63 Cal. 2d 518, 529, 407 P.2d 265, 271-72, 47 Cal. Rptr. 353, 359-60 (1965). 214. See White's dissent distinguishingJackson v. Denno from Bruton in this ground, 391 U.S. at 142.

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testimony is admissible against one defendant because he had an opportunity to cross-examine at the prior hearing, its use against a co-defendant who had no such opportunity is a denial of the right of confrontation. A limiting instruction should not be constitutionally adequate. In Bruton the constitutional defect in the jury's failure to follow instructions could be cured by a severed trial. Similarly, in Jackson v. Denno the cure required only that the question of a confession's admissibility be withdrawn from the jury. The only real state interest was the desire to avoid these procedures. There will, however, be cases where the cure requires that evidence not be used at all. If, for example, the state attempts to use a witness's prior statement for impeachment or refreshing recollection in a situation where the substantive use of the statement would deny the defenthe dant's right to confrontation,215 jury's failure to follow the constitutionally required limiting instruction can be cured only by denying the state the use of such statements for any purpose.216Although the state interest in impeachment seems greater than its interest in joint trials, it is relatively unlikely that the Court will treat Bruton as a balancing case.217 It should instead require exclusion of statements used for impeachment or refreshing wherever their use deprives defendant of his ability to cross-examine. Douglas may well be direct authority on this point as there the state claimed that the statement might properly be used to refresh the declarant's memory-and lost. To a great extent, the impact of Bruton will depend on the Court's willingness to posit constitutionally necessary instructions for the purpose of determining whether the jury will follow them. There is some indication, for example, that if the prosecution impeaches the defendant by introducing evidence of a prior refusal to testify, the fifth amendment requires that the jury be instructed to use this evidence only for impeachment and not for the inference of guilt.218This rule seems right, and because the jury is not likely to follow such an instruction, the evidence should be excluded. More difficult is the question whether the evidentiary use of a prior conviction entails a constitutionally required jury instruction. Most states in215. See text accompanyingnotes 193 to 209 supra. 216. This was the situation in Douglas v. Alabama, 380 U.S. 415 (1965), where the witness's confession was read to him to refresh his memory. The confession could not be used substantively against the defendant,yet it contained statements incriminatingto the defendantthat the jury was likely to use against him anyway. 217. But see Spencer v. Texas, 385 U.S. 554 (1967), when the Court used the balancing approach in a criminal case. Spencer was criticized in Note, The Supreme L. Court, 1966 Term, 81 HARV. REV.69, 209-13 (1967). 218. In United States v. Grunewald, 233 F.2d 556 (2d Cir. 1956), rev'd on other grounds, 353 U.S. 391 (1957), the prosecution was allowed to introduce evidence of defendant'sfailure to testify before a grand jury for the limited purpose of impeaching credibility. Although Griffin v. California, 380 U.S. 609 (1965) forbids commenting on defendant'sfailure to testify in order to imply that defendantis guilty, its rationale would have to be extended somewhat to forbid the Grunewald use of defendant's failure to testify in order to impeachhis testimony. See generally United States v. Grunewald,233 F.2d 556, 578-82 (2d Cir. 1956) (Frank, J., dissenting).

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struct the jury that a prior conviction must be used for a limited purpose such as impeachment or sentencing and may not be used for the inference that those who have committed crimes in the past are more likely to do so in the future. It is not clear, however, that the drawing of such an inference (often called the bad man inference) deprives the defendant of a constitutional right. This is not to say that a prior conviction may not be used unconstitutionally. Undoubtedly if the jury inferred guilt from the prior conviction, without more, the defendant's right to due process or basic fairness would have been infringed.29 However, jurors will not generally infer guilt from prior convictions, without other evidence, and what danger there is can be controlled by granting a directed verdict or the equivalent of a judgment n.o.v. The constitutionality of the use of prior convictions is supported by Spencer v. Texas,220 where the Court held that the jury could be informed of a prior conviction for sentencing purposes before it had reached a verdict on guilt or innocence.221Dicta uphold the use of prior convictions for impeachment and proof of motive, intent or freedom from mistake. Interestingly, the opinion employs a balancing test which seems to indicate that the drawing of the bad man inference does have constitutional significance. The Court is clearly aware that a prior conviction is likely to be misused. Burgett v. Texas222 held that a prior conviction obtained against a defendant unrepresented by counsel could not be used to enhance a sentence under a Texas recidivist statute. This case is distinguishable from the situation under discussion because the prior conviction could not constitutionally be used for any purpose. Nonetheless it does indicate that if the Court were to hold the bad man inference unconstitutional it would find the limiting instruction inadequate as well. The argument for the constitutionality or basic fairness of the bad man inference seems weakest when the prior conviction is ostensibly used for purposes of impeachment. The impeachment instruction is itself likely to encourage this inference. The jury is likely to think that if they can use the prior conviction to discredit the defendant's protestations of innocence, they may use it to believe that the truth is the opposite of what he says. At this point, a slip from the negative inference to the bad man inference is an easy one. Moreover, the risk that the jury will draw the bad man influence effectively chills the due process right of the defendant to testify in his own behalf. Spencer was a 5-4 decision and one of the concurring opinions was rather
219. As the Court said in Powell v. Alabama, 287 U.S. 45, 69 (1932), a defendant cannot be convicted on the basis of "incompetentevidence, or evidence irrelevant to the issue." Similarly, the improper use of prior convictions by a jury may violate basic standardsof fairness and reasonableness. 220. 385 U.S. 554 (1967). 221. Texas now does not, except in capital cases, give the jury the recidivist issue until it has first found the defendantguilty under the principalcharge. Spencer v. Texas,
385 U.S. 554, 556-57 n.2 (1967), citing TEX. CODECRIM. PROC.art. 36.01 (1966).

222. 389 U.S. 109 (1967).

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reluctantly given. A full scale assault on the use of prior convictions for impeachment may still prove successful. 3. Jury Confusion. Even though no one instruction is constitutionally required, a complex conspiracy trial may involve so many different defendants and charges that the jury is unable to sort out the instructions and apply to each defendant "only relevant and competent evidence bearing on the issue of [his] guilt or innocence."223In extreme cases, the courts have held mass trials unconstitutional.224Bruton and Jackson, by giving explicit recognition to the jury's inability to follow instructions, will undoubtedly lower the level of judicial tolerance for joinder of defendants and charges.225 Nevertheless, there is a qualitative difference between admitting that a jury cannot forget highly probative evidence-as in Bruton-and admitting that it can get hopelessly confused. The latter proposition strikes at the heart of the jury system, because the system depends on the jury's being able to keep the evidence straight, once the judge has excluded all unreliable evidence and given clear instructions on what to do with the remainder. There is, moreover, respectable support for the propriety of large trials.226Therefore, any sweeping change of judicial attitude is unlikely. The preceding cases show the Supreme Court's conception of the jury's purpose. The following case indicates the strength of the Court's commitment to trial by jury.
IV. UNITED STATES V. JACKSON: THE RIGIIT TO TRIAL BY JURY

United States v. Jackson227focuses on the fifth amendment right not to plead guilty as well as on the sixth amendment right of trial by jury.228 It
after this statement did not deal broadly with inadmissible statements, but involved the jury's use of confessions of co-conspirators against defendants who did not make the confessions. 224. United States v. Gaston, 37 F.R.D. 476 (D.D.C. 1965). See cases collected in Note, Riot Control: The Constitutional Limits of Search, Arrest and Fair Trial Procedure, 68 COLUM.L. REV. 85, 108 n.132 (1968). 225. See criticism in Krulewitch v. United States, 336 U.S. 440 (1949). In Bruton, the prosecution had a weak case which was based on a questionable identification by a store clerk. The prosecution took every opportunity to stress the references to Bruton in Evans' confession in an attempt to build up a case against Bruton. Brief for Petitioner at 5-7, 11. This type of abuse is compounded in mass trials. Bruton provides the basis for a direct attack on the use of extra-judicial statements of co-conspirators. The prosecution may introduce such statements to prove the existence of a conspiracy at the same time that it is introducing evidence of the guilt of individual defendants. The jury is supposed to use the evidence on the existence of the conspiracy only for that purpose. If the state fails to show a conspiracy, the jury is supposed to ignore this evidence altogether. Yet if the jury convicts defendants on the basis of the extra-judicial statements of their co-defendants-despite the fact that no conspiracy has been established-the confrontation rights of these defendants have been infringed. The Supreme Court gave recognition to the dilemma by quoting in the text of Bruton from a Jackson concurrence that dealt with just this problem. PENAL CODE 5.03(4) (Tent. Draft No. 10, 1960). 226. MODEL 227. 390 U.S. 570 (1968). 228. Id. at 581.

223. Brutonv UnitedStates,391 U.S. 123,131 n.6 (1968). However,the case cited

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holds unconstitutional229 penalty provision of the Federal Kidnapping Act the which provided for a maximum sentence of life imprisonment if the defendant pleaded guilty or waived a jury trial but allowed the imposition of the death penalty if the defendant insisted on a jury trial and the jury recommended death.230The Court based its decision on the danger that a defendant would forego his right to a plea of not guilty and his right to a jury trial in order to avoid the risk of capital punishment. It held that this "chilling effect" on the exercise of these constitutionally protected rights is itself unconstitutional. Jackson represents a major advance from the Court's prior posture of prohibiting the infringement of a criminal defendant's rights to one of preventing reliance on procedures which discourage the exercise of those rights. The Court's reliance on a "chilling" doctrine similar to that used in the free speech and self-incrimination cases appears to place the right to a trial jury on a par with these so-called preferred freedoms. A. The Opinion The Federal Kidnapping Act had the effect of permitting the death penalty to be imposed only by a jury. The government argued that because the purpose of the statute was ameliorative-to prevent a mandatory sentence of death to follow every conviction-it should not be declared invalid simply because it might induce a defendant to forego a procedural right.231 The Court, however, looked only at the effect of the legislation. The good intentions behind the statute could not prevent its chilling effect on the exercise of the rights to plead not guilty and have a jury trial and so could not rescue it from its constitutional defects.232 The Supreme Court also dismissed the argument that a trial judge has the opportunity to thaw the chilling effect by rejecting a guilty plea233 or refusing to accept a jury waiver234either as the circumstances warrant235or in all cases.236Equally unsatisfactory was the government's proposal that the Court direct the lower courts to refuse to accept guilty pleas or jury waivers in all instances. It found this contrary to the very language of the statute and likely to impose unnecessary inflexibility on the judicial system. In addition, Justice Stewart noted that defendants who acknowledge their guilt have traditionally been allowed to plead guilty. The Court was not inclined to eliminate that privilege.237
229. Id. at 572. 230. 18 U.S.C. 1201(a) (1964), popularly known as the Lindbergh Act. 231. Brief for Appellant at 5, United States v. Jackson, 390 U.S. 570 (1968). 232. 390 U.S. at 582. 233. Lynch v. Overholser, 369 U.S. 705 (1962). 234. There is no constitutional right to a judge trial. Singer v. United States, 380 U.S. 24 (1965). 236. Id. at 584. 237. Still another argument by the Government was that the statutory scheme as

235. 390 U.S. at 583.

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The Court's conclusion on these points seems correct. It would seem obvious that it is the ameliorative nature of the procedure which gives it its chilling effect. A defendant is presented with an attractive option, but he can only exercise it if he foregoes a constitutional right. This the Court should not countenance. The trial judge would probably refuse a guilty plea or jury waiver when he felt the guilty plea or waiver was a result of the coercive effect of the procedure. Yet, no defendant would be likely to admit that he was motivated by this kind of pressure since to do so would be to risk the rejection of his plea or waiver and be faced with the very situation he sought to avoid-a jury trial with the concomitant possibility of a death sentence. The fact that in some cases the courts might refuse the defendant his option (thus assuring that he receives a jury trial) cannot save the statute from its basic infirmity. In no case should the defendant be subjected to unnecessary pressure to forego the exercise of his rights. Those rights are so important that any procedural scheme which discourages defendants from exercising them is itself constitutionally suspect. In transferring the doctrine of chilling from the speech and self-incrimination cases to situations involving the right to a jury or to plead not guilty, the Court has undoubtedly eased the standard. In the past, the Court was concerned with the chilling effect when the defendant was coerced into choosing between asserting his constitutional right and something of great value to him (usually his job) or when the efficacy of his right was directly diminished by state action (comment on a defendant's refusal to testify).238 The Court no longer requires a Hobson's choice or direct deleterious state action. It is enough that the defendant may be deterred, even slightly, from exercising a constitutional right to its full measure.239
written permitted a judge to hold a jury trial on the issue of punishment even if there had not been a jury trial on the issue of guilt. Thus the death penalty would be possible despite the lack of a jury trial. The Supreme Court held that this was not the proper construction of the statute as written and intimated that even if this had been the intent of the legislature, it might still have been unconstitutional because the judge's discretion to decide whether the defendant would be subjected to the risk of capital punishment would be attractive to some defendants. 390 U.S. at 572. 238. The Court has dealt with the unconstitutional chilling of the first amendment right of association: Shelton v. Tucker, 364 U.S. 479 (1960) (failure by teachers to reveal all organizations to which they belonged or contributed within the previous five years meant loss of employment) ; United States v. Robel, 389 U.S. 258 (1967) (membership alone in a Communist-action organization no matter how active the membership was or the specific intent of the defendant made it unlawful to be employed in a defense facility); and with the fifth amendment right against self-incrimination: Gardner v. Broderick, 392 U.S. 273 (1968) (policeman fired because of failure to waive privilege against self-incrimination) ; Uniformed Sanitation Men Ass'n v. Comm'r, 392 U.S. 280 (1968) (garbagemen fired for refusal to testify); Garrity v. New Jersey, 385 U.S. 493 (1967) (policemen threatened with loss of jobs if they failed to answer questions); Spevack v. Klein, 385 U.S. 511 (1967) (threat of disbarment of attorney for asserting privilege). In Jackson the lower court, 262 F. Supp. 716 (D. Conn. 1967), relied primarily on Griffin v. California, 380 U.S. 609 (1965), which held it a violation of the fifth amendment privileges against self-incrimination for the judge to comment on the defendant's failure to testify. The Supreme Court cites this case and Herman v. Claudy, 350 U.S. 116 (1956), which held that there is a right not to be coerced into pleading guilty. 239. The Supreme Court has not decided whether Jackson is to be applied retro-

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On the state interest side of the balance, the Court uses a much stricter test. The opinion emphasizes that it is "unnecessary chilling" which is objectionable. The rule seems to be that the state interest in procedures which unnecessarily chill the right to trial by jury cannot justify the most minimal deterrence. The Court does not indicate what might be necessary chilling or where the line of demarcation might lie.240Of course, the Court may never draw that line precisely, but it does seem that it has in mind certain situations where procedures which discourage the exercise of a defendant's rights will be necessary to attain some higher value. In those cases, the Court seems to be intimating, the chilling effect will have to be tolerated.241 Finally, although Jackson does grant the criminal defendant a fair number of advantages, it should not be viewed as simply an anti-capital punishment case. This is so despite its immediate effect of reducing the number of people under sentence of death. Congress is entirely free to reimpose the death penalty as long as those who plead guilty and those who are tried by either judge or jury are all equally susceptible to its imposition.242 B. The Consequences of Jackson Jackson is likely to have both a direct and indirect impact on criminal procedure. The most direct consequence will be on the federal and state statutes243which suffer from the same infirmity as the Federal Kidnapping
actively. Because of the life and death choice involved and because of the few persons affected by the decision (those who pleaded guilty, those who waived a jury trial and those who demanded a jury trial and are now under a sentence of death, Robinson v. United States, 394 F.2d 823, 824 (6th Cir. 1968)), their decision will probably be in favor of retroactivity. 240. In discussing a similar problem under a New Jersey statute, see notes infra 246 to 253 and accompanyingtext, the court in Laboy v. New Jersey, 266 F. Supp. 581 (D.N.J. 1967), enunciateda balancing test: It does not necessarily follow that this "obstacle"to a jury trial is tantamount to a denial of the right to a jury trial. To determine when such an "obstacle" becomes so great as to be considered a denial of the right to a jury trial, it is necessary to compare the degree of the "obstacle"against the value of the policy which it implements. Id. at 585. 241. See text accompanyingnotes 259 to 277 infra. Another interesting aspect of the Court's decisions in Jackson is its refusal to declare the entire Federal KidnappingAct unconstitutional.The Court noted that the death penalty provision could be severed without seriously affecting the statute's main purpose-the prohibition of kidnapping. 242. Considering community sentiment, Congress is unlikely to reinstate the death penalty. See Hearings on S. 1760 Before the Subcomm. on Criminal Laws and Procedures of the Senate Comm. on the Judiciary, 91st Cong., 2nd Sess. (1968) (statement by Attn'y-Gen. Clark, seeking its abolition). 243. Federal Bank Robbery Act, 18 U.S.C. 2113(e) (1964) whose death penalty provision was struck down on the authority of Jackson in Pope v. United States, 392 U.S. 651 (1968) (per curiam); Atomic Energy Act, 42 U.S.C. 2274-76 (1964); 21 U.S.C. 176(b) (1964) (sale of narcotics to minors) ; N.H. REV.STAT. 585.4 (1955) (homicide) ; WYO.STAT. 6-59 (1957) (a little LindberghAct.) The District of Columbia's rape statute, D.C. CODE 22-2801 (1967), was declared unconstitutionalin response to Jackson in Bailey v. United States, 405 F.2d 1352 (D.C. Cir. 1968). Prior to Jackson the Nevada Supreme Court held unconstitutionala rape statute (NEV. REV. STAT. 200. 360 (1963)) similar to that of the District of Columbiain Spillars v. State, 436 P.2d 18 (Nev. 1968). They gave an interesting additional ground for their decision: differing maximum penalties for the same offense was a violation of the equal protection clause of the Fourteenth Amendment.Id. at 23. N.Y. PEN. LAWof 1909 1045 and 1045a (now

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Act. It can be assumed both that these provisions are unconstitutional244and that the remainder of these statutes will be allowed to stand without the provision for the death penalty. In view of the application of the right to trial by jury to the states in Duncan v. Louisiana, the applicability of the Jackson reasoning to the states seems clear. Both the states and the federal government should, however, be able to devise a constitutionally acceptable procedure under which the death penalty could be imposed only by a jury. This goal is an important one; in fact, the notion that the death penalty must be imposed by the community in the specific case appears to underlie Witherspoon. Three procedures are possible: to make the death penalty mandatory in all cases; to convene penalty juries in all cases; or to refuse all guilty pleas or jury waivers in all cases.245The first approach is unduly harsh and likely to lead to nullification. The third would place an intolerable burden on the courts. Therefore, despite its novel features, a penalty jury in all cases seems to be the best choice. Jackson should also have a direct effect on criminal procedures which are similar, though not identical, to the Federal Kidnapping Act practice. New Jersey, for example, has a procedure which presents an analogous problem.246If the defendant pleads non vult247to a charge of murder, he is subject to a maximum sentence of life imprisonment. If, however, he pleads not guilty, he must have a jury trial and if convicted will be sentenced to death unless the jury recommends life.248A federal district court attempted to deal
with this statute after the lower court decision in Jackson1249 by establishing

a balancing test.250The Supreme Court noted this decision251in rejecting the Government's mitigation argument.252 Since Jackson, the New Jersey Supreme Court has attempted to show that Jackson is inapplicable to the New Jersey situation.253It is argued that the Supreme Court based its decision on the sixth amendment right of jury trial rather than the fifth amendment right not to plead guilty. The statute was said not to contravene the sixth amendment jury trial right because the defendant risks the death penalty whether he is tried by a judge or by a jury and is convicted.
N.Y. REV.PEN. LAW 500.05 (1967)) provided for a life sentence on a guilty plea of homicidebut the possibility of a death sentence if the plea were not guilty. Cf. Bullock v. Harpole, 233 Miss. 486, 102 So. 2d 687 (1958). 244. The states, under the mandate of Duncan v. Louisiana, 391 U.S. 145 (1968), must provide the right to a jury trial. Undoubtedly, they, like the federal government, cannot chill the exercise of this right. Court, 1967 Term,supranote 9. 245. See Note, The Supreme 246. See Laboy v. New Jersey, 266 F. Supp. 581, 585 (D.N.J. 1967). 247. Defendant is prohibited from pleading guilty to murder. N.J. STAT.ANN. 2A:113-3 (1939). 248. Id. 2A:113-4. 249. 262 F. Supp. 716 (D. Conn. 1967). 250. See supra note 238. 251. 390 U.S. at 582. 252. See supra note 231 and accompanyingtext. 253. State v. Forcella, 35 N.J. 168, 171 A.2d 649 (1961), cert. denied, 369 U.S. 866 (1962).

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This reasoning is defective on two counts. The Supreme Court rested its Jackson decision on both provisions of the Bill of Rights.254Secondly, even if it were assumed that Jackson concerns only the sixth amendment guarantee of a jury trial, the New Jersey provision clearly chills the assertion of that right. That it might also chill the assertion of the right to any type of trial does not cure its constitutional infirmity. The statute, therefore, is likely to be declared unconstitutional. More interesting are the possible indirect ramifications of the Jackson holding. The chilling effect of various practices in the field of criminal procedure is likely to come under judicial scrutiny. For example, the Clayton Act provides that consent decrees in criminal prosecutions instituted by the United States will not have a collateral estoppel effect in future civil suits.255If the defendant pleads not guilty, however, and is subsequently convicted, he may be liable for damages as a result of the use of collateral estoppel in a later civil action. Given the possibility of overwhelming liability through the application of treble damages, the incentive to negotiate a consent decree is obvious. Such a lure clearly discourages a defendant from demanding a jury trial. Whether the procedure is unconstitutional under Jackson probably depends on whether the consent decree is found to resemble a guilty or nolo contendere plea in a criminal case or an out-of-court settlement in a civil case. Jackson also has a bearing on the widespread practice of plea bargaining in which a defendant pleads guilty in exchange for a promise of conviction on a lesser offense, the dropping of a particular charge against him, or the recommendation of a light sentence. Lower courts have uniformly upheld this procedure where the plea has been voluntary. The courts have considered this inducement one of the many factors which the defendant should take into consideration in making his plea. Only where this inducement overpowers the defendant's ability to make a voluntary decision has the guilty plea been
rejected.256

The Supreme Court has never squarely considered the constitutionality of plea bargaining. In extreme cases, the choice offered the defendant may be so irresistible as to violate the due process requirement that a guilty plea not be coerced.257But under the more lenient standard applied in Jackson, the
254. 390 U.S. at 581. 255. 15 U.S.C. 16(a) (1964). 256. E.g., Cooper v. Holman, 356 F.2d 82 (5th Cir.), cert. denied, 385 U.S. 855 (1966); Busby v. Holman, 356 F.2d 75 (5th Cir 1966); Martin v. United States, 256 F.2d 345 (5th Cir.), cert. denied, 358 U.S. 921 (1958); Cortez v. United States, 337 F.2d 699 (9th Cir. 1964), cert. denied, 381 U.S. 953 (1965); Godlock v Ross, 259 F. 257. Machibroda v. United States, 368 U.S. 487 (1962); Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116 (1956). For an excellent discussion of the subject, see United States ex rel. Thurmondv. Mancusi, 275 F. Supp. 508 (E.D.N.Y. 1967).

Supp.659 (E.D.N.C. 1966).

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practice is constitutionally suspect258simply because it encourages defendants to plead guilty and forego their right to a jury trial. It is at this point that the question of what is unnecessary chilling259 arises with great force. The process of plea bargaining plays a major role in the administration of justice. In the federal courts, upwards of 75 percent of persons accused of crimes plead guilty.260Of these guilty pleas, a great number are bargained.261The practice is equally prevalent in the state courts.262 A prohibition of plea bargaining would pleace an immense burden on both the federal and state judiciary-a burden which neither is prepared to handle. There are a number of ways in which the Court might distinguish its Jackson decision when faced with a challenge to the constitutionality of plea bargaining. It might be argued that the threat of capital punishment has a special constitutional significance, that its chilling effect is so great as to be qualitatively different from the threat of a longer sentence. The Jackson decision, however, does not turn on the degree of chilling but the fact of chilling.263Moreover, it is questionable whether the degree of chilling in the choice between life imprisonment and death is significantly greater than that in the choice for a younger person between ten years and life. A second approach would be to distinguish the fifth and sixth amendments for purposes of the chilling doctrine. When faced with the incentive of a lower sentence, the defendant is far more likely to waive trial by jury than he is to plead guilty to an offense he did not commit. The chilling doctrine is thus necessary to protect the right to trial by jury; the defendant's selfinterest is arguably adequate to protect his right to plead not guilty. One difficulty with this approach is that, as noted above,264 Jackson appears to draw no distinction between the application of the chilling doctrine in a fifth and sixth amendment context. Moreover, the classic use of chilling to prohibit comment on the defendant's failure to take the stand may indicate the importance the Court places on facilitating the exercise of fifth amendment rights.265Finally, a strong argument can be made that the right to trial by jury serves to protect the guilty as well as the innocent. Nullification-the jury's refusal to convict although the state has satisfied its burden of persuasion-is a restraint on the ability of the legislature to make conduct criminal and to fix unduly harsh sentences and on the discretion of the prosecutor in
258. See Brief for Appellant at 6, United States v. Jackson, 390 U.S. 570 (1968). 259. See text accompanying notes 240 to 241, supra. 260. Note, Guilty Plea Bargaining: Compromises by Prosecutors to Secure Guilty Pleas, 112 U. PA. L. REV. 865 (1964); Note, Official Inducements to Plead Guilty: Suggested Morals for a Market Place, 32 U. CHI. L. REV. 167 (1964). 261. Note, Guilty Plea Bargaining, supra note 260, at 899 (Appendix, question 4). 1967) and articles cited therein. 263. 390 U.S. at 583. 264. See text accompanying notes 253 to 254 supra.

262. United States ex rel. Thurmondv. Mancusi, 275 F. Supp. 508, 514 (E.D.N.Y. 265. Griffinv. California,380 U.S. 609 (1965).

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bringing charges.26 Criminal procedure knows no directed verdict of guilty, no summary judgment against the defendant267 and no appeal by the prosecutor after a verdict of acquittal.268Thus the right of the guilty to plead not guilty is inseparable from the right to trial by jury. The third approach would be to focus on the way in which Jackson phrases the issue. "The question is not whether the chilling effect is 'incidental' rather than intentional; the question is whether it is unnecessary and therefore excessive."269Unfortunately the Court has given no guide for the resolution of this question although a balancing test was probably intended.270 It is unusually difficult to apply an explicit balancing test to questions of criminal procedure and the Court has generally avoided this approach.27 Instead, it generally appears that criminal procedural rights are absolute and to be preserved no matter what the cost. If the Court were to admit, for example, that the indigent accused's right to state-supplied counsel depended on the finding that the costs of a public defender program were not unreasonable, the force of the opinion would undoubtedly be weaker.272 An unstated balancing test, however, probably underlies most, if not all, constitutional decisions on criminal procedure. It would be impossible to reconcile the framers' purpose to create a government which might "assure with a construction of the Bill of Rights which seridomestic tranquility"273 threatened the administration of criminal justice. It is submitted that the ously Court will never consciously advance such a construction. Despite the extensive public debate on the point, it cannot be seriously doubted that the majority in recent decisions liberalizing criminal procedure believe that the new constitutional requirements do not and will not threaten the effective administration of criminal justice in any way that cannot be cured by an entirely reasonable public expenditure. The Court has been forced to act because the accused is enough of a public outcast to make it unlikely that a legislature will put a fair price on his protection.274
266. See supra note 33 and accompanyingtext. 267. United Bd. of Carpentersv. United States, 330 U.S. 395, 408 (1947); United States v. Gollin, 166 F.2d 123, 127 (3d Cir. 1947), cert. denied, 333 U.S. 875 (1948). 268. Two states do allow the prosecutor to appeal from procedural errors but not from the acquittal itself. Connecticut: CONN.GEN. STAT.ANN. 54-96 (1958), upheld in Palko v. Connecticut,302 U.S. 319 (1937); Wisconsin: Wis. STAT.ANN. 958.12 (1958), discussedin State v. Evjue, 254 Wis. 581, 37 N.W.2d 50 (1949). 269. 390 U.S. at 582. 270. In a number of cases the Court has describedthe kind of governmentalinterest which justifies an incidental limitation on the exercise of an individual's constitutional rights. While not entirely analogous to the chilling problem in the criminal procedure
area, these cases may not cast some light on the proper balancing techniques to be followed in this context. See, e.g., United States v. O'Brien, 391 U.S. 367 (1968). 271. But see Spencer v. Texas, 385 U.S. 554 (1967), criticised in Note, The Supreme

Court, 1966 Term, supra note 217, at 209-13 (1967).

272. explicitly 273. 274.

The Court's options would be open to even greater public attack if they were based on consistency with effective law enforcement. U.S. CONST.Preamble. Cf. United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938).

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Would the cost of adjusting the judicial system to the prohibition of plea bargaining be a fair price to pay for facilitating the exercise of fifth and sixth amendment rights? This question cannot be avoided by requiring the states to tolerate sporadic enforcement of the criminal law, although in the first amendment area it is possible to tell them to tolerate the use of their libraries as a place for public protest.275Judges and other court officers, district attorneys, policemen, and public defenders would have to be provided in sufficient number to give the state an opportunity to prove guilty beyond a reasonable doubt roughly triple the present number of trial defendants.276 To date, the Court's decisions have not substantially increased the cost of administering criminal justice as a percentage of gross national product.277 The elimination of plea bargaining would probably have that result. Even if the Court should conclude that plea bargaining is not constitutionally impermissible per se, an exception for plea bargaining involving the choice between life imprisonment and death, between a terminate and indeterminate sentence, or between sentences with and without the hope of parole seems justifiable. These are the cases where the chilling effect is greatest. It is also unlikely that these cases arise in sufficient numbers to threaten law enforcement; and in any event the prosecutor would still be able to bargain over the length of the sentence. The Court might also be alert to the danger that an unnecessarily broad range of punishment for a given offense will give the prosecutor excessive leverage. Establishing a permissible range of punishment entails no more of a legislative judgment than does the chilling doctrine generally. Several other state practices of less significance may have a chilling effect on the exercise of the right to trial by jury. One involves the practice of jury sentencing in noncapital cases.278 Virginia, for example, allows the use of the probation officer's presentence report only in judge-tried cases or when the defendant pleads guilty. To have the use of this potentially mitigating
275. Brown v. Louisiana, 383 U.S. 131 (1966). 276. See supra notes 260 and 262. 277. It is interesting to note that only recently has the United States Government collected the statistics of the cost of the administrationof justice. Traditionally, figures were recordedfor total governmentexpenditurefor police protectionand correction. This has hovered around0.55% of the Gross National Product. CompareTable No. 214, p. 152 Whereas the cost for police and correction was $3,825,000 in 1965, the total cost for the administrationof justice (adding the cost of courts, prosecution and defense)
STATISTICAL ABSTRACT OF THE UNITED STATES (89th ed. 1968).

with Table No. 451, p. 320, in U.S. BUREAUOF THE CENSUS, STATISTICAL ABSTRACT OF THE UNITED STATES (87th ed. 1966). was $4,212,000, 0.61% of the G.N.P. Table No. 212, p. 145, U.S. BUREAUOFTHE CENSUS,

278. ALA. CODEtit. 14, 318, 322, 336, 395, 415, 424 (1959); ARK. STAT. ANN. ANN. 27-2502 (1953); IND. ANN. STAT. 9-1819 (1956) ; 43-2306 (1963); GA. CODE KY. R. CRIM. P. 9.84 (1966); MIss. CODE ANN. 2359, 2361 (Supp. 1966); Mo. ANN. STAT. 546.410 (1953); N.D. CENT. CODE 12-06-05 (1960); OKLA. STAT. ANN. tit. 22, 926 (1958); TENN. CODEANN. 40-2707 (1955); TEX. CODECRIM. P. art. 37.07

ANN. 18.1-9, 19.1-291,19.1-292 (1960). (1966); VA. CODE

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material, defendant must waive his right to a jury trial279and, thus, that right is effectively chilled. This practice probably violates the standard set forth above since there seems to be no governmental interest which could not be attained equally as well by allowing the jury access to such a report when passing on the question of sentence. Another kind of chilling in this area is economic in nature. Texas, for example, requires the defendant to pay a jury fee.280 Although the actual amounts involved may be small, these provisions are incentives to avoid a jury trial.281They seem totally unnecessary and, in view of the Court's concern for indigent defendants,282 may be destined to fall. A more difficult question concerns the right to trial by jury in juvenile cases. There are indications that In re Gault283and Duncan v. Louisiana284 will be extended to require a trial by jury in state and federal proceedings.285 If this happens, Jackson will be authority for arguing the unconstitutionality of the Federal Juvenile Delinquency Act286and similar state statutes287which provide for light punishment, allegedly without stigma, if the juvenile waives a trial by jury. The Court's refusal in Jackson to consider the ameliorative purpose of sentencing provisions is buttressed by its refusal in Gault to treat the ameliorative purpose of the juvenile courts as justification for the denial of certain constitutional rights.288It seems unlikely that the Court would establish the juvenile's right to trial by jury only to permit the vitiation of its exercise. There is no necessity for or even significant state interest in refusing to apply sentencing concepts tailored to the juvenile in a jury trial. Special rules of waiver may well, however, be in order to account for the juvenile's special situation.289
V. CONCLUSION

Bruton v. United States is convincing proof that the Court does not view the jury primarily as a guarantor of accuracy. Bruton stands for the proposition that the jury's role must be limited in the interest of accuracy; it simply does not follow from this assertion that the jury's role is required to insure 53 in 279. Note, Jury Sentencing Virginia, VA. L. REV. 975-76(1967). 968,
CRIM.P. art. 53.01 (1966); Kruegel v. Murphy and Bolanz, 59 280. TEX. CODE

Tex. Civ. App. 482, 126 S.W. 680 (C.A. 1910). the involved. has 281. The Court heldpoll taxesunconstitutional despite smallamount 383 Harperv.. VirginiaBd. of Education, U.S. 663 (1966). 372 v. 380 v. 282. Griffin California, U.S. 609 (1965); Gideon Wainwright, U.S. 335 (1963). 283. 387 U.S. 1 (1967). 284. 391 U.S. 145 (1968). text. 285. See supranotes57 to 62 and accompanying 286. 18 U.S.C. 5031-7(1965). 287. See supranote61. 288. In re Gault,387 U.S. 1, 14-31 (1967). L. 68 289. Note, Waiverin the JuvenileCourt, COLUM. REV.1149 (1968).

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accuracy. Similarly the reasoning of Duncan v. Louisiana and Witherspoon v. Illinois is either unconvincing or illogical as long as the Court casts its opinion in terms of preserving the jury as a fundamental guarantor of accuracy. The logical difficulties are so extreme that it must be assumed that the Court does not in fact subscribe to the accuracy or procedural due process model of the jury's constitutional purpose. This Note has speculated about the Court's true view of that purpose. Its conclusions may be summarized by suggesting how the Court's decisions are likely to affect the perception of the jury by the accused, the prosecution, and the general public. The accused will be better able to look on the jury as a protective and, to some extent, humanitarian institution. The defendant in a capital case will feel that he has a responsive forum on the question of respect for life generally and for his life, in particular. On the other hand, there is no longer cause for the accused to be cynical about the law because it allows the jury to deprive him of the benefit of constitutional protections. If convicted, his respect for law will be more easily rehabilitated because he knows that the courts make an effort to prevent the law from becoming a sham. Moreover, if a degree of jury nullification in the defendant's favor is permitted, those convicted will feel that they have been judged individually on the spirit rather than the letter of the law. The particularized expression of community disapproval which the jury verdict represents may aid the rehabilitative goal. This is particularly true where the minority group defendant knows that the vote of another member of his group was necessary to convict. The prosecution will be more justified in viewing the jury as an obstacle to convicting guilty men. The prosecutor will undoubtedly chafe at the Court's use of the chilling effect rationale to prevent the states from decreasing the height of this obstacle. Unfortunately, resentment is likely to be increased by the Court's reliance on the accuracy model. If the Court believes, as it appears to, that in part the jury is for the protection of the guilty,290 a clearer expression of this belief seems desirable. The general public will undoubtedly continue to view the criminal jury trial as sensational drama. The Court, by permitting plea bargaining while increasing the trial rights of the accused, appears to have accepted the notion that the trial is the showcase for the administration of criminal justice. The Court's elaboration of the right to trial by jury is another step in this direction. Indeed, it seems reasonable that the substitution of expedition for procedural protection which to some extent characterizes recent developments in
290. Clearly, the eighth amendmentprohibitionagainst cruel and unusual punishment is for the protectionof the guilty.

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civil practice291should not be transplanted to the criminal process. Criminal law, after all, is in large part premised on achieving voluntary compliance in the community at large. It is to be hoped that respect for law is increased when law operates with scrupulous fairness, but with the leaven of charity that is added when the jury acts as the conscience of the community. This Note has suggested that justice is served if in limited respects the jury is allowed to speak with a different voice from the legislature and, most particularly, to speak its own mind concerning unduly harsh penalties. Little can be lost by holding that the sixth amendment has institutionalized the hope of charity.
291. Examples of the developing flexibility in civil cases are FED. R. Civ. P. 19 (pragmatic considerationsdetermine if party is indispensableor if litigation can proceed without him); FED.R. CIV.P. 23 (class actions require only "best notice practicable" to membersof class and result is binding on all members of class who do not specifically request exclusion).