435 U.S. 223 (1978), argued 1 Nov. 1977, decided 21 Mar. 1978 by vote of 9 to 0; Blackmun for the Court, Stevens, White, and Powell concurring. Pursuant to state law, Ballew was tried and convicted of a misdemeanor by a jury of five persons. He had filed a pretrial motion to impanel a jury of twelve (or at least six), arguing that a five-person jury would deprive him of his Sixth and Fourteenth Amendment rights to trial by jury. Ballew was sentenced to one year imprisonment and a fine of two thousand dollars. The Georgia courts rejected Ballew's appeal but the Supreme Court ruled in his favor.
Ballew is the Court's most recent ruling on the proper size of state criminal juries. The Anglo-American trial jury for centuries had been a body of twelve, deciding unanimously. However, Williams v. Florida (1970) had caused considerable uncertainty regarding this matter. Williams held that a state criminal jury of six was permissible but did not indicate what the smallest constitutionally adequate jury might be. Colegrove v. Battin (1973) increased the uncertainty by authorizing six-person federal civil juries. And the Court compounded the problem by approving nonunanimous majority verdicts for state criminal juries in Johnson v. Louisiana (1972) and Apodaca v. Oregon (1972). Ballew answered this question by establishing six as the minimum.
Justice Blackmun's opinion reviewed the many empirical studies, inspired by Williams, on the effects of six-person juries and then held that a criminal jury of five was unable to fulfill the constitutional purposes and functions of a jury. While this holding was consistent with the evidence, it did not fairly regard it. Though Justice Blackmun declared that the studies cited had raised “significant questions about the wisdom and constitutionality of a reduction below six” (p. 232), none, in fact, was an investigation of five-person juries. Rather, what these studies had shown was that six- and twelve-person juries were not functionally equivalent. The functional equivalence of six- and twelve-person juries was the foundation and chief claim of Williams. If the Court had truly relied on them, it would have been obligated to overturn Williams instead of reaffirming it.
As a result of Ballew and the other cases herein cited, juries with as few as six members may now be employed in federal civil cases and in both civil and criminal cases in state courts.
Peter W. Sperlich