Ballew v. Georgia

LOCATION: Criminal Court of Fulton County

DOCKET NO.: 76-761
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: State appellate court

CITATION: 435 US 223 (1978)
ARGUED: Nov 01, 1977
DECIDED: Mar 21, 1978

Leonard W. Rhodes - for respondent
Michael Clutter - for petitioner, pro hac vice by special leave of Court

Facts of the case

Ballew was found in violation of a misdemeanor for exhibiting an obscene motion picture film. In the Criminal Court of Fulton County, a jury of five persons was selected and sworn to hear the case.


Does a state criminal trial by a jury of only five persons deprive the accused of the right to a trial by jury as protected by the Sixth and Fourteenth Amendments?

Media for Ballew v. Georgia

Audio Transcription for Oral Argument - November 01, 1977 in Ballew v. Georgia

Audio Transcription for Opinion Announcement - March 21, 1978 in Ballew v. Georgia

Warren E. Burger:

The judgment of the court in Ballew against Georgia will be announced by Mr. Justice Blackmun.

Harry A. Blackmun:

The Sixth Amendment to the Constitution of the United States reads at its beginning thusly.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.

In 1968 this Court held the Sixth Amendment was applicable to the States.

And they that provision for an impartial jury applied in non- petty state criminal cases.

Eight years ago in a case called In Williams against Florida, this court ruled that the constitutional Sixth Amendment guarantee of trail by Jury in a criminal case, does not require that a state jury's membership be fixed to twelve.

It concluded instead that a defendant Sixth Amendment rights as applied to the states through the Fourteenth Amendment were not violated by a Florida statute providing for a six person jury, rather than a twelve person jury in criminal cases other than Capital cases.

And that defendants forwarded conviction therefore affirmed.

The present case brings the next step.

It comes to us by a writ of certiorari to the Court of Appeals of Georgia.

The petitioner Mr. Ballew was the owner of an Adult Theater in Atlanta.

He was charged under a Georgia Statute with distributing obscene materials and he was brought to trial in the Criminal Court of Fulton County, Atlanta.

The Jury of five was selected and sworn, petitioner moved immediately for a jury of 12 persons.

The Georgia constitution and the statute dating way back to 1891, provided that in that particular court in Fulton County, adjuring a criminal case would consist of five persons.

And parenthetically that number has not been increased to six effective in March of 1976.

The petitioner's motion for a 12 person jury was overruled and he was convicted.

The Court of Appeals affirmed and the Supreme Court of Georgia denied review.

We however granted certiorari to consider among others a five person Jury issue.

So we are presented with the distinction between 6 persons in William against Florida and five persons in the present case.

We adhere to the rule of Williams against Florida.

And one might therefore ask whether and how one could draw a distinction between six persons on the one hand and five person on the other.

Or for that matter four and three and two and one.

By way of flurry of opinions filed with the clerk today, the Court holds that the five member jury does not satisfied the jury trial guarantee of the Sixth and Fourteenth Amendments and we reverse the judgment of Court of Appeals of Georgia.

All members of the Court agree as to, the reversal.

There is however as often seems to be the case, at least where I am writing, there is no opinion subscribed by a majority of the court.

I have filed an opinion joined and I am grateful by Mr. Justice Stevens.

Mr. Justice Stevens however is gone on to file a concurring statement.

Mr. Justice White has filed a statement concurring on the judgments.

He was the author of Williams against Florida the six person jury case.

Mr. Justice Powell has filed an opinion also concurring on the judgment and is joined there by the Chief Justice and Mr. Justice Rehnquist.