Ballew v. Georgia, 435 U.S. 223 (1978)

The manager of an adult theater was charged in a state court with distributing obscene materials, a misdemeanor. Pursuant to state law, and over his claim that the Sixth Amendment right to a jury trial required a jury of at least six members, he was tried and convicted by a jury of five people.

The purpose of a jury trial is to provide protect against government oppression by having members of the community participate in the determination of guilt, Duncan v. Louisiana. Although a jury traditionally comprised twelve members, the U.S. Supreme Court held in Williams v. Florida that the Sixth Amendment does not require a jury of that number; rather, it merely mandates a jury of sufficient size to encourage group deliberation, to shield members from outside deliberation, and to supply a representative cross-section of the community. In Williams, the Court concluded that a jury of six members can fulfill the functions of a jury trial, and therefore is not unconstitutional. In Ballew v. Georgia, however, the Supreme Court unanimously held that a five-person jury does not comport with the requirements of the Sixth Amendment. The Court relied heavily on empirical studies raising doubts about the reliability of decisions by juries of fewer than six members, and indicating that such juries are less likely to contain members of minority groups and thus not truly represent their communities. In addition, the Court concluded that no significant state interest justified a reduction from six members to five.

DAVID S. RUDSTEIN

References and Further Reading

• LaFave, Wayne R., Jerold H. Israel, and Nancy J. King. Criminal Procedure. 4th ed. St. Paul, Minn.: Thompson- West, 2004
• Rudstein, David S., C. Peter Erlinder, and David C. Thomas. Criminal Constitutional Law. Newark, N.J. and San Francisco: LexisNexis-Matthew Bender, 1990, 2004
• Singley, Carl E., Ballew v. Georgia: Five Is Not Enough, Temple Law Quarterly 52 (1979): 2:217–58

Cases and Statutes Cited

• Duncan v. Louisiana, 391 U.S. 145 (1968) 
• Williams v. Florida, 399 U.S. 78 (1970) 

See also Duncan v. Louisiana, 391 U.S. 145 (1968); Incorporation Doctrine; Jury Trial; Jury Trial Right