The opinion of the court was delivered by: DUMBAULD
Plaintiff in this case did not stipulate to accept, but made timely objection against, trial of the case by a jury of six, as provided for in a local rule of this Court.
The writer of this opinion voted against adoption of said local rule, upon the ground that prudence dictated awaiting a square holding by the Supreme Court of the United States sustaining the validity of such an innovation in the trial of civil and criminal cases
in federal courts, rather than rushing in, for reasons of convenience and expediency, to adopt such a rule on the strength of bar association speeches by the Chief Justice or resolutions of the Judicial Conference. However, this Court adopted said rule, and it was applied in this case, over plaintiff's timely objection.
The existing law regarding juries in federal courts is quite clear in requiring (1) that there must be twelve jurors and (2) that the verdict must be unanimous.
It has long been equally clear that the due process requirements of the Fourteenth Amendment do not forbid use of a jury of less than twelve in State courts.3
This decision carried forward the recent trend towards making federal standards of constitutionality applicable against the States.
There has never been a majority on the Court in favor of Justice Black's view that the Fourteenth Amendment "incorporated" in toto the federal bill of rights. But more and more specific items have been held binding upon the States. The process has been described as "selective incorporation."
At least two clear thinkers on the Court, Justices Robert H. Jackson and John M. Harlan, have always recognized "the inappropriateness of a single standard for restricting State and Nation" because of the "disparity between their functions and duties."
Because, after all, the only justification for any interference by a federal court with proceedings in a State court must be found in the language of the Fourteenth Amendment, the merits of Justice Harlan's method of analysis is clear. "That is to start with the words 'liberty' and 'due process of law' and attempt to define them in a way that accords with American traditions and our system of government."
In this process the federal "Bill of Rights is evidence, at various points, of the content Americans find in the term 'liberty' and of American standards of fundamental fairness."
By acceptance in Duncan of the federal standards of jury trial as applicable against the States, the Supreme Court sort of painted itself into a corner, which became obvious when the question arose in Williams v. Florida, 399 U.S. 78, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (1970), whether, being now bound by federal standards, the States were no longer free to use juries of less than twelve.
It would have been intolerable to require States to employ juries of twelve in all serious criminal cases, when the law had been clear since the nineteenth century that they were not obliged to do so.
The Court therefore took the other horn of the dilemma and held that "federal standards" (as applicable to the States under the Fourteenth Amendment) did not require a jury of twelve.
Perhaps if the issue were squarely presented in an appropriate adversary proceeding, the Court might find "the monstrous price" paid for the incorporationist doctrine "in which we seem to have imprisoned ourselves" too high. Coolidge v. New Hampshire, 403 ...