435 U.S. 223 (1978)
In November 1973 Claude Davis Ballew served as manager of the Paris Adult Theatre at 320 Peachtree Street in Atlanta, Georgia.1 On November 9 two investigators from the Fulton County Solicitor General’s office viewed the motion picture film entitled “Behind the Green Door” at the theater.2 After they had seen the film, the investigators obtained a warrant for its seizure, returned to the theater, viewed the film once again, and seized it.3 Petitioner and a cashier were arrested.4
Investigators returned to the theater on November 26, viewed the film in its entirety, secured still another warrant, and on November 27 once again viewed the motion picture and seized a second copy of the film.5 Petitioner was charged in a two-count misdemeanor accusation with distributing obscene materials in violation of Georgia Code Section 26-2101 in that the accused did, knowing the obscene nature thereof, exhibit a motion picture film entitled “Behind the Green Door” that contained obscene and indecent scenes.6
Petitioner was brought to trial in the Criminal Court of Fulton County.7 After a jury of five persons had been selected and sworn, petitioner moved that the court impanel a jury of twelve persons.8 Petitioner contended that for an obscenity trial a jury of only five was constitutionally inadequate to assess the contemporary standards of the community.9 The motion for a twelve-person jury was overruled, and the trial went on to its conclusion before the five-person jury that had been impaneled.10 At the conclusion of the trial the jury deliberated for thirty-eight minutes and returned a verdict of guilty on both counts of the accusation.11 The court imposed a sentence of one year and a one-thousand-dollar fine on each count, the periods of incarceration to run concurrently and to be suspended upon payment of the fines.12 After a subsequent hearing the court denied an amended motion for a new trial.13
The Court of Appeals rejected petitioner’s contentions.14 The court independently reviewed the film in its entirety and held it to be hard core pornography and obscene as a matter of constitutional law and fact.15 In its consideration of the five-person-jury issue the court noted that Williams v. Florida had not established a constitutional minimum number of jurors.16 Absent a holding by this Court that a five-person jury was constitutionally inadequate, the Court of Appeals considered itself bound by Sanders v. State where the constitutionality of the five-person jury had been upheld.17 The Supreme Court of Georgia denied certiorari.18 In his petition for certiorari petitioner raised three issues including the unconstitutionality of the five-person jury.19 The Supreme Court granted certiorari.20
Whether a state criminal trial to a jury of only five persons deprives the accused of the right to trial by jury guaranteed to him by the Sixth and Fourteenth Amendments?21
The Sixth Amendment right to a jury trial, made applicable to the states by the Fourteenth Amendment in all nonpetty criminal cases, requires a jury of sufficient size to promote effective group deliberation, protect against outside intimidation, and ensure a representative cross-section of the community; empirical evidence establishes that juries of fewer than six members seriously impair these functions and therefore violate the constitutional guarantee.22
Yes. The rule requires that any jury in a nonpetty criminal case maintain at least six members to fulfill the core purposes of preventing governmental oppression through community participation and common-sense fact-finding.23 Ballew faced misdemeanor charges carrying a possible one-year sentence and therefore was entitled to a jury trial under Duncan v. Louisiana.24 His case was tried before a five-person jury selected under Georgia law, and that jury convicted after only thirty-eight minutes of deliberation.25
Post-Williams studies demonstrate that panels of five produce less effective deliberation, higher risk of convicting the innocent, greater verdict inconsistency, fewer hung juries, and reduced likelihood of including minority viewpoints necessary for true community representation.26 Because the five-member jury in Ballew’s trial fell below the constitutional minimum, it deprived him of the jury trial right guaranteed by the Sixth and Fourteenth Amendments.27
The five-person jury used to convict Ballew violated the Sixth and Fourteenth Amendments; the judgment of the Court of Appeals is therefore reversed.28
Related opinions on this issue
Justice Stevens joined Mr. Justice Blackmun's opinion in full while expressly reserving his prior positions.29 He stated that he had not altered the views he expressed in Marks v. United States, 430 U. S.
188.30 This reservation signals his continued adherence to earlier constitutional views on obscenity and related questions even as he concurs in the jury-size holding reached by the majority.
Justice White concurred in the judgment of reversal on a distinct and narrow ground.31 He agreed that a jury of fewer than six persons would fail to represent the sense of the community and hence not satisfy the fair cross-section requirement of the Sixth and Fourteenth Amendments.32 His concurrence therefore rests specifically on the fair cross-section principle as the constitutional basis for invalidating the five-person jury.
Justice Powell concurred only in the judgment because the opinion assumes full incorporation of the Sixth Amendment against the states.33 This assumption runs contrary to his position in Apodaca v. Oregon.34 Justice Powell also expressed reservations about heavy reliance on statistical studies whose methodology had not been tested through the adversary process.35
He noted that the studies represent unexamined findings of persons interested in the jury system and declined to join the full opinion for these reasons.36
Justice Brennan joined the majority opinion to the extent it concluded that the Sixth and Fourteenth Amendments mandate juries of more than five persons in criminal trials.37 Nevertheless he declined to authorize a retrial of the petitioner.38 Justice Brennan maintained his longstanding view that Georgia Code Annotated section 26-2101 is unconstitutionally overbroad on its face under the First Amendment.39
This independent constitutional objection to the underlying statute led him to oppose any further proceedings against Ballew.40 His position therefore combines agreement on the jury-size issue with a broader substantive challenge to the obscenity law itself.41