|Johnson v. Louisiana
[ White ]
[ Blackmun ]
[ Powell ]
[ Douglas ]
[ Brennan ]
[ Stewart ]
[ Marshall ]
Johnson v. Louisiana
APPEAL FROM THE SUPREME COURT OF LOUISIANA
MR. JUSTICE POWELL, concurring in No. 69-5035 and concurring in the judgment in No. 69-5046.
I concur in the judgment of the Court that convictions based on less than unanimous jury verdicts in these cases did not deprive criminal defendants of due process of law under the Fourteenth Amendment. As my reasons for reaching this conclusion in the Oregon case differ from those expressed in the plurality opinion of MR. JUSTICE WHITE, I will state my views separately.
Duncan v. Louisiana, 391 U.S. 145 (1968), stands for the proposition that criminal defendants in state courts are entitled to trial by jury. [n1] The source of that right is the Due Process Clause of the Fourteenth Amendment. Due process, as consistently interpreted by this Court, commands that citizens subjected to criminal [p367] process in state courts be accorded those rights that are fundamental to a fair trial in the context of our "American scheme of justice." Id. at 149. The right of an accused person to trial by a jury of his peers was a cherished element of the English common law long before the American Revolution. In this country, prior to Duncan, every State had adopted a criminal adjudicatory process calling for the extensive use of petit juries. Id. at 150 n. 14; Turner v. Louisiana, 379 U.S. 466, 471 n. 9 (1965). Because it assures the interposition of an impartial assessment of one's peers between the defendant and his accusers, the right to trial by jury deservedly ranks as a fundamental of our system of jurisprudence. With this principle of due process, I am in full accord.
In DeStefano v. Woods, 392 U.S. 631 (1968), an Oregon petitioner sought to raise the question, left open in Duncan, whether the right to jury trial in a State court also contemplates the right to a unanimous verdict. [n2] Because the Court concluded that Duncan was not to have retroactive applicability, it found it unnecessary to decide whether the Fourteenth Amendment requires unanimity. The trial in the case before the Court at that time occurred several years prior to May 20, 1968, the date of decision in Duncan. In the Louisiana case now before us, the petitioner also was convicted by a less than unanimous verdict before Duncan was decided. Accordingly, I read DeStefano as foreclosing consideration in this case of the question whether jury trial as guaranteed by the Due Process Clause contemplates a corollary requirement that its judgment be unanimous.
Indeed, in Johnson v. Louisiana, appellant concedes that the nonretroactivity of Duncan prevents him from raising his due process argument in the classic "fundamental fairness" language adopted there. Instead, he [p368] claims that he is deprived of due process because a conviction in which only nine of 12 jurors joined is not one premised on a finding of guilt beyond a reasonable doubt, held to be a requisite element of due process in In re Winship, 397 U.S. 358, 364 (1970). For the reasons stated in the majority opinion, I do not agree that Louisiana's less than unanimous verdict rule undercuts the applicable standard of proof in criminal prosecutions in that State.
Appellant also asks this Court to find a violation of the Equal Protection Clause in Louisiana's constitutional and statutory provisions establishing the contours of the jury trial right in that State. The challenged provisions divide those accused of crimes into three categories, depending on the severity of the possible punishment: those charged with offenses for which the punishment might be at hard labor are entitled to a five-juror, unanimous verdict; those charged with offenses for which the punishment will necessarily be at hard labor are entitled to a verdict in which nine of 12 jurors must concur; and those charged with capital offenses are entitled to a 12-juror, unanimous verdict. La.Const., Art. VII, § 41; La.Code Crim.Proc., Art. 782. Such distinctions between classes of defendants do not constitute invidious discrimination against any one of the classes unless the State's classification can be said to lack a reasonable or rational basis. We have been shown no reason to question the rationality of Louisiana's tri-level system. I therefore join the Court's opinion in Johnson v. Louisiana affirming the decision below. [n3] [p369]
In the Oregon case decided today, Apodaca v. Oregon, the trials occurred after Duncan was decided. The question left unanswered in Duncan and DeStefano is therefore squarely presented. I concur in the plurality opinion in this case insofar as it concludes that a defendant in a state court may constitutionally be convicted by less than a unanimous verdict, but I am not in accord with a major premise upon which that judgment is based. Its premise is that the concept of jury trial, as applicable to the States under the Fourteenth Amendment, must be identical in every detail to the concept required in federal courts by the Sixth Amendment. [n4] I do not think that all of the elements of jury trial within the meaning of the Sixth Amendment are necessarily embodied in or incorporated into the Due Process Clause of the Fourteenth Amendment. As Mr. Justice Fortas, concurring in Duncan v. Louisiana, 391 U.S. at 213, said:
Neither logic nor history nor the intent of the draftsmen of the Fourteenth Amendment can possibly be said to require that the Sixth Amendment or its jury trial provision be applied to the States together with the total gloss that this Court's decisions have supplied.
In an unbroken line of cases reaching back into the late 1800's, the Justices of this Court have recognized, virtually without dissent, that unanimity is one of the indispensable features of federal jury trial. Andres v. United States, 333 U.S. 740, 748-749 (1948); Patton v. United States, 281 U.S. 276, 288-290 (1930); Hawaii [p370] v. Mankichi, 190 U.S. 197, 211-212 (1903) (see also Mr. Justice Harlan's dissenting opinion); 281 U.S. 276, 288-290 (1930); Hawaii [p370] v. Mankichi, 190 U.S. 197, 211-212 (1903) (see also Mr. Justice Harlan's dissenting opinion); Maxwell v. Dow, 176 U.S. 581, 586 (1900) (see also Mr. Justice Harlan's dissenting opinion); Thompson v. Utah, 170 U.S. 343, 355 (1898). [n5] In these cases, the Court has presumed that unanimous verdicts are essential in federal jury trials not because unanimity is necessarily fundamental to the function performed by the jury, but because that result is mandated by history. [n6] The reasoning that [p371] runs throughout this Court's Sixth Amendment precedents is that, in amending the Constitution to guarantee the right to jury trial, the framers desired to preserve the jury safeguard as it was known to them at common law. [n7] At the time the Bill of Rights was adopted, unanimity had long been established as one of the attributes of a jury conviction at common law. [n8] It therefore seems to me, in accord both with history and precedent, that the Sixth Amendment requires a unanimous jury verdict to convict in a federal criminal trial.
But it is the Fourteenth Amendment, rather than the Sixth, that imposes upon the States the requirement that they provide jury trials to those accused of serious crimes. This Court has said, in cases decided when the intendment of that Amendment was not as clouded by the passage of time, that due process does not require that the States apply the federal jury trial right, with all its gloss. In Maxwell v. Dow, 176 U.S. at 605, Mr. Justice Peckham, speaking for eight of the nine members of the Court, so stated:
[W]hen providing in their constitution and legislation for the manner in which civil or criminal actions [p372] shall be tried, it is in entire conformity with the character of the Federal Government that [the States] should have the right to decide or themselves what shall be the form and character of the procedure in such trials, . . . whether there shall be a jury of twelve or a lesser number, and whether the verdict must be unanimous or not. . . .
Again, in Jordan v. Massachusetts, 225 U.S. 167, 176 (1912), the Court concluded that,
[i]n criminal cases, due process of law is not denied by a state law which dispenses with . . . the necessity of a jury of twelve, or unanimity in the verdict.
It is true, of course, that the Maxwell and Jordan Courts went further, and concluded that the States might dispense with jury trial altogether. That conclusion, grounded on a more limited view of due process than has been accepted by this Court in recent years, [n9] was rejected by the Court in Duncan. But I find nothing in the constitutional principle upon which Duncan is based, or in other precedents, that requires repudiation of the views expressed in Maxwell and Jordan with respect to the size of a jury and the unanimity of its verdict. Mr. Justice Fortas, concurring in Duncan, commented on the distinction between the requirements of the Sixth Amendment [p373] and those of the Due Process Clause and suggested the appropriate framework for analysis of the issue in this case.
I see no reason whatever . . . to assume that our decision today should require us to impose federal requirements such as unanimous verdicts or a jury of 12 upon the States. We may well conclude that these and other features of federal jury practice are by no means fundamental -- that they are not essential to due process of law -- and that they are not obligatory on the States.
Duncan v. Louisiana, 391 U.S. at 213.
The question, therefore, that should be addressed in this case is whether unanimity is, in fact, so fundamental to the essentials of jury trial that this particular requirement of the Sixth Amendment is necessarily binding on the States under the Due Process Clause of the Fourteenth Amendment. An affirmative answer, ignoring the strong views previously expressed to the contrary by this Court in Maxwell and Jordan, would give unwarranted and unwise scope to the incorporation doctrine as it applies to the due process right of state criminal defendants to trial by jury.
The importance that our system attaches to trial by jury derives from the special confidence we repose in a "body of one's peers to determine guilt or innocence as a safeguard against arbitrary law enforcement." Williams v. Florida, 399 U.S. 78, 87 (1970). It is this safeguarding function, preferring the common sense judgment of a jury as a bulwark "against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge," [n10] that lies at the core of our dedication to the principles of jury determination of guilt or innocence. [n11] [p374] This is the fundamental of jury trial that brings it within the mandate of due process. It seems to me that this fundamental is adequately preserved by the jury verdict provision of the Oregon Constitution. There is no reason to believe, on the basis of experience in Oregon or elsewhere, that a unanimous decision of 12 jurors is more likely to serve the high purpose of jury trial, or is entitled to greater respect in the community, than the same decision joined in by 10 members of a jury of 12. The standard of due process assured by the Oregon Constitution provides a sufficient guarantee that the government will not be permitted to impose its judgment on an accused without first meeting the full burden of its prosecutorial duty. [n12] [p375]
Moreover, in holding that the Fourteenth Amendment has incorporated "jot-for-jot and case-for-case" [n13] every element of the Sixth Amendment, the Court derogates principles of federalism that are basic to our system. In the name of uniform application of high standards of due process, the Court has embarked upon a course of constitutional interpretation that deprives the States of freedom to experiment with adjudicatory processes different from the federal model. At the same time, the Court's understandable unwillingness to impose requirements that it finds unnecessarily rigid (e.g., Williams v. Florida, 399 U.S. 78), has culminated in the dilution of federal rights that were, until these decisions, never seriously questioned. The doubly undesirable consequence of this reasoning process, labeled by Mr. Justice Harlan as "constitutional schizophrenia," id. at 136, may well be detrimental both to the state and federal criminal justice systems. Although it is perhaps late in the day for an expression of my views, I would have been in accord with the opinions in similar cases by THE CHIEF JUSTICE and Justices Harlan, STEWART, and Fortas [n14] that, at least in defining the elements of the right to jury trial, there is no sound basis for interpreting the Fourteenth Amendment to require blind adherence by the States to all details of the federal Sixth Amendment standards. [n15] [p376]
While the Civil War Amendments altered substantially the balance of federalism, it strains credulity to believe that they were intended to deprive the States of all freedom to experiment with variations in jury trial procedure. In an age in which empirical study is increasingly relied upon as a foundation for decisionmaking, one of the more obvious merits of our federal system is the opportunity it affords each State, if its people so choose, to become a "laboratory" and to experiment with a range of trial and procedural alternatives. Although the need for the innovations that grow out of diversity has always been great, imagination unimpeded by unwarranted demands for national uniformity is of special importance at a time when serious doubt exists as to the adequacy of our criminal justice system. The same diversity of local legislative responsiveness that marked the development of economic and social reforms in this country, [n16] if not barred by an unduly restrictive application of the Due Process Clause, might well lead to valuable innovations with respect to determining -- fairly and more expeditiously -- the guilt or innocence of the accused.
Viewing the unanimity controversy as one requiring a fresh look at the question of what is fundamental in jury trial, I see no constitutional infirmity in the provision adopted by the people of Oregon. It is the product of a constitutional amendment, approved by a vote of the people in the State, and appears to be patterned on a provision of the American Law Institute's Code of Criminal [p377] Procedure. [n17] A similar decision has been echoed more recently in England, where the unanimity requirement was abandoned by statutory enactment. [n18] Less than unanimous verdict provisions also have been viewed with approval by the American Bar Association's Criminal Justice Project. [n19] Those who have studied the jury mechanism and recommended deviation from the historic rule of unanimity have found a number of considerations to be significant. Removal of the unanimity requirement could well minimize the potential for hung juries occasioned either by bribery or juror irrationality. Furthermore, the rule that juries must speak with a single voice often leads not to full agreement among the 12, but to agreement by none and compromise by all, despite the frequent absence of a rational basis for such compromise. [n20] Quite apart from whether Justices sitting on this Court would have deemed advisable the adoption of any particular less than unanimous jury provision, I think that considerations of this kind reflect a legitimate basis for experimentation and deviation from the federal blueprint. [n21] [p378]
Petitioners in Apodaca v. Oregon, in addition to their primary contention that unanimity is a requirement of state jury trials because the Fourteenth Amendment "incorporates" the Sixth, also assert that Oregon's constitutional provision offends the federal constitutional guarantee against the systematic exclusion of any group within the citizenry from participating in the criminal trial process. While the systematic exclusion of identifiable minorities from jury service has long been recognized as a violation of the Equal Protection Clause (see, e.g., Whitus v. Georgia, 385 U.S. 545 (1967); Strauder v. West Virginia, 100 U.S. 303 (1880)), in more recent years, the Court has held that criminal defendants are entitled, as a matter of due process, to a jury drawn from a representative cross-section of the community. This is an essential element of a fair and impartial jury trial. See Williams v. Florida, 399 U.S. at 100; Alexander v. Louisiana, 405 U.S. 625, 634 (1972) (DOUGLAS, J., concurring). Petitioners contend that less than unanimous jury verdict provisions undercut that right by implicitly permitting in the jury room that which is prohibited in the jury venire selection process -- the exclusion of minority group viewpoints. They argue that, unless unanimity is required even of a properly drawn jury, the result -- whether conviction or acquittal -- may be the unjust product of racism, bigotry, or an emotionally inflamed trial.
Such fears materialize only when the jury's majority, responding to these extraneous pressures, ignores the evidence and the instructions of the court as well as the [p379] rational arguments of the minority. The risk, however, that a jury in a particular case will fail to meet its high responsibility is inherent in any system that commits decisions of guilt or innocence to untrained laymen drawn at random from the community. In part, at least, the majority verdict rule must rely on the same principle that underlies our historic dedication to jury trial: both systems are premised on the conviction that each juror will faithfully perform his assigned duty. MR. JUSTICE Douglas' dissent today appears to rest on the contrary assumption that the members of the jury constituting the majority have no duty to consider the minority's viewpoint in the course of deliberation. Characterizing the jury's consideration of minority views as mere "polite and academic conversation," or "courtesy dialogue," he concludes that a jury is under no obligation in Oregon to deliberate at all if 10 jurors vote together at the outset. Post at 389. No such power freely to shut off competing views is implied in the record in this case, and it is contrary to basic principles of jury participation in the criminal process. While there may be, of course, reasonable differences of opinion as to the merit of the speculative concerns expressed by these petitioners and reflected in the dissenting opinion, I find nothing in Oregon's experience to justify the apprehension that juries not bound by the unanimity rule will be more likely to ignore their historic responsibility.
Moreover, the States need not rely on the presumption of regularity in a vacuum, since each has at its disposal protective devices to diminish significantly the prospect of jury irresponsibility. Even before the jury is sworn, substantial protection against the selection of a representative but willfully irresponsible jury is assured by the wide availability of peremptory challenges and challenges for cause. [n22] The likelihood of miscarriage of justice is [p380] further diminished by the judge's use of full jury instructions, detailing the applicable burdens of proof, informing the jurors of their duty to weigh the views of fellow jurors, [n23] and reminding them of the solemn responsibility imposed by their oaths. Trial judges also retain the power to direct acquittals in cases in which the evidence of guilt is lacking, or to set aside verdicts once rendered when the evidence is insufficient to support a conviction. Furthermore, in cases in which public emotion runs high or pretrial publicity threatens a fair trial, judges possess broad power to grant changes of venue [n24] and to impose restrictions on the extent of press coverage. [n25]
In light of such protections, it is unlikely that the Oregon "ten-of-twelve" rule will account for an increase in the number of cases in which injustice will be occasioned by a biased or prejudiced jury. It may be wise to recall MR. JUSTICE WHITE's admonition in Murphy v. Waterfront Comm'n, 378 U.S. 52, 102 (1964), that the Constitution "protects against real dangers, not remote and speculative possibilities." Since I do not view Oregon's less than unanimous jury verdict requirement as violative of the due process guarantee of the Fourteenth Amendment, I concur in the Court's affirmance of these convictions.
1. That right, of course, is reserved for those crimes that may be deemed "serious." See id. at 159-162; Bloom v. Illinois, 391 U.S. 194 (1968); Baldwin v. New York, 399 U.S. 66 (1970).
2. This contention was raised in Carcerano v. Gladden, which was consolidated and disposed of along with the DeStefano opinion.
3. In addition to the jury trial issues in this case, I also join Part IV of the Court's opinion insofar as it concludes that the lineup identification was not the fruit of the prior warrantless arrest. Wong Sun v. United States, 371 U.S. 471 (1963). Under the circumstances of this case, I find it unnecessary to reach the question whether appellant's warrantless arrest was constitutionally invalid.
4. Jury trial in federal cases is also assured by Art. III, § 2, of the Constitution: "The Trial of all Crimes . . . shall be by Jury."
5. See also MR. JUSTICE WHITE's opinion for the Court in Swain v. Alabama, 380 U.S. 202, 211 (1965), stating, in dictum, that
Alabama adheres to the common law system of trial by an impartial jury of 12 men who must unanimously agree on a verdict, the system followed in the federal courts by virtue of the Sixth Amendment.
The same result has been attained with respect to the right to jury trial in civil cases under the Seventh Amendment. See American Publishing Co. v. Fisher, 166 U.S. 464, 467-468 (1897); Springville v. Thomas, 166 U.S. 707 (1897).
6. The process of determining the content of the Sixth Amendment right to jury trial has long been one of careful evaluation of, and strict adherence to the limitations on, that right as it was known in criminal trials at common law. See Williams v. Florida, 399 U.S. 78, 117, 122-129 (1970) (separate opinion of Harlan, J.).
A recent example of that process of constitutional adjudication may be found in Part II of the Court's opinion in Duncan v. Louisiana, 391 U.S. at 159-162, in which "petty" offenses were excluded from the rule requiring jury trial because such "offenses were tried without juries both in England and in the Colonies." The Court found "no substantial evidence that the Framers intended to depart from this established common law practice." Id. at 160. To the same effect, see Mr. Justice Harlan's dissent in Baldwin v. New York (appearing in Williams v. Florida, 399 U.S. at 119-121).
Also representative of this historical approach to the Sixth Amendment are the exhaustive majority and dissenting opinions in Sparf v. United States, 156 U.S. 51 (1895), in which the Court ultimately concluded that federal criminal juries were empowered only to decide questions of "fact." Rather than attempting to determine whether the fact-law distinction was desirable or whether it might be essential to the function performed by juries, the decision was premised on the conclusion that English and Colonial juries had no right to decide questions of law.
The same historical approach accounts for the numerous Supreme Court opinions (see text accompanying n. 5), finding unanimity to be one of the attributes subsumed under the term "jury trial." No reason, other than the conference committee's revision of the House draft of the Sixth Amendment, has been offered to justify departure from this Court's prior precedents. The admitted ambiguity of that piece of legislative history is not sufficient, in my view, to override the unambiguous history of the common law right. William v. Florida, 399 U.S. at 123 n. 9.
7. See, e.g., R. Perry, Sources of Our Liberties 270, 281-282, 288, 429 (1959); 3 J. Story, Commentaries on the Constitution 652-653 (1st ed. 1833).
8. See, e.g., 4 W. Blackstone, Commentaries *376; W. Forsyth, History of Trial By Jury 238-258 (1852); M. Hale, Analysis of the Law of England 119 (1716).
9. I agree with MR. JUSTICE WHITE's analysis in Duncan that the departure from earlier decisions was, in large measure, a product of a change in focus in the Court's approach to due process. No longer are questions regarding the constitutionality of particular criminal procedures resolved by focusing alone on the element in question and ascertaining whether a system of criminal justice might be imagined in which a fair trial could be afforded in the absence of that particular element. Rather, the focus is, as it should be, on the fundamentality of that element viewed in the context of the basic Anglo-American jurisprudential system common to the States. Duncan v. Louisiana, supra, at 149-150, n. 14. That approach to due process readily accounts both for the conclusion that jury trial is fundamental and that unanimity is not. See Part III, infra.
10. Duncan v. Louisiana, 391 U.S. at 156. See also Baldwin v. New York, 399 U.S. at 72.
11. Indeed, so strongly felt was the jury's role as the protector of "innocence against the consequences of the partiality and undue bias of judges in favor of the prosecution," that, at an earlier point in this country's history, some of the States deemed juries the final arbiters of all questions arising in criminal prosecutions, whether factual or legal. To allow judges to determine the law was considered by some States to pose too great a risk of judicial oppression, favoring the State above the accused. See, e.g., State v. Croteau, 23 Vt. 14, 21 (1849); Howe, Juries as Judges of Criminal Law, 52 Harv.L.Rev. 582 (1939). That historical preference for jury decisionmaking is still reflected in the criminal procedures of two States. Ind.Const., Art. I, § 19; Md.Const., Art. XV, § 5. See Brady v. Maryland, 373 U.S. 83 (1963); Wyley v. Warden, 372 F.2d 742, 746 (CA4), cert. denied, 389 U.S. 863 (1967); Beavers v. State, 236 Ind. 549, 141 N.E.2d 118 (1957).
12. The available empirical research indicates that the jury trial protection is not substantially affected by less than unanimous verdict requirements. H. Kalven and H. Zeisel, in their frequently cited study of American juries (The American Jury (Phoenix ed.1971)), note that, where unanimity is demanded, 5.6% of the cases result in hung juries. Id. at 461. Where unanimity is not required, available statistics indicate that juries will still be hung in over 3% of the cases. Thus, it may be estimated roughly that Oregon's practice may result in verdicts in some 2.5% more of the cases cases in which no verdict would be returned if unanimity were demanded. Given the large number of causes to which this percentage disparity might be attributed, and given the possibility of conviction on retrial, it is impossible to conclude that this percentage represents convictions obtained under standards offensive to due process.
13. Duncan v. Louisiana, supra, at 181 (Harlan, J., dissenting).
14. Id. at 391 U.S. 173"]173-183 (Harlan, J., dissenting); Bloom v. Illinois, 391 U.S. at 211 (Fortas, J., concurring); Baldwin v. New York, 399 U.S. at 76-77 (BURGER, C.J., dissenting); Williams v. Florida, 399 U.S. at 117, 143 (separate opinions of Harlan, J., and STEWART, J.). Cf. MR. JUSTICE DOUGLAS concurring opinion in 173-183 (Harlan, J., dissenting); Bloom v. Illinois, 391 U.S. at 211 (Fortas, J., concurring); Baldwin v. New York, 399 U.S. at 76-77 (BURGER, C.J., dissenting); Williams v. Florida, 399 U.S. at 117, 143 (separate opinions of Harlan, J., and STEWART, J.). Cf. MR. JUSTICE DOUGLAS concurring opinion in Alexander v. Louisiana, 405 U.S. 625, 637 n. 4 (1972).
15. My unwillingness to accept the "incorporationist" notion that jury trial must be applied with total uniformity does not require that I take issue with every precedent of this Court applying various criminal procedural right to the States with the same force that they are applied in federal courts. See Mr. Justice Fortas' opinion in Bloom v. Illinois, 391 U.S. at 214, which also applied to Duncan.
16. See Mr. Justice Brandeis' oft-quoted dissent in New State Ice Co. v. Liebmann, 285 U.S. 262, 280, 309-311 (1932), in which he details the stultifying potential of the substantive due process doctrine.
17. ALI, Code of Criminal Procedure § 335 (1930).
18. Criminal Justice Act 1967, c. 80, § 13 (Great Britain).
19. American Bar Association, Project on Standards for Criminal Justice, Trial By Jury § 1.1 (Approved Draft 1968) (see also commentary, at 25-28). ,
20. See, e.g., Kalven & Zeisel, The American Jury: Notes For an English Controversy, 48 Chi.B.Rec.195 (1967); Samuels, Criminal Justice Act, 31 Mod.L.Rev. 16, 24-27 (1968); Comment, Waiver of Jury Unanimity -- Some Doubts About Reasonable Doubt, 21 U.Chi.L.Rev. 438, 444-445 (1954); Comment, Should Jury Verdicts Be Unanimous in Criminal Cases?, 47 Ore.L.Rev. 417 (1968).
21. See State v. Gann, 254 Ore. 549, 463 P.2d 570 (1969).
Approval of Oregon's 10-2 requirement does not compel acceptance of all other majority verdict alternatives. Due process and its mandate of basic fairness often require the drawing of difficult lines. See Francis v. Resweber, 329 U.S. 459, 466, 471 (1947) (Frankfurter, J., concurring). Full recognition of the function performed by jury trials, coupled with due respect for the presumptive validity of state laws based on rational considerations such as those mentioned above, will assist in finding the required balance when the question is presented in a different context.
22. See, e.g., Swain v. Alabama, 380 U.S. 202, 209-222 (1965).
23. Allen v. United States, 164 U.S. 492 (1896).
24. See, e.g., Irvin v. Dowd, 366 U.S. 717 (1961).
25. See, e.g., Sheppard v. Maxwell, 384 U.S. 333 (1966); Estes v. Texas, 381 U.S. 532 (1965).