POWELL, J., Concurring Opinion

SUPREME COURT OF THE UNITED STATES

435 U.S. 223

Ballew v. Georgia

CERTIORARI TO THE COURT OF APPEALS OF GEORGIA

MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST join, concurring in the judgment.

I concur in the judgment, as I agree that use of a jury as small as five members, with authority to convict for serious offenses, involves grave questions of fairness. As the opinion of MR. JUSTICE BLACKMUN indicates, the line between five [p246] and six-member juries is difficult to justify, but a line has to be drawn somewhere if the substance of jury trial is to be preserved.

I do not agree, however, that every feature of jury trial practice must be the same in both federal and state courts. Apodaca v. Oregon, 406 U.S. 404, 414 (1972) (POWELL, J., concurring). Because the opinion of MR. JUSTICE BLACKMUN today assumes full incorporation of the Sixth Amendment by the Fourteenth Amendment contrary to my view in Apodaca, I do not join it. Also, I have reservations as to the wisdom -- as well as the necessity -- of MR. JUSTICE BLACKMUN's heavy reliance on numerology derived from statistical studies. Moreover, neither the validity nor the methodology employed by the studies cited was subjected to the traditional testing mechanisms of the adversary process. ^[*] The studies relied on merely represent unexamined findings of persons interested in the jury system.

For these reasons I concur only in the judgment.

* The opinion of MR. JUSTICE BLACKMUN acknowledges, in disagreeing with other studies, that "methodological problems" may "mask differences in the operation of smaller and larger juries." Ante at 237. See also ante at 242-243.