duncan louisiana argued january decided may louisiana law simple battery misdemeanor punishable maximum two years imprisonment fine appellant convicted simple battery sentenced days prison fine requested jury trial denied louisiana constitution grants jury trials cases capital punishment imprisonment hard labor may imposed louisiana denied certiorari held since trial jury criminal cases fundamental american scheme justice fourteenth amendment guarantees right jury trial criminal cases tried federal come within sixth amendment guarantee trial jury pp penalty authorized particular crime major relevance determining whether serious one subject mandates sixth amendment sufficient without defining boundary petty offenses serious crimes hold crime punishable two years prison serious crime appellant entitled jury trial pp richard sobol argued cause appellant briefs alvin bronstein anthony amsterdam dorothy wolbrette assistant attorney general louisiana argued cause appellee brief jack gremillion attorney general william schuler second assistant attorney general clement john currier assistant attorneys general leander perez lawrence mcnamara louis lefkowitz attorney general samuel hirshowitz first assistant attorney general michael rauch assistant attorney general filed brief state new york amicus curiae justice white delivered opinion appellant gary duncan convicted simple battery judicial district louisiana louisiana law simple battery misdemeanor punishable maximum two years imprisonment fine appellant sought trial jury louisiana constitution grants jury trials cases capital punishment imprisonment hard labor may imposed trial judge denied request appellant convicted sentenced serve days parish prison pay fine appellant sought review louisiana asserting denial jury trial violated rights guaranteed constitution finding error law ruling complained denied appellant writ certiorari pursuant appellant sought review alleging sixth fourteenth amendments constitution secure right jury trial state criminal prosecutions sentence long two years may imposed noted probable jurisdiction set case oral argument bloom illinois post appellant years age tried driving highway plaquemines parish october saw two younger cousins engaged conversation side road four white boys knowing cousins negroes recently transferred formerly high school reported occurrence racial incidents school duncan stopped car got approached six boys trial white boys white onlooker testified appellant cousins testimony dispute many points witnesses agreed appellant white boys spoke appellant encouraged cousins break encounter enter car appellant enter car purpose driving away cousins whites testified getting car appellant slapped herman landry one white boys elbow negroes testified appellant slapped landry merely touched trial judge concluded state proved beyond reasonable doubt duncan committed simple battery found guilty test determining whether right extended fifth sixth amendments respect federal criminal proceedings also protected state action fourteenth amendment phrased variety ways opinions question asked whether right among fundamental principles liberty justice lie base civil political institutions powell alabama whether basic system jurisprudence oliver whether fundamental right essential fair trial gideon wainwright malloy hogan pointer texas claim us right trial jury guaranteed sixth amendment meets tests position louisiana hand constitution imposes upon duty give jury trial criminal case regardless seriousness crime size punishment may imposed believe trial jury criminal cases fundamental american scheme justice hold fourteenth amendment guarantees right jury trial criminal cases tried federal come within sixth amendment guarantee since consider appeal us case hold constitution violated appellant demand jury trial refused history trial jury criminal cases frequently told sufficient present purposes say time constitution written jury trial criminal cases existence england several centuries carried impressive credentials traced many magna carta preservation proper operation protection arbitrary rule among major objectives revolutionary settlement expressed declaration bill rights century blackstone write law therefore wisely placed strong barrier presentment trial jury liberties people prerogative crown necessary preserving admirable balance constitution vest executive power laws prince yet power might dangerous destructive constitution exerted without check control justices oyer terminer occasionally named crown might france turkey imprison dispatch exile man obnoxious government instant declaration pleasure founders english law excellent forecast contrived truth every accusation whether preferred shape indictment information appeal afterwards confirmed unanimous suffrage twelve equals neighbours indifferently chosen superior suspicion trial jury inherent invaluable right every british subject colonies respective colonies entitled common law england especially great inestimable privilege tried peers vicinage according course law trial crimes except cases impeachment shall jury trial shall held state said crimes shall committed criminal prosecutions accused shall enjoy right speedy public trial impartial jury state district wherein crime shall committed even skeletal history impressive support considering right jury trial criminal cases fundamental system justice importance frequently recognized opinions example said emigrated country england brought great privilege birthright inheritance part admirable common law fenced around interposed barriers every side approaches arbitrary power aware prior cases prevailing opinion contains statements contrary holding today right jury trial serious criminal cases fundamental right hence must recognized part obligation extend due process law persons within jurisdiction louisiana relies especially maxwell dow palko connecticut snyder massachusetts none cases however dealt state purported dispense entirely jury trial serious criminal cases maxwell held provision bill rights applied position long since repudiated due process clause fourteenth amendment prevent state trying defendant noncapital offense fewer men jury deal case jury provided neither palko snyder jury trial actually issue although cases contain important dicta asserting right jury trial essential ordered liberty may dispensed regardless sixth fourteenth amendments observations though weighty respectable nevertheless dicta unsupported holdings state may refuse defendant demand jury trial charged serious crime perhaps right jury trial directly stake remarks jury palko snyder took note past current developments regarding jury trials consider purposes functions attempted inquiry well performing job discuss possible distinctions civil criminal cases malloy hogan supra rejected palko discussion clause respectfully reject prior dicta regarding jury trial criminal cases guarantees jury trial federal state constitutions reflect profound judgment way law enforced justice administered right jury trial granted criminal defendants order prevent oppression government wrote constitutions knew history experience necessary protect unfounded criminal charges brought eliminate enemies judges responsive voice higher authority framers constitutions strove create independent judiciary insisted upon protection arbitrary action providing accused right tried jury peers gave inestimable safeguard corrupt overzealous prosecutor compliant biased eccentric judge defendant preferred judgment jury tutored perhaps less sympathetic reaction single judge beyond jury trial provisions federal state constitutions reflect fundamental decision exercise official power reluctance entrust plenary powers life liberty citizen one judge group judges fear unchecked power typical state federal governments respects found expression criminal law insistence upon community participation determination guilt innocence deep commitment nation right jury trial serious criminal cases defense arbitrary law enforcement qualifies protection due process clause fourteenth amendment must therefore respected course jury trial weaknesses potential misuse singer aware long debate especially century among write administration justice wisdom permitting untrained laymen determine facts civil criminal proceedings although debate intense powerful voices either side controversy centered jury civil cases indeed severest critics civil juries acknowledge arguments criminal juries much stronger addition heart dispute express implicit assertions juries incapable adequately understanding evidence determining issues fact unpredictable quixotic little better roll dice yet recent exhaustive study jury criminal cases concluded juries understand evidence come sound conclusions cases presented juries differ result judge arrived usually serving purposes created employed state louisiana urges holding fourteenth amendment assures right jury trial cast doubt integrity every trial conducted without jury plainly import holding conclusion american federal judicial system general grant jury trial serious offenses fundamental right essential preventing miscarriages justice assuring fair trials provided defendants assert however every criminal trial particular trial held judge alone unfair defendant may never fairly treated judge jury thus hold constitutional doubts practices common federal state courts accepting waivers jury trial prosecuting petty crimes without extending right jury trial however fact places trials serious crimes juries alone great many defendants prefer judgment jury even defendants satisfied bench trials right jury trial likely serves intended purpose making judicial prosecutorial unfairness less likely ii think petty offenses tried without juries england colonies always held exempt otherwise comprehensive language sixth amendment jury trial provisions substantial evidence framers intended depart established practice possible consequences defendants convictions petty offenses thought insufficient outweigh benefits efficient law enforcement simplified judicial administration resulting availability speedy inexpensive nonjury adjudications considerations compel result fourteenth amendment course boundaries petty offense category always ambulatory absence explicit constitutional provision definitional task necessarily falls courts must either pass upon validity legislative attempts identify petty offenses exempt jury trial legislature addressed problem face question first instance either case necessary draw line spectrum crime separating petty serious infractions process although essential wholly satisfactory requires attaching different consequences events lie near line actually differ little determining whether length authorized prison term seriousness punishment enough require jury trial counseled district columbia clawans supra refer objective criteria chiefly existing laws practices nation federal system petty offenses defined punishable six months prison fine crimes subject trial without jury occasionally include simple battery punishable one year jail moreover late century america crimes triable without jury part punishable prison term although appear exceptions rule need however settle case exact location line petty offenses serious crimes sufficient purposes hold crime punishable two years prison based past contemporary standards country serious crime petty offense consequently appellant entitled jury trial error deny judgment reversed case remanded proceedings inconsistent opinion concurring opinion justice fortas see post footnotes cases punishment may hard labor shall tried judge without jury cases punishment may hard labor shall tried jury five must concur render verdict cases punishment necessarily hard labor jury twelve nine must concur render verdict cases punishment may capital jury twelve must concur render verdict simple battery battery without consent victim committed without dangerous weapon whoever commits simple battery shall fined three hundred dollars imprisoned two years la chicago chicago see fiske kansas see mapp ohio malloy hogan gideon wainwright klopfer north carolina oliver pointer texas washington texas quoting hebert louisiana one sense recent cases applying provisions first eight amendments represent new approach incorporation debate earlier seen asked inquiring whether particular procedural safeguard required state civilized system imagined accord particular protection example palko connecticut stated right trial jury immunity prosecution except result indictment may value importance even essence scheme ordered liberty narrow provincial maintain fair enlightened system justice impossible without recent cases hand proceeded upon valid assumption state criminal processes imaginary theoretical schemes actual systems bearing virtually every characteristic system developing contemporaneously england country question thus whether given kind system particular procedure fundamental whether procedure necessary regime ordered liberty sort inquiry justify conclusions state courts must exclude evidence seized violation fourth amendment mapp ohio state prosecutors may comment defendant failure testify griffin california criminal punishment may imposed status narcotics addiction robinson california immediate relevance case holdings must comply certain provisions sixth amendment specifically may refuse speedy trial confrontation witnesses assistance state expense necessary counsel see cases cited nn supra determinations constitutional provision originally written bind federal government bind well might said limitation question necessarily fundamental fairness every criminal system might imagined fundamental context criminal processes maintained american inquiry approached way question whether impose criminal punishment without granting jury trial appears quite different way appeared older cases opining might abolish jury trial see maxwell dow criminal process fair equitable used juries easy imagine make use alternative guarantees protections serve purposes jury serves english american systems yet american state undertaken construct system instead every american state including louisiana uses jury extensively imposes serious punishments trial defendant right jury verdict every state including louisiana structure style criminal process supporting framework subsidiary procedures sort naturally complement jury trial developed connection reliance upon jury trial forsyth history trial jury thayer preliminary treatise evidence common law holdsworth history english law blackstone commentaries laws england cooley ed historians longer accept pedigree see pollock maitland history english law time edward ed blackstone supra perry sources liberties among proposed amendments adopted house representatives submitted senate article fourteen state shall infringe right trial jury criminal cases rights conscience freedom speech press thompson utah quoting story commentaries constitution see also irvin dowd ex rel toth quarles ex parte milligan wall people garbutt proposed maryland constitution art defeated referendum may michigan constitution art proposed new york constitution art defeated referendum jury trial clause clearly intended protect accused oppression government singer first object tyrant whitehall make parliament utterly subservient next overthrow diminish trial jury tyrant afford leave subject freedom hands twelve countrymen trial jury instrument justice one wheel constitution lamp shows freedom lives devlin trial jury thorough summary arguments made jury trial extensive bibliography relevant literature available hearings recording jury deliberations subcommittee investigate administration internal security act senate committee judiciary selective bibliography appears kalven zeisel american jury frank courts trial sidgwick elements politics ed kalven zeisel supra see patton see part ii infra kalven zeisel supra louisiana also asserts due process deemed include right jury trial obligated comply past interpretations sixth amendment amendment inception designed control federal courts throughout history operated limited environment uniformity obvious immediate consideration particular louisiana objects application decisions interpreting sixth amendment guaranteeing jury serious criminal cases thompson utah requiring unanimous verdict guilt found maxwell dow barring procedures crimes subject sixth amendment jury trial provision tried first instance without jury first appellate stage de novo trial jury callan wilson seems unlikely us decision today require widespread changes state criminal processes first decisions interpreting sixth amendment always subject reconsideration fact amply demonstrated instant decision addition provisions jury trials equal breadth sixth amendment amendment construed permit trial petty crimes offenses without jury indeed appear four juries fewer used without defendant consent offenses carrying maximum penalty greater one year oregon louisiana jury convict offense maximum penalty greater one year however authorize trials without juries crimes carrying lengthy penalties give convicted defendant right de novo trial jury different statutory provisions listed briefs filed case cheff schnackenberg district columbia clawans schick natal louisiana see callan wilson see generally frankfurter corcoran petty federal offenses constitutional guaranty trial jury harv rev kaye petty offenders peers chi rev indeed appear two instances aside louisiana scheme state denies jury trial crime punishable imprisonment longer six months new jersey disorderly conduct offense stat ann carries maximum sentence jury trial denial jury trial upheld vote state constitutional attack state maier new york state provides jury within new york city offenses bearing maximum sentence greater one year see people sanabria misc sup frankfurter corcoran supra instant case louisiana argued penalty two years imprisonment sufficiently short qualify petty offense penalty actually imposed duncan imprisonment days within petty offense category argued cheff schnackenberg interpreted sixth amendment meaning extent length punishment relevant criterion distinguishing serious crimes petty offenses critical factor length sentence authorized length penalty actually imposed view case reach situation legislative judgment seriousness crime imbedded statute form express authorization impose heavy penalty crime question cheff involved criminal contempt offense applied wide range conduct including conduct serious require jury trial absent long sentence addition criminal contempt unique legislative bodies frequently authorize punishment without stating extent penalty imposed contempt statute cheff prosecuted treated extent punishment matter determined forum therefore understandable cheff seized upon penalty actually imposed best evidence seriousness offense cheff tried justice black justice douglas joins concurring today holds right trial jury guaranteed defendants criminal cases federal courts art iii constitution sixth amendment also guaranteed fourteenth amendment defendants tried state courts holding agree reasons given also agree reasons given dissent adamson california dissent took position contrary holding twining new jersey fourteenth amendment made provisions bill rights applicable palko connecticut decided although saying general rule went add fourteenth amendment may make unlawful state abridge statutes freedom speech first amendment safeguards encroachment congress like freedom press free exercise religion right peaceable assembly right one accused crime benefit counsel situations immunities valid federal government force specific pledges particular amendments found implicit concept ordered liberty thus fourteenth amendment become valid holdings making bill rights provisions applicable mark course departure twining doctrine holding none provisions enforceable dissent case however makes spirited forceful defense discredited doctrine believe necessary repeat historical logical reasons challenge twining holding contained adamson dissent appendix wrote product years study research appraisal legislative history followed years legislative experience senator bad way suspect learn value said legislative debates committee discussions committee reports various steps taken course passage bills resolutions proposed constitutional amendments brother harlan objections adamson dissent history like objectors relies heavily criticism written professor charles fairman published stanford law review stan rev read studied article extensively including historical references compelled add view completely failed refute inferences arguments suggested adamson dissent professor fairman history relies heavily said state legislatures passed fourteenth amendment instead relying kind negative pregnant legislative experience convinced far wiser rely said importantly said men actually sponsored amendment congress know years senate men like congressman bingham steered amendment house senator howard introduced senate members congress look seek real meaning offered vote bill based sponsors bill oppose tell means historical appendix adamson dissent leaves doubt mind sponsors opposed believed fourteenth amendment made first eight amendments constitution bill rights applicable addition adoption professor fairman history dissent great words four clauses first section fourteenth amendment exceedingly peculiar way say rights heretofore guaranteed federal intrusion first eight amendments henceforth guaranteed state intrusion well dissenting opinion response say words state shall make enforce law shall abridge privileges immunities citizens seem eminently reasonable way expressing idea henceforth bill rights shall apply precious privilege american citizenship privilege claim protections great bill rights suggest reading privileges immunities citizens excludes bill rights safeguards renders words section fourteenth amendment meaningless senator howard introduced fourteenth amendment passage senate certainly read words way although cited speech length adamson dissent appendix believe worthwhile reproduce part character privileges immunities spoken second section fourth article constitution senator read old opinion corfield coryell fed cas privileges immunities whatever may fully defined entire extent precise nature added personal rights guarantied secured first eight amendments constitution freedom speech press right people peaceably assemble petition government redress grievances right appertaining people right keep bear arms right exempted quartering soldiers house without consent owner right exempt unreasonable searches seizures search seizure except virtue warrant issued upon formal oath affidavit right accused person informed nature accusation right tried impartial jury vicinage also right secure excessive bail cruel unusual punishments sir mass privileges immunities rights secured second section fourth article constitution recited first eight amendments constitution fact well worthy attention course decision courts present settled doctrine immunities privileges rights thus guarantied constitution recognized secured citizens solely citizen party courts operate slightest degree restraint prohibition upon state legislation great object first section amendment therefore restrain power compel times respect great fundamental guarantees cong globe wish time discuss length disagreement brother harlan forthright frank restatement discredited twining doctrine want point appears basic difference us view indeed view twining due process evolving concept therefore entails gradual process judicial inclusion exclusion ascertain immutable principles free government member union may disregard thus due process clause treated prescribing specific clearly ascertainable constitutional command judges must obey interpreting constitution rather leaving judges free decide particular time whether particular rule judicial formulation embodies immutable principl free government implicit concept ordered liberty whether certain conduct shocks judge conscience runs counter similar undefined undefinable standard thus due process according brother harlan phrase permanent meaning one found shift time time accordance judges predilections understandings best country due process means fourteenth amendment opinion might well written person shall deprived life liberty property except laws judges shall find consistent immutable principles free government impossible believe unconfined power given judges constitution written one order limit governmental power another tenet twining doctrine restated brother harlan due process law requires fundamental fairness fundamental fairness test one par shocking conscience tests depends entirely particular judge idea ethics morals instead requiring depend boundaries fixed written words constitution nothing history phrase due process law suggests constitutional controls depend particular judge sense values origin due process clause chapter magna carta declares free man shall taken outlawed banished way destroyed proceed prosecute except lawful judgment peers law land emphasis added early words due process law used english statute interpreting magna carta end century due process law law land interchangeable thus origin clause attempt wrote magna carta away trials period people liable sudden arrest summary conviction courts judicial commissions sure definite procedural protections laws might improvised try particular cases chapter magna carta guarantee government take neither life liberty property without trial accord law land already existed time alleged offense committed means due process clause gives americans whoever wherever happen right tried independent unprejudiced courts using established procedures applying valid laws one word legal history justifies making term due process law mean guarantee trial free laws conduct courts deem time arbitrary unreasonable unfair contrary civilized standards due process law standard trial one accordance bill rights laws passed pursuant constitutional power guaranteeing alike trial general law land finally want add bothered argument applying bill rights according standards protect personal rights federal encroachment interferes concept federalism may prevent trying novel social economic experiments never believed guise federalism able experiment protections afforded citizens bill rights justice goldberg said wisely concurring opinion pointer texas deny power impair fundamental constitutional right increase federal power rather limit power federal state governments favor safeguarding fundamental rights liberties individual view promotes rather undermines basic policy avoiding excess concentration power government federal state underlies concepts federalism closing want emphasize believe strongly ever fourteenth amendment intended make bill rights applicable willing support selective incorporation doctrine however alternative although perhaps less historically supportable complete incorporation selective incorporation process used properly limit fourteenth amendment field specific bill rights protections keeps judges roaming notions policies outside bill rights desirable importantly selective incorporation process virtue already worked make bill rights protections applicable view fourteenth amendment whole makes bill rights applicable certainly include language privileges immunities clause well due process clause thorough exposition views approach due process clause see concurring opinion rochin california see murray lessee hoboken land improvement edw see malloy hogan pointer texas miranda arizona justice harlan justice stewart joins dissenting every american jurisdiction provides trial jury criminal cases question us whether jury trial ancient institution whether plays significant role administration criminal justice whether endure shall question case whether state louisiana provides trial jury felonies prohibited constitution trying charges simple battery alone view answer question mandated alike constitutional history longer history trial jury clearly always borne primary responsibility operating machinery criminal justice within borders adapting particular circumstances exercising responsibility state compelled conform procedures requirements federal constitution due process clause fourteenth amendment requires procedures fundamentally fair respects view impose encourage nationwide uniformity sake command adherence forms happen old impose rules may force federal courts except rules also found essential basic fairness approach case uneasy illogical compromise among views various justices due process clause interpreted say framed fourteenth amendment intended make sixth amendment applicable concedes finds nothing unfair procedure present appellant tried nevertheless reverses conviction holds reason apparent due process clause incorporates particular clause sixth amendment requires trial jury federal criminal cases including read opinion sometimes trivial accompanying baggage judicial interpretation federal contexts raised voice many times continuing undiscriminating insistence upon fastening federal notions criminal justice must instance respect approach reading history altogether civil war amendments dramatically altered relation federal government first section fourteenth amendment imposes highly significant restrictions state action restrictions couched broad general terms citizenship privileges immunities due process law equal protection laws consequently years engaged difficult process professor jaffe well called search intermediate premises question properly look find specific rules define give content terms life liberty property due process law members taken position intention drafted first section fourteenth amendment simply exclusively make provisions first eight amendments applicable state action view never accepted view often expressed elsewhere first section fourteenth amendment meant neither incorporate limited specific guarantees first eight amendments overwhelming historical evidence marshalled professor fairman demonstrates conclusively congressmen state legislators wrote debated ratified fourteenth amendment think incorporating bill rights breadth generality amendment provisions suggest authors suppose nation always limited century conceptions liberty due process law increasing experience evolving conscience american people add new intermediate premises short neither history sense supports using fourteenth amendment put constitutional straitjacket respect development administration criminal civil law although therefore fundamentally disagree total incorporation view fourteenth amendment seems position least virtue lacking selective incorporation approach internal consistency look bill rights word word clause clause precedent precedent said men wrote amendment wanted way accept history different source intermediate premises must found bill rights necessarily irrelevant search guidance interpreting fourteenth amendment reason nature relevance must articulated apart approach taken absolute incorporationists see one method analysis internal logic start words liberty due process law attempt define way accords american traditions system government approach involving much discriminating process adjudication incorporation albeit difficult one followed throughout present century entails gradual process judicial inclusion exclusion seeking due recognition constitutional tolerance state experimentation disparity ascertain immutable principles free government member union may disregard due process restricted rules fixed past deny every quality law age render incapable progress improvement impose nationwide uniformity details fourteenth amendment profess secure persons benefit laws remedies great diversities respects may exist two separated imaginary line one side line may right trial jury side right state prescribes modes judicial proceeding relationship bill rights gradual process seems twofold first place long clear due process clause imposes restrictions state action parallel bill rights restrictions federal action second important accidental overlap fact bill rights evidence various points content americans find term liberty american standards fundamental fairness example phenomenon parallelism use first eight amendments evidence historic commitment found partial definition liberty offered justice holmes dissenting gitlow new york general principle free speech must taken included fourteenth amendment view scope given word liberty used although perhaps may accepted somewhat larger latitude interpretation allowed congress sweeping language governs govern laws security one privacy arbitrary intrusion police core fourth amendment basic free society therefore implicit concept ordered liberty enforceable due process clause fact right involved character denied without violating fundamental principles liberty justice lie base civil political institutions obviously one compelling considerations must prevail determining whether embraced within due process clause fourteenth amendment although specifically dealt another part federal constitution emphasis added instances right guaranteed fourteenth amendment one also guaranteed federal government one first eight amendments logically critical thing however rights found bill rights deemed context american legal history fundamental perhaps best explained justice cardozo speaking included chief justice hughes justices brandeis stone palko connecticut fourteenth amendment absorbed process absorption source belief neither liberty justice exist sacrificed decision turn upon fact benefit counsel guaranteed defendants provisions sixth amendment prosecuted federal decision turned upon fact particular situation laid us evidence benefit counsel essential substance hearing line division may seem wavering broken hasty catalogue cases one side reflection analysis induce different view emerges perception rationalizing principle gives discrete instances proper order coherence right trial jury immunity prosecution except result indictment may value importance even essence scheme ordered liberty abolish violate principle justice rooted traditions conscience people ranked fundamental narrow provincial maintain fair enlightened system justice impossible without emphasis added justified neither starting place conclusion problem discover articulate rules fundamental fairness criminal proceedings reason reason assume whole body rules developed constituting sixth amendment jury trial must regarded unit requirement trial jury federal criminal cases given rise numerous subsidiary questions respecting exact scope content right surely every answer given give question attributable founders even every rule announced carries equal conviction still less every subprinciple equally fundamental ordered liberty examples abound suppose obviously fundamental fairness jury means impartial jury think equally obvious rule imposed long ago federal courts jury means jury exactly twelve fundamental anything significance except mystics number trial jury held require unanimous verdict jurors federal courts although unanimity found essential liberty britain requirement abandoned one example directly relevant requirement jury trial federal criminal cases historic universally recognized exception petty crimes compelled occasion decide whether particular crime petty included within guarantee individual cases decided without great conviction without reference guiding principle today holds discernible reason line drawn exact location matter fundamental importance uniformly imposed compelled decide obscure borderline questions course administering federal law mean decisions demonstrably sounder reached state courts legislatures let alone importance fairness demands imposition throughout nation even agree question us whether sixth amendment jury trial totally totally find opinion real reasons concluding basis differentiating among clauses bill rights clauses bill rights old much praised played important role development federal law things true says clauses fundamental others turns using word sense astonished justice cardozo addition help word mean analytically critical procedural fairness real analysis role jury making procedures fair even attempted instead word turns mean old much praised found bill rights definition fundamental thus turns circular ii obvious starting place fact past held trial jury requisite criminal due process leading case maxwell dow justice peckham wrote follows trial jury never affirmed necessary requisite due process law right proceeded indictment right trial twelve jurors nature subject judgment people several right provide organic law change either state full control procedure courts civil criminal cases subject qualification procedure must work denial fundamental rights conflict specific applicable provisions federal constitution legislation question opinion open either objections even go farther say privileges immunities contained bill rights constitution intended apply moment annexation place decision case upon ground two rights alleged violated case sixth amendment jury trial grand jury indictment fundamental nature concern merely method procedure sixty years practice shown suited conditions islands well calculated conserve rights citizens lives property although course open reexamine decisions see reason overturned hardly said time altered question brought significant new evidence bear upon virtues defects jury system hotly debated long time hotly debated today without significant change lines argument argument jury trial requisite due process quite simple central proposition palko supra proposition adhere due process law requires criminal trials fundamentally fair stated apart theory historically intended mere shorthand bill rights see else due process law intelligibly thought mean due process law requires fundamental fairness inquiry case must whether state trial process fair one held properly think adversary process requisite fairness adequate substitute criminal defendant afforded right counsel opposing witnesses simply demonstrated think demonstrated trial jury fair means resolving issues fact jury course without virtues affords ordinary citizens valuable opportunity participate process government experience fostering one hopes respect law eases burden judges enabling share part sometimes awesome responsibility jury may times afford higher justice refusing enforce harsh laws although necessarily haphazardly raising questions whether arbitrary enforcement harsh laws better total enforcement whether jury system defended ground jurors sometimes disobey oaths jury may may contribute desirably willingness general public accept criminal judgments hardly gainsaid however principal original virtue jury trial limitations jury imposes tyrannous judiciary largely disappeared longer live medieval colonial society judges enforce laws enacted democratic decision regal fiat elected people appointed people elected officials responsible distant monarch alone reviewing courts including one jury system also said inherent defects multiplied emergence criminal law relative simplicity existed jury system devised cumbersome process imposing great cost time money state jurors also contributing delay machinery justice untrained jurors presumably less adept reaching accurate conclusions fact judges particularly issues many complex argued trial jury far increasing public respect law impairs average man said reacts favorably neither notion matters knows complex decided average men way jury system distorts process adjudication trial jury fair way adjudicating criminal guilt well attested fact prevailing way either england country england one expert makes following estimates parliament generally provides new statutory offenses unless considerable gravity shall tried judges consequently summary offenses outnumber offenses jury trial afforded six one within latter category cases fact tried ratio defendants actually tried jury becomes years little per cent generally assumed jury waiver permissible statistics slightly less revealing two experts estimated prosecutions crimes triable jury settled guilty plea remainder tried one state maryland always provided waiver rate trial appears years reached recognizes force statistics stating assert however every criminal trial particular trial held judge alone unfair defendant may never fairly treated judge jury ante indeed even persuaded trial jury fundamental right criminal cases see nothing fundamental rule yet formulated places prosecution appellant simple battery within category jury crimes rather petty crimes trial jury ancient true almost equally ancient however discovery king loving subjects much travailed otherwise encumbered coming keeping said six weeks sessions costs charges unquietness use summary procedures long widespread british procedure exempted requirement jury trial iolations laws relating liquor trade manufacture labor smuggling traffic highway sabbath cheats gambling swearing small thefts assaults offenses property servants seamen vagabondage least hundred emphasis added colonies cleaner slate although practices varied greatly place place conditions massachusetts crimes punishable whipping strokes stocks three hours ducking stool fines imprisonment triable magistrates decision magistrate theory appealed jury stiff recognizance made exercise right quite rare new york somewhat harsher example anyone adjudged two magistrates idle disorderly vagrant person might transported whence came reappearance whipped constable constable lashes anyone committing criminal offense degree grand larceny unable furnish bail within hours summarily tried three justices local variations examples multiplied point many offenses communities one time another regarded triable without jury serious carry serious penalties one involved point rather today people thought exact location line mattered much obvious reason jury trial requisite fundamental fairness charge robbery requisite fairness defendant actions charged assault petty theft reason historic exception relatively minor crimes obvious one burden jury trial thought outweigh marginal advantages exactly allowed make continuing adjustments based state criminal dockets difficulty summoning jurors simply escapes sum wide range views desirability trial jury ways make effective used also considerable variation state state local conditions size criminal caseload ease difficulty summoning jurors trial conditions bearing fairness us therefore almost perfect example situation celebrated dictum justice brandeis invoked said one happy incidents federal system single courageous state may citizens choose serve laboratory new state ice liebmann dissenting opinion affirm judgment louisiana see opinions mapp ohio dissenting ker california concurring malloy hogan dissenting pointer texas concurring griffin california concurring klopfer north carolina concurring barron baltimore pet held first eight amendments restricted federal action locus classicus viewpoint federalist madison bill rights opposed hamilton proponents strong central government see federalist see generally rossiter grand convention barron baltimore supra chief justice marshall said amendments demanded security apprehended encroachments general government local governments jaffe brandeis activist search intermediate premises harv rev see adamson california dissenting opinion black vermont dissenting opinion harlan black due process law constitutional faith addition opinions cited supra see opinions poe ullman dissenting griswold connecticut concurring fairman fourteenth amendment incorporate bill rights original understanding stan rev professor fairman content rest upon overwhelming fact great words four clauses first section fourteenth amendment exceedingly peculiar way say rights heretofore guaranteed federal intrusion first eight amendments henceforth guaranteed state intrusion well therefore sifted mountain material comprising debates committee reports relating amendment houses congress state legislatures passed upon found immense corpus comments purpose effects proposed amendment virtues defects almost evidence whatever incorporation first eight amendments much mentioned two members congress one effectively demonstrated understand barron baltimore pet therefore understand question incorporation understood colleagues one state legislative committee report rejected legislature whole found fourteenth amendment superfluous duplicated bill rights committee obviously understand barron baltimore either professor fairman find hundreds pages legislative discussion prior passage amendment even suggests incorporation negative evidence judicial history amendment added example proved possible whose members lived reconstruction reiterate doctrine barron baltimore bill rights apply without much questioning whether fourteenth amendment effect continued validity principle walker sauvinet see generally morrison fourteenth amendment incorporate bill rights judicial interpretation stan rev davidson new orleans holden hardy hurtado california missouri lewis gideon wainwright right counsel found fourteenth amendment held essential fair trial see klopfer north carolina pointer texas irvin dowd illogical way dealing fourteenth amendment problem employed malloy hogan held due process clause guaranteed protection clause fifth amendment state action disagreed time way question framed result reached see dissenting opinion consider bound holding malloy respect see concurring opinion griffin california think malloy held consider bound holding every question arising due process clause shall settled arbitrary decision whether clause bill rights held irvin dowd compare dennis rassmussen andres respect number unanimity requirements suggests present problem decisions interpreting sixth amendment always subject reconsideration ante examples illustrate major danger incorporation approach provisions bill rights may watered needless pursuit uniformity cf concurring opinion ker california justice white alluded problem dissenting opinion malloy hogan supra criminal justice act callan wilson district columbia clawans district columbia colts precise issue maxwell whether jury eight rather jurors employed criminal prosecutions utah held permissible fourteenth amendment require provide trial jury seems think dictum technical matter however statement critical chain reasoning result fact reached become dictum simply later imagine totally different way deciding case see jordan massachusetts citing maxwell proposition requirement due process deprive state power dispense jury trial altogether irvin dowd supra fay new york palko connecticut supra snyder massachusetts brown new jersey missouri lewis supra deady trial jury rev still days progress experiment everything trial bar human reason conceit quite fashion speak jury trial something outlived usefulness intelligent people often sneer awkward useless impediment speedy correct administration justice convenient escape powerful popular rogues considering kind jury trials sometimes must admitted criticism without foundation see generally kalven memorandum regarding jury system printed hearings recording jury deliberations subcommittee investigate administration internal security act senate committee judiciary particular debate going long time least since arguments advanced pro con changed much interim contrary first impression seem particular period debate grows hotter colder always hot debate see snyder massachusetts supra cardozo far fourteenth amendment concerned presence defendant trial condition due process extent fair hearing thwarted absence extent point made among others tocqueville democracy america reeve argument developed curtis trial judge jury vand rev example juries relieve judge embarrassment making necessary exceptions true violating oaths think better tempting judge violate oath office see generally williams proof guilt forsyth history trial jury see stephen general view criminal law england see sunderland inefficiency american jury rev times changed government absolute control people judges appointed selected agents people elected selected people directly need jury political weapon defense steadily diminishing hundred years jury must find justification continuance see sunderland supra life simple jury system young steadily growing complexity society social practices facts enter legal controversies become much complex compare green jury injustice jurid rev cf lummus civil juries law delay rev see mcwhorter abolish jury rev statistics point difficult accumulate reason way measure jury performance compare result reached jury result judge reached case comparisons many values impossible obtain statistical comparison accuracy manner see generally kalven zeisel american jury passim boston practical remedies existing defects administration justice rev one important personal property interest outside justice us willingly commit first twelve men come along street mcwhorter supra jury system consumes time public expense gallery playing sensational theatrical exhibitions jury whereby public interest dignity law swallowed morbid partisan emotional personal interest parties immediately concerned williams supra example federal courts right defendant waive jury doubt recently established patton settled new york people carroll misc aff kalven zeisel supra see oppenheim waiver trial jury criminal cases rev hen frankfurter corcoran petty federal offenses constitutional guaranty trial jury harv rev source authors information burn justice peace frankfurter corcoran supra see ibid frankfurter corcoran supra refer vagrancy act frankfurter corcoran supra example taken day petty magistrates courts connecticut crim cited kalven zeisel supra point huge proportion criminal charges jury trial available america puttkammer administration criminal law increased judicious action weary prosecutors