williams florida argued march decided june florida rule criminal procedure requiring defendant intends rely alibi disclose prosecution names alibi witnesses prosecution must turn disclose defense names witnesses rebut alibi failure comply result exclusion alibi evidence trial except defendant testimony case state exclusion rebuttal evidence petitioner charged robbery complied rule failing relieved requirements pretrial motion impanel jury instead jury florida law provides noncapital cases denied trial state used deposition petitioner alibi witness impeach witness petitioner convicted appellate affirmed petitioner claims fifth amendment rights violated ground rule required furnish state information useful convicting sixth amendment right violated ground jury deprived right trial jury sixth amendment held florida rule violate fifth amendment made applicable fourteenth amendment pp discovery rule designed enhance search truth criminal trials giving accused state opportunity investigate certain facts crucial issue guilt innocence comports requirements due process fair trial pp rule accelerated timing petitioner disclosure alibi defense thus violate privilege compelled pp constitutional guarantee trial jury require jury membership fixed historically accidental figure although accepted common law framers explicitly intend forever codify constitutional requirement feature essential sixth amendment purpose interposing defendant prosecution commonsense judgment peers pp richard kanner argued cause filed briefs petitioner jesse mccrary assistant attorney general florida argued cause respondent brief earl faircloth attorney general ronald sabo assistant attorney general jack greenberg michael meltsner filed brief virgil jenkins amicus curiae urging reversal justice white delivered opinion prior trial robbery state florida petitioner filed motion protective order seeking excused requirements rule florida rules criminal procedure rule requires defendant written demand prosecuting attorney give notice advance trial defendant intends claim alibi furnish prosecuting attorney information place claims names addresses alibi witnesses intends use motion petitioner openly declared intent claim alibi objected disclosure requirements ground rule compels defendant criminal case witness violation fifth fourteenth amendment rights motion denied petitioner also filed pretrial motion impanel jury instead jury provided florida law capital cases motion denied petitioner convicted charged sentenced life imprisonment district appeal affirmed rejecting petitioner claims fifth sixth amendment rights violated granted certiorari florida rule essence requirement defendant submit limited form pretrial discovery state whenever intends rely trial defense alibi exchange defendant disclosure witnesses proposes use establish defense state turn required notify defendant witnesses proposes offer rebuttal defense sides continuing duty promptly disclose names addresses additional witnesses bearing alibi become available threatened sanction failure comply exclusion trial defendant alibi evidence except testimony case state exclusion state evidence offered rebuttal alibi case following denial motion protective order petitioner complied alibi rule gave state name address one mary scotty scotty summoned office state attorney morning trial gave pretrial testimony trial scotty petitioner petitioner wife testified three scotty apartment time robbery two occasions scotty prosecuting attorney confronted earlier deposition given dates times respects correspond dates times given trial scotty adhered trial story insisting mistaken earlier testimony state also offered rebuttal testimony one officers investigating robbery claimed scotty asked directions afternoon question time claimed apartment petitioner wife need linger suggestion discovery permitted state petitioner case deprived due process fair trial florida law provides liberal discovery defendant state rule carefully hedged reciprocal duties requiring state disclosure defendant given ease alibi fabricated state interest protecting defense obvious legitimate reflecting interest provisions dating least existence substantial number adversary system trial hardly end yet poker game players enjoy absolute right always conceal cards played find ample room system least far due process concerned instant florida rule designed enhance search truth criminal trial insuring defendant state ample opportunity investigate certain facts crucial determination guilt innocence petitioner major contention compelled witness contrary commands fifth fourteenth amendments rule required give state name address scotty advance trial thus furnish state information useful convicting pretrial statement petitioner introduced trial armed scotty name address knowledge petitioner alibi witness state able take deposition advance trial find rebuttal testimony also requiring reveal elements defense claimed interfered right wait state presented case decide defend conclude however apparently every considered issue privilege violated requirement defendant give notice alibi defense disclose alibi witnesses defendant criminal trial frequently forced testify call witnesses effort reduce risk conviction presents witnesses must reveal identity submit may prove incriminating may furnish state leads incriminating rebuttal evidence defendant faces dilemma demanding choice complete silence presenting defense never thought invasion privilege compelled pressures generated state evidence may severe vitiate defendant choice present alibi defense witnesses prove even though attempted defense ends catastrophe defendant however testimonial incriminating alibi defense proves considered compelled within meaning fifth fourteenth amendments similar constraints operate defendant state requires pretrial notice alibi naming alibi witnesses nothing rule requires defendant rely alibi prevents abandoning defense matters left unfettered choice choice must made pressures bear pretrial decision nature induce call alibi witnesses trial force historical fact beyond state control strength state case built facts response kind pressure offering evidence testimony compelled transgressing fifth fourteenth amendments case us rule way affected petitioner crucial decision call alibi witnesses added legitimate pressures leading course action rule compelled petitioner accelerate timing disclosure forcing divulge earlier date information petitioner beginning planned divulge trial nothing fifth amendment privilege entitles defendant matter constitutional right await end state case announcing nature defense entitles await jury verdict state deciding whether take stand petitioner concedes absent rule constitution raise bar granting state continuance trial ground surprise soon alibi witness called problems continuance state permitted precisely prior trial take deposition witness find rebuttal evidence utilizing continuance permissible fifth fourteenth amendments surely result may accomplished pretrial discovery avoiding necessity disrupted trial decline hold privilege compulsory guarantees defendant right surprise state alibi defense ii duncan louisiana held fourteenth amendment guarantees right trial jury criminal cases tried federal come within sixth amendment guarantee petitioner trial robbery july clearly falls within scope holding see baldwin new york ante destefano woods question case whether constitutional guarantee trial jury necessarily requires trial exactly persons rather lesser number case six hold panel necessary ingredient trial jury respondent refusal impanel six members provided florida law violate petitioner sixth amendment rights applied fourteenth occasion duncan louisiana supra review briefly history development trial jury criminal cases history revealed long tradition attaching great importance concept relying body one peers determine guilt innocence safeguard arbitrary law enforcement history however affords little insight considerations gradually led size body generally fixed suggested number fixed upon simply number presentment jury hundred petit jury developed less circular fanciful reasons number given brought forward number fixed rest little mystical superstitious insights significance lord coke explanation number twelve much respected holy writ apostles stones tribes typical short sometime century size jury common law came fixed generally particular feature jury system appears historical accident unrelated great purposes gave rise jury first place question us whether accidental feature jury immutably codified constitution earlier decisions assumed affirmative answer question leading case construing sixth amendment thompson utah defendant tried convicted jury crime committed territory utah new trial granted time utah admitted state defendant new trial proceeded utah constitution providing jury eight members reversed resulting conviction holding utah constitutional provision ex post facto law applied defendant reaching conclusion announced sixth amendment applicable defendant trial utah territory jury referred amendment jury constituted common law twelve persons neither less arguably unnecessary result announcement supported simply referring magna carta quoting passages treatises noted already seen common law jury indeed consist noticeably absent discussion essential step argument namely every feature jury existed common law whether incidental essential institution necessarily included constitution wherever document referred jury subsequent decisions reaffirmed announcement thompson often dictum usually relying discussion issue solely fact jury consisted see patton rassmussen maxwell dow intent framers often elusive quarry relevant constitutional history casts considerable doubt easy assumption past decisions given feature existed jury common law necessarily preserved constitution provisions jury trial first placed constitution article iii provision trial crimes shall jury trial shall held state said crimes shall committed scanty history provision records constitutional convention sheds little light either way intended correlation article iii jury features jury common law indeed pending adoption constitution fears expressed article iii provision failed preserve right tried jury vicinage concern well concern preserve right jury civil well criminal cases furnished part impetus introducing amendments constitution ultimately resulted jury trial provisions sixth seventh amendments introduced james madison house amendment relating jury trial criminal cases provided trial crimes shall impartial jury freeholders vicinage requisite unanimity conviction right challenge accustomed requisites inflexible opposing definition locality juries vicinage contend either vague strict term vague depending limits fixed pleasure law strict limited county proposed insert word juries accustomed requisites leaving definition construed according judgment professional men even obtained senate suppose also provision vicinage judiciary bill sufficiently quiet fears called amendment point right speedy public trial impartial jury state district wherein crime shall committed district shall previously ascertained law three significant features may observed sketch background constitution jury trial provisions first even though vicinage requirement much feature jury requirement mere reference trial jury article iii interpreted include feature indeed subsequent debates amendments indicate disagreement arose whether feature included sense resulting compromise described second provisions explicitly tied jury concept accustomed requisites time eliminated action concededly open explanation accustomed requisites thought already included concept jury explanation plausible contrary one deletion substantive effect indeed given clear expectation substantive change effected inclusion deletion explicit vicinage requirement latter explanation anything plausible finally contemporary legislative constitutional provisions indicate congress wanted leave doubt incorporating existing features jury system knew use express language effect thus judiciary bill signed president day house senate finally agreed form amendments submitted provided certain cases narrower vicinage requirements house wanted include amendments seventh amendment providing jury trial civil cases explicitly added fact tried jury shall otherwise according rules common law pretend able divine precisely word jury imported framers first congress may well usual expectation jury consist hence likely conclusion drawn simply little thought actually given specific question face today absolutely indication intent framers explicit decision equate constitutional characteristics jury nothing history suggests violence letter constitution turning purely historical considerations determine features jury system existed common law preserved constitution relevant inquiry see must function particular feature performs relation purposes jury trial measured standard requirement regarded indispensable component sixth amendment purpose jury trial noted duncan prevent oppression government providing accused right tried jury peers gave inestimable safeguard corrupt overzealous prosecutor compliant biased eccentric judge duncan louisiana supra given purpose essential feature jury obviously lies interposition accused accuser commonsense judgment group laymen community participation shared responsibility results group determination guilt innocence performance role function particular number body makes jury sure number probably large enough promote group deliberation free outside attempts intimidation provide fair possibility obtaining representative community find little reason think goals meaningful sense less likely achieved jury numbers six numbers particularly requirement unanimity retained certainly reliability jury factfinder hardly seems likely function size might suggested jury gives defendant greater advantage since chances finding juror insist acquittal thus prevent conviction advantage might easily belong state also needs one juror twelve insisting guilt prevent acquittal experiments occurred usually civil area indicate discernible difference results reached two juries short neither currently available evidence theory suggests jury necessarily advantageous defendant jury composed fewer members similarly theory number viewpoints represented randomly selected jury increase size jury increases practice difference jury terms community represented seems likely negligible even jury insure representation every distinct voice community particularly given use peremptory challenge long arbitrary exclusions particular class jury rolls forbidden see carter jury commission concern significantly diminished jury decreased size six seems unrealistic one conclude short began fact jury common law composed precisely historical accident unnecessary effect purposes jury system wholly without significance except mystics duncan louisiana supra harlan dissenting read sixth amendment forever codifying feature incidental real purpose amendment ascribe blind formalism framers require considerably evidence able discover history language constitution reasoning past decisions mean intimate legislatures never good reasons concluding jury preferable smaller jury conclusions reflected provisions federal system sense unwise legislatures may well views relative value larger smaller juries may conclude wholly apart jury primary function desirable spread collective responsibility determination guilt among larger group capital cases example appears state provides less jurors fact suggests implicit recognition value larger body means legitimating society decision impose death penalty holding leave considerations congress unrestrained interpretation sixth amendment forever dictate precise number constitute jury consistent holding conclude petitioner sixth amendment rights applied fourteenth amendment violated florida decision provide rather jury judgment florida district appeal affirmed appendix opinion upon written demand prosecuting attorney specifying particularly known prosecuting attorney place date time commission crime charged defendant criminal case intends offer evidence alibi defense shall less ten days trial time may direct file serve upon prosecuting attorney notice writing intention claim alibi notice shall contain specific information place defendant claims time alleged offense particularly known defendant attorney names addresses witnesses proposes establish alibi less five days receipt defendant witness list times may direct prosecuting attorney shall file serve upon defendant names addresses particularly known prosecuting attorney witnesses state proposes offer rebuttal discredit defendant alibi trial cause defendant prosecuting attorney shall continuing duty promptly disclose names addresses additional witnesses come attention either party subsequent filing respective witness lists provided rule defendant fails file serve copy notice herein required may exclude evidence offered defendant purpose proving alibi except testimony defendant notice given defendant may exclude testimony witness offered defendant purpose proving alibi name address witness particularly known defendant attorney stated notice prosecuting attorney fails file serve copy defendant list witnesses herein provided may exclude evidence offered state rebuttal defendant alibi evidence notice given prosecuting attorney may exclude testimony witness offered prosecuting attorney purpose rebutting defense alibi name address witness particularly known prosecuting attorney stated notice good cause shown may waive requirements rule footnotes see app stat twelve men shall constitute jury try capital cases six men shall constitute jury try criminal cases see app florida earlier held without jurisdiction entertain petitioner direct appeal trial see florida law district appeal became highest decision see fla art app rule ansin thurston good cause shown may waive requirements rule rule crim proc see app see rule crim proc discovery provisions invoked petitioner instant case see app see epstein advance notice alibi crim addition florida least appear requirements one sort another see rule crim proc ind ann stat iowa code stat ann comp laws stat rule code crim proc ohio rev code ann okla tit rule crim proc comp laws utah code ann stat tit stat see generally wigmore evidence ed course decide provisions necessarily valid respects conclusion must await specific context inquiry example whether defendant enjoys reciprocal discovery state see brennan criminal prosecution sporting event quest truth state stump iowa cert denied state baldwin cert denied people rakiec app div commonwealth vecchiolli super see jones superior cal louisell criminal discovery roger traynor confronts dilemma rev traynor ground lost found criminal discovery rev comment privilege barrier criminal discovery rev harv rev emphasize case involve question validity threatened sanction petitioner chosen comply rule whether extent state enforce discovery rules defendant fails comply excluding relevant probative evidence question raising sixth amendment issues occasion explore cf brief amicus curiae enough penalty exacted petitioner apparent suggestion contrary simply borne facts case mere requirement petitioner disclose advance intent rely alibi way fixed defense point time suggestion state referring petitioner proposed alibi opening closing statements might compelled follow defense order avoid unfavorable inference hypothetical totally without support record first reference alibi came petitioner attorney opening remarks state response come defense finished direct examination scotty petitioner appears raise issue possible defect requirements general without seriously suggesting choice defense trial case different prior compliance rule indeed motion protective order petitioner freely disclosed intent rely alibi objection requirement disclose nature alibi name witness facts simply confronted question whether defendant compelled advance trial select defense longer deviate mean suggest though procedure must necessarily raise serious constitutional problems see state ex rel simos burke discussing right defendant defer moment testifying election alternative inconsistent alibis left concept trial search truth far behind see reply brief petitioner might also argued testimonial disclosures protected fifth amendment include statements relating historical facts crime statements relating solely defendant proposes trial see duncan louisiana tracing development jury time jury performed different inquisitory function james thayer notes following early times inquisition fixed number frankish empire told great variety numbers also among normans varied much twelve even place prevailing grundzahl documents show sorts numbers seems recognitions henry ii established twelve usual number even number uniform jury development harv rev citations omitted similarly professor scott writes beginning thirteenth century twelve indeed usual invariable number middle fourteenth century requirement twelve probably become definitely fixed indeed number finally came regarded something like superstitious reverence scott fundamentals procedure actions law footnotes omitted holdsworth history english law wells origin petty jury rev latter author traces development petit jury following four stages first stage saw development presentment jury made generally persons hundred whose function simply charge accused crime test guilt innocence means trial ordeal battle wager law second stage presentment jury began asked verdict guilt innocence person accused hence began function petit grand jury third stage combination juries formed render verdict order broaden base representation beyond local hundred borough include county juries formed adding one presentment juries one hundreds well certain officials coroners knights combination juries numbered jurors number became embarrassingly large unwieldy sense personal responsibility juror danger lost obvious fourth step creation special jury formed selecting one jurors several presentment juries hundreds number twelve reached probably number presentment jury hundred therefore presentment jury represented voice hundred making accusation jury country number represented whole county deciding whether accused guilty neither authors hazards guess presentment jury numbered coke institutes laws england amer ed thus john proffatt treatise jury trials notes reasons number petit jury quaintly given duncombe trials per pais follows number less esteemed law holy writ twelve apostles twelve thrones must try us eternal state good reason hath law appoint number twelve try us temporal tribes israel twelve patriarchs twelve solomon officers twelve trial jury quoting duncombe trials per pais ed twelve common number throughout europe favorite number every branch polity jurisprudence gothic nations singular unanimity selection number twelve compose certain judicial bodies remarkable fact history many nations many sought account general custom based religious grounds one ancient kings wales morgan accredited adoption trial jury calls apostolic law said christ twelve apostles finally judge world human tribunals composed king twelve wise men proffatt trial jury citations omitted connection interesting note following oath required early jury hear ye justices speak truth ye shall ask part king faithfully best endeavour help god holy apostles forsyth trial jury see supra devlin trial jury heller sixth amendment willoughby principles judicial administration tamm civil jury proposed constitutional amendment geo wiehl six man jury gonzaga rev see thayer supra white origin development trial jury rev time crime first trial statutes territory utah wholly apart sixth amendment ensured thompson jury see found ex post facto question easy resolve assumed utah subsequent constitutional provision deprived thompson right previously guaranteed constitution possibility result might reached solely basis rights formerly accorded thompson territorial statute hinted explicitly considered whether magna carta reference judgment one peers reference jury fact historians dispute see pollock maitland history english law time edward ed frankfurter corcoran petty federal offenses constitutional guaranty trial jury harv rev criticizing thompson utah reliance document long scholars exposed ancient error seems clear great charter authority fixing number jury see mckechnie magna carta scott trial jury reform civil procedure harv rev text indicates question whether jury traced whether particular feature must accepted sine qua non jury trial guaranteed constitution see heller supra thompson opinion also reasoned jury reduced eight nothing prevent similarly reduced four two even zero thus dispensing jury altogether see bit logic resurrected today justice harlan concurring opinion post suffers somewhat soon one recognizes get slippery slope reaches bottom occasion case determine minimum number still constitute jury doubt six minimum ruling sixth amendment refers jury essential holding rassmussen held invalid conviction jury alaska ruling accepted government concession without discussion citation major focus case question whether sixth amendment applicable territory question see similarly cases interpreting jury trial provisions seventh amendment generally leap fact jury possessed certain feature common law conclusion feature must preserved amendment simple reference trial jury capital traction hof american publishing fisher much discussion case may thought bear equally interpretation seventh amendment jury trial provisions emphasize question us decide whether example additional references common law occur seventh amendment might support different interpretation see infra patton opinion furnishes interesting illustration willingness earlier assertions nature jury trial almost every respect except requirement patton reaffirmed requirement simple citation thompson utah time discarding dictum equally dogmatic assertion thompson requirement waived see art iii cl frankfurter corcoran supra attention given jury trial provisions involved questions whether right also extended civil cases see henderson background seventh amendment harv rev whether wording embrace trial crimes trial criminal offenses see frankfurter corcoran supra provide trial crimes committed state see farrand records federal convention see also indexing references art iii cl farrand records see heller supra warren new light history federal judiciary act harv rev technically vicinage means neighborhood vicinage jury meant jury neighborhood medieval england jury county see blackstone commentaries article iii provided venue impose explicit requirement associated concept vicinage see maryland brown supp virginia convention madison conceded omission deliberate defended follows objected yesterday provision jury vicinage done safety opposed might happen trial impracticable county suppose rebellion whole district impossible get jury trial jury held sacred england america deviations england yet greater deviations happened since established independence taken place long time though left legislative discretion misfortune case trial departed yet cases necessary must therefore left discretion legislature modify according circumstances complete satisfactory answer farrand records federal convention annals cong senate journal indicates every clause house version proposed amendment deleted except clause relating grand jury indictment senate journal subsequent motion restore words providing trial impartial jury vicinage requisite unanimity conviction right challenge accustomed requisites failed adoption senate journal principal source information proceedings senate first congress journal senator maclay pennsylvania unfortunately ill senate debate amendments see journal william maclay heller supra madison writes senate sent back plan amendments alterations strike opinion salutary articles many juries even criminal cases taken state large others districts considerable extent county alone hence dislike restraint respect vicinage produced negative clause several others similar fate letter james madison edmund pendleton letters writings james madison letter james madison edmund pendleton see generally heller supra warren supra see heller supra proffatt supra curtis history origin formation adoption constitution act provided cases punishable death trial shall county offence committed done without great inconvenience twelve petit jurors least shall summoned thence act stat similarly first continental congress resolved october respective colonies entitled common law england especially great inestimable privilege tried peers vicinage according course law journals continental congress ford ed emphasis added northwest ordinance declared inhabitants territory always entitled benefits writs habeas corpus trial jury judicial proceedings according course common law ordinance art ii xxxviii emphasis added see capital traction hof concluding sources explicit reference common law seventh amendment referred rules common law england rules modified local state practice one scholar however investigating reception english common law early american colonies notes process simple legal theory lead us assume general legal conceptions conditioned terminology derived common law early colonists far applying technical system often ignored denied subsidiary force consciously departed many essential principles reinsch english common law early american colonies select essays legal history adopted constitutions time philadelphia convention appear part either explicitly provided jury consist see const thorpe federal state constitutions subsequently interpreted jury trial provisions include requirement least one instance involving conviction eight jurors subsequent south carolina decision interpreting provision trial jury refused declare requirement essential feature institution immune change legislature see state starling rich errors conviction affirmed without deciding question since state time adopted constitution specifically empowering legislature determine number jurors certain inferior courts south carolina remains today one apparently five including florida provide juries less felony cases imprisonment one year may imposed see la art la crim proc code art supp art art code ann tex art art tex code crim arts tex pen code art utah art utah code ann addition appears least nine presently provide less juries trials certain offenses carrying maximum penalties one year imprisonment see brief appellee baldwin new york ante collecting statutory provisions see also mass noting interpreted right trial jury permit trial less certain cases poll state practice see justice harlan concurring opinion post app intimate view whether requirement unanimity indispensable element sixth amendment jury trial much historical discussion applies well unanimity requirement former unlike latter may well serve important role jury function example device insuring government bear heavier burden proof see hibdon cir tamm supra cf comment waiver jury unanimity doubts reasonable doubt chi rev see generally american bar association project standards criminal justice trial jury approved draft true course hung jury might thought result minimal advantage defendant remains unconvicted enjoys prospect prosecution eventually dropped subsequent juries also hang thus jury undoubtedly favorable defendants jury comparison six odds continually hanging jury seem slight numerical difference number needed convict seems unlikely inure perceptibly advantage either side see wiehl supra tamm supra cronin juries district courts boston juries tried massachusetts district jud soc see also new jersey experiments jury bull section jud admin aba may phillips jury six cases studies operative factors contributing small group deliberation decisionmaking suggest jurors minority first ballot likely influenced proportional size majority aligned see kalven zeisel american jury hawkins interaction coalition realignments groups study experimental jury deliberations unpublished thesis file library congress cf asch effects group pressure upon modification distortion judgments readings social psychology swanson newcomb hartley et see generally note instructing deadlocked juries yale authorities cited thus defendant needs initially persuade four jurors state met burden proof order escape ultimate conviction jury arguably escapes initially persuading half number jury random reduction within limits absolute number jury affect outcome see also joiner civil justice jury concluding deliberative process either jury see fed rule crim proc uries shall chief justice burger concurring join fully justice white opinion see added benefit rule serve important functions way disposing cases without trial appropriate circumstances matter considerable importance courts prosecution offices legal aid defender agencies vastly overworked prosecutor upon receiving notice course investigate prospective alibi witnesses finds reliable unimpeachable doubtless entire case process likely lead dismissal charges turn might obliged determine false charges instituted breakdown occurred examination evidence led charge hand inquiry claimed alibi defense may reveal contrived fabricated witnesses accordingly subject impeachment attack situation defense counsel obliged case found client proposed use false testimony either seek withdraw case try persuade client enter plea guilty possibly plea discussions lead disposition lesser charge either case ends justice served processes expedited likely consequences enlarged truly reciprocal pretrial disclosure evidence move away sporting contest idea criminal justice justice black justice douglas joins concurring part dissenting part today holds state consistently sixth amendment constitution try defendant criminal case jury six members agree decision substantially reasons given brother harlan however charges decision point evidence incorporation doctrine specific provisions bill rights made fully applicable standards applied federal courts somehow result dilution protections required provisions asserts desire relieve rigorous requirements bill rights bound cause modification prior decisions interpreting provisions applied federal courts order simultaneously apply provisions equally state federal governments avoid undue restrictions assertion finds support today decision decision emphatically rejected notion fourteenth amendment applies subjective version individual guarantees bill rights malloy hogan today decision way attributable desire dilute sixth amendment order easily apply follows solely necessary consequence duty prior decisions reach correct constitutional meaning case broad implications early cases indicating body members satisfy sixth amendment requirement arose situations issue squarely presented based opinion improper interpretation amendment question presented arisen federal decision duncan louisiana still view reached result announced today opinion danger diluting bill rights protections lies incorporation doctrine shock conscience test brother harlan rely instead test depends language constitution solely views majority fair decent also holds state require defendant criminal case disclose advance trial nature alibi defense give names addresses witnesses call support defense requirement majority says violate fifth amendment prohibition compelling criminal defendant witness although case involves provision clear decision means state require defendant disclose advance trial information might possibly use defend trial decision view radical dangerous departure historical constitutionally guaranteed right defendant criminal case remain completely silent requiring state prove case without assistance kind defendant core majority decision assumption compelling defendant give notice alibi defense trial different requiring defendant state produced evidence trial plead alibi jury retires consider case assumption clearly revealed statement pressures bear defendant decision nature induce call alibi witnesses trial force historical fact beyond state control strength state case built facts ante statement plainly simply wrong matter fact law holding based statement complete misunderstanding protections provided criminal defendants fifth amendment provisions bill rights defendant required indicate whether might plead alibi advance trial faces vastly different decision faced one wait state presented case making mind trial defendant knows state case might trial thing strength state case range possible cases time certainty kind case state ultimately able prove trial therefore appraisal desirability pleading alibi beset guesswork gambling far greater accompanying decision trial lawyer actually tried case knows regardless amount pretrial preparation case looks far different actually tried thought florida system interpreted majority plays upon inherent uncertainty predicting possible strength state case order effectively coerce defendants disclosing alibi defense may never actually used florida rule defendant might plead alibi must least days date trial tell prosecuting attorney might claim alibi else defendant faces real threat may completely barred presenting witnesses support alibi according however gives required notice later changes mind othing rule requires rely alibi prevents abandoning defense matters left unfettered choice ante thus situations defendants possible thought pleading alibi effect compelled disclose intentions order preserve possibility later raising defense trial necessarily defendants lawyers willing risk loss possibility disclosing alibi clearly pressures defendants plead alibi created procedure quite different pressures operating trial fact significantly greater contrary majority assertion pretrial decision analyzed simply matter timing influenced factors operating trial apparently also assumes defendant given required notice abandon alibi without hurting assumption implicit necessary majority argument pretrial decision different trial however lightly assume pretrial notice adverse effects defendant later decides forgo defense necessarily defendant given prosecutor names persons may knowledge defendant activities necessarily prosecutor every incentive question persons fully may discover new leads evidence undoubtedly situations state seek use information information probably never obtained defendant coerced cooperation unnecessary however engage intellectual gymnastics concerning practical effects procedure fifth amendment clearly provides person shall compelled criminal case witness words given plain obvious meaning provision opinion criminal defendant required give evidence testimony assistance state aid convicting crime cf schmerber california black dissenting florida rule opinion patent violation constitutional provision requires defendant disclose information state state use information destroy seems least slightly incredible suggest procedure may beneficial effects defendants need encourage defendants take actions think help fear conviction substantial cost inconvenience resulting criminal prosecutions sufficient incentives make defendants want help defendant thinks making disclosure alibi trial best interests obviously time state needs compulsion provided procedure defendant decided disclosure likely hurt case answer argument suggest fifth amendment interpreted give defendant unfair element surprise turning trial poker game sporting contest tactical advantage defendant inherent type trial required bill rights framers well aware awesome investigative prosecutorial powers government order limit powers spelled detail constitution procedure followed criminal trials defendant said entitled notice charges trial jury right counsel defense right confront witnesses right call witnesses behalf right witness rights designed shield defendant state power none designed make convictions easier taken together clearly indicate system entire burden proving criminal activity rests state defendant constitution need anything defend certainly required help convict rather absolute unqualified right compel state investigate case find witnesses prove facts convince jury resources throughout process defendant fundamental right remain silent effect challenging state every point prove bill rights thus sets type constitutionally required system state must follow order convict individuals crime system requires state must bear entire burden without assistance defendant requirement clearly indicated fifth amendment equally apparent specific provisions bill rights relating criminal prosecutions considered together question concerning constitutionality aspect criminal procedure arises must consider provisions interpret together fifth amendment prohibition compelling defendant witness isolated distinct provision part system constitutionally required procedures true meaning seen light provisions strict construction words constitution mean look one phrase clause sentence constitution expect find right answer provision clear definite meaning various provisions considered together may equally clear definite meaning sensitive attention specific words context used history surrounding adoption provisions true meaning constitution discerned constitutional right remain absolutely silent avoided superficially attractive analogies compulsion inherent trial may lead defendant put evidence defense obviously constitution contemplates defendant compelled stand trial obviously times trial process require defendant something order try avoid conviction nothing constitution permits state add natural consequences trial compel defendant advance trial participate way state attempt condemn criminal trial part search truth also system designed protect freedom insuring one criminally punished unless state first succeeded admittedly difficult task convincing jury defendant guilty task made difficult bill rights fifth amendment may one difficult barriers surmount framers decided benefits derived kind trial required bill rights well worth loss efficiency resulted decision constitutes final word subject absent constitutional amendment decision set aside today ii surface case involves provision effect decision opens way profound change one important traditional safeguards criminal defendant rationale today decision way limited alibi defenses type classification evidence theory advanced goes least far permit state obtain threat sanction complete disclosure defendant advance trial evidence testimony tactics plans use trial case justification rule affects timing disclosure substantive decision inevitability clearly revealed citation jones superior cal ante case theory today adopts entirety defendant rape case disclosed rely part defense impotency prosecutor successfully obtained order compelling defendant reveal names addresses doctors consulted medical reports examinations relating claimed incapacity order upheld highest california rule statute support decision california sense fairness justice judicial efficiency majority found barrier judicial creation pretrial discovery state defendant least barrier raised constitutional prohibition compelling defendant witness dangerous implications jones rationale adopted today however limited disclosure evidence defendant already decided use trial state grove washington relying jones held defendant murder trial compelled produce letter written wife alleged crime even though thought using evidence behalf cases sufficient evidence process rationale today decision used transform radically system criminal justice process requiring defendant assist state convicting punished failing hint state brief case well fear opinion suggestion test constitutionality test fairness decency short views best occasionally test emerges disguise intellectually satisfying distinction analogy designed cover decision based wisdom proposed procedure rather conformity commands constitution course view involved case decision one step away written constitution radical departure system criminal justice prevailed country compelling defendant criminal case witness way including use system pretrial discovery approved today unknown english law except unlamented proceedings star chamber courts type proceedings fifth amendment designed prevent practically first years nation history state considered adopting procedures compelling criminal defendant help convict although history indicate ancestors less intelligent solicitous fair efficient system criminal justice history indicate persons well familiar dangers arbitrary oppressive use criminal process determined limit dangers protection every inhabitant country well aware individual might day subjected criminal prosecution order protect freedom us restricted government ability punish imprison us yet spite history oppression produced bill rights strong reluctance governments compel criminal defendant assist conviction today reaches embrace sanctify first opportunity dangerous departure constitution traditional safeguards afforded persons accused crime accept result must express emphatic disagreement dissent see cases cited winship black dissenting frequently stated opinion fourteenth amendment part adopted order make provisions bill rights fully applicable see adamson california dissenting opinion held almost provisions apply well federal government including fifth amendment provision involved case see malloy hogan cases cited winship black dissenting called upon consider meaning particular provision bill rights whether case arising state federal one necessary look specific language provision intent framers bill rights adopted approach necessary framers intended bill rights apply proposed application provisions fourteenth amendment requires original intent governing consideration state well federal cases justice marshall dissenting part join part opinion however since believe fourteenth amendment guaranteed williams jury pass upon question guilt innocence sent prison rest life dissent affirmance conviction adhere holding duncan louisiana ecause trial jury criminal cases fundamental american scheme justice fourteenth amendment guarantees right jury trial criminal cases tried federal come within sixth amendment guarantee agree trial jury guaranteed state defendants fourteenth amendment federal defendants sixth decided particular bill rights guarantee fundamental american scheme justice constitutional standards apply state federal governments benton maryland time adhere decision thompson utah jury guaranteed sixth amendment consists twelve persons neither less see made convincing case sixth amendment read differently thompson even matter us de novo much less unbroken line precedent going back years overruled arguments made justice harlan part ib opinion persuade thompson right decided still sound doctrine equally convinced requirement applied justice harlan dissenting ante concurring result duncan louisiana held dissent joined justice stewart state criminal defendant entitled jury trial case brought federal require jury sixth amendment today concludes baldwin new york new york constitutionally provide misdemeanors carrying sentences one year shall tried new york city without jury time holds williams florida florida statute satisfies sixth amendment carried duncan holding necessary consequence decision juries constitutionally required federal criminal trials either historical argument undertakes justify view sixth amendment require juries opinion much thin mask true thrust decision decision evinces think recognition incorporationist view due process clause fourteenth amendment underlay duncan carried forward baldwin must tempered allow elbow room ordering criminal systems much agree accomplish diluting constitutional protections within federal system something possibly subscribe tempering rigor duncan done forthrightly facing fact least area incorporation doctrine fit well federal structure token duncan wrongly decided sustain florida new york statutes constitutional premises discussed dissenting opinion duncan et seq taking course baldwin matter goes pulse sound constitutional adjudication consider constricted stare decisis accordingly dissent jury issue concur result given malloy hogan join part opinion relating florida alibi procedure predicate conclusions useful map circuitous route taken order reach results cases patently williams baldwin history jury trial practice state federal systems indiscriminately jumbled together opposed point departure taken language federal guarantee expressed historical precedent brings life consequence inverted approach interpreting sixth amendment results fortuitously baldwin sixth amendment rule reached correct approach given incorporationist philosophy duncan unhappily imposes one jurisdiction country seen fit otherwise williams results sixth amendment rule reached standing constitutional dialectic head extent prevailing opinion premises conclusions baldwin case federal precedent practice agree federal right jury trial attaches offense punishable much six months imprisonment think follows breadth language sixth amendment provides jury criminal prosecutions evidence historical practice regard believe contemporary usage little significance exceptions created language sixth amendment anchored history distinction petty serious offenses rooted common law looked ascertain metes bounds federal right guaranteed sixth amendment see district columbia clawans schick callan wilson since conventional immutable practice common law appears provide juries offenses punishable fines sentences hard labor six months prison see frankfurter corcoran petty federal offenses constitutional guaranty trial jury harv rev think appropriate draw line six months federal cases although reasons follow encumber requirement williams strangely rather bind hitherto undeviating unquestioned federal practice juries holds based poll state practice jury satisfies guarantee trial jury federal criminal system consequently carries constitutional renvoi respect consider today unthinkable suggest sixth amendment right trial jury satisfied jury six less left open opinion williams less unanimous verdict question also reserved today decision stripping livery history jury trial relies analysis arduous effort first liberates intent framers easy assumption past decisions given feature existed jury common law necessarily preserved constitution ante unburdened yoke history concludes policy protected jury guarantee require perpetuation form neither argument view acceptable reason disregarding history numerous pronouncements made easy assumption sixth amendment jury one composed individuals even assuming ambiguity intent framers common sense merely blessing framers explains frequent reminders interpretation constitution necessarily influenced fact provisions framed language english common law read light history smith alabama proposition put forward justice gray speaking wong kim ark called upon define term citizen used constitution constitution nowhere defines meaning words citizenship clause respects must interpreted light common law principles history familiarly known framers constitution history continues wellspring constitutional interpretation indeed history even invoked decisions townsend sain fay noia purported interpret constitutional provision habeas corpus according historic conception writ took note guarantee one rooted common law interpreted cf brown accordance precepts sound constitutional interpretation requires view fixing federal jury known common law course true history imprison broad guarantees constitution whose proper scope determined given instance blend historical understanding adaptation purpose contemporary circumstances cf katz estes texas concurring opinion olmstead brandeis dissenting lovett frankfurter concurring cardozo nature judicial process however circumstance giving term meaning necessarily envisioned adapt circumstances uncontemplated see opinion concurring result welsh right trial jury however enduring meaning apart historical form second aspect argument number historical accident even though one recurred without interruption since century see ante way essential purpose jury trial safeguard corrupt overzealous prosecutor complaint biased eccentric judge ante thus history suggests guide meaning rights whose form bears relation policy reflect context feature classical jury apparently regarded mere adornment second justification cutting umbilical cord ties form jury past see compelling reason maintaining guarantee form jurors essential six new york compelled virtue baldwin provide juries trial misdemeanors concludes three jurors adequate interposition accused accuser judgment group laymen constitute adequate community participation provide shared responsibility results group determination guilt innocence elaboration required provides standard vexes meaning right jury trial federal courts well state courts uncertainty doubted unanimous jury provides greater safeguard majority vote six uncertainty henceforth plague meaning trial jury sufficient reason hoisting anchor history circumvention history compounded cavalier disregard numerous pronouncements reflect understanding jury one members fixed expectations accordingly thus thompson utah unanimous answered affirmative question whether sixth amendment jury jury constituted common law twelve persons neither less appears duncan justice seen fit question holding one often reiterated see patton reaffirmed earlier pronouncements stated sixth amendment jury characterized three essential features jury consist twelve men neither less trial presence superintendence judge power instruct law advise respect facts verdict unanimous see also maxwell dow rassmussen andres unanimity justice frankfurter stated gore applying constitutional provision rooted history long course adjudication carries impressive authority principle stare decisis multifaceted solid foundation legal system yet care must taken use create unmovable structure provides stability predictability required ordering human affairs course time basis public faith judiciary source impersonal reasoned judgments moragne marine lines see also helvering hallock boys markets retail clerks hertz woodman burnet coronado oil gas brandeis dissenting woodenly applied however builds stockade precedent confines law rules promulgated sound origin unadaptable present circumstances precedent sacrosanct one hesitate vote overturn previous holdings old recent reconsider settled dicta principles announced prove either practically moragne marine lines supra boys markets retail clerks supra jurisprudentially desist dissenting opinion unworkable longer suited contemporary life katz concurring opinion see also welsh chimel california marchetti estes texas concurring opinion warden hayden swift wickham james separate opinion harlan indeed considerations move depart today framework duncan part disregard stare decisis circumstances apply necessity driven williams incorporation doctrine leads decline follow duncan surely principle stare decisis means anything law means precedent jettisoned rule yesterday remains viable creates injustice reasonably said less sound rule sponsored seek change let alone incapable demonstrated wrong decision williams however casts aside workability relevance substitutes uncertainty reason discern today decision discards numerous judicial pronouncements historical precedent sound constitutional interpretation look controlling disquietude tension jurisprudential consequences wrought incorporation duncan baldwin situation williams presents prospect invalidating common practice providing less jury trial misdemeanor cases ii decisions demonstrate difference due process approach considers particular case bottom see whether right alleged one implicit concept ordered liberty see palko connecticut selective incorporation abstract one whereby different verbal formulae achieve results internal logic selective incorporation doctrine respected committed interpreting faithfully meaning federal bill rights recognizing governmental diversity exists country backlash williams exposes malaise dilutes federal guarantee order reconcile logic incorporation application federal right reality federalism one doubt congress tried undermine right trial jury duncan came books history today recited barred action expect repeat performances called upon give definition meaning federal guarantees incorporated ker california noted opinion concurring result rule incorporation unwise differing law enforcement problems put constitutional strait jacket prepared relax federal standards order avoid unduly fettering derogation law enforcement standards federal system last term chimel california supra expressed misgivings incorporation neutralize potency guarantees federal courts order accommodate diversity federal system reiterate said dissent duncan either history sense supports using fourteenth amendment put constitutional straitjacket respect development administration criminal civil law since witness first major attempt wriggle free straitjacket appropriate think step back view perspective far incorporation doctrine taken us put spotlight constitutional revolution inevitably become obscured process adjudication recent history constitutional adjudication state criminal cases ascendancy doctrine ad hoc selective incorporation approach absorbs individual guarantees federal bill rights due process clause fourteenth amendment holds applicable subtleties refinements born history embodied case experience developed context federal adjudication thus exceptions incorporated time protest almost criminal protections found within first eight amendments constitution made applicable process began mapp ohio applied exclusionary rule rendering inadmissible trial evidence seized violation fourth amendment thereby overruling pro tanto wolf colorado see dissenting opinion particular course embarked upon mapp blindly followed end ker california made federal standards probable cause search seizure applicable thereby overruling remainder wolf see opinion concurring result thereafter followed malloy hogan griffin california overruling twining new jersey adamson california incorporating fifth amendment privilege holding standards must determine whether accused silence either federal state proceeding justified see dissenting opinion malloy concurring opinion griffin year griffin also brought forth pointer texas overruling snyder massachusetts stein new york holding sixth amendment confrontation clause applied equally federal government see opinion concurring result incorporation swept speedy trial guarantee sixth amendment klopfer north carolina duncan louisiana supra rendered sixth amendment jury trial right secured fourteenth amendment due process clause last term overruled palko connecticut supra held double jeopardy protection fifth amendment incorporated fourteenth hence also carried benton maryland see opinion concurring result klopfer dissenting opinion duncan dissenting opinion benton separate opinion north carolina pearce combination cases effect restructured constitution field state criminal law enforcement need travel terrain trod earlier opinions endeavored lay bare historical logical infirmities incorporationist approach score content rest said dissent duncan continue consider principles therein expressed sound basis approaching adjudication state cases kind us firm conviction incorporation distorts essentially federal nature national government atlantic coast line brotherhood locomotive engineers one whose basic virtues leave ample room governmental social experimentation society diverse also reflects view framers security liberty america rested primarily upon dispersion governmental power across federal system fourteenth amendment tempered basic philosophy unstitch basic federalist pattern woven constitutional fabric structure government still embodies philosophy presupposes diversity engendered federalist system doctrines alive rhetoric vital world practical affairs evidenced contemporary debate concerning desirability returning local government administration many programs functions late years increasingly centralized hands national government best evidence vitality federalism today decision williams merits demerits jury system course debated diluted requirements evince conclusion protection known common law necessary fair trial marginal assurance fair trial inconvenience assembling individuals outweighs gains administration justice achieved using six individuals none case new york city prevailing opinion rejects baldwin consistent approach requiring affirmance simply new york city single jurisdiction nation sees fit try misdemeanants without jury effect holds due process offended trial without jury offense punishable year prison trial jury six less offenses punishable life imprisonment ignores basic fairness new york procedure peculiar local considerations led new york legislature conclude trial jury apt retard justice criminal defendants new york city one find nothing unfair new york system provides city defendant option lieu jury bench trial three judges crim act moreover think counterproductive fairness criminal trials hold way incorporation juries required days congested calendars attendant delays make many students criminal justice feel one significant contributions injustice hardship criminal defendants statistics cited new york appeals amplified briefs revealing trenchant evidence crisis presently bedevils administration criminal justice new york city new york population density factor noted president commission law enforcement administration justice challenge crime free society directly associated crime twice buffalo second largest city state statistics supplied office state administrator judicial conference state new york show july december new york city criminal disposed nontraffic misdemeanor cases whereas next largest city buffalo city disposed nontraffic misdemeanor cases thus new york city misdemeanor caseload times buffalo although population times greater today defendants new york entitled trial kind jury hardly gainsaid jury requirement attendant time selection jurors deliberation even invoked defendants increase delays calendars depriving defendants prompt trial impressive evidence suggests requirement conceivably increase delays new york city courts much factor eight study done administration municipal minneapolis shows requirement trial jury cases intoxicated driving increased delays three months note right jury trial persons accused ordinance violation rev notwithstanding critical situation concludes constitution requires procedure fraught delay even though american bar association project standards criminal justice trial jury recognized new york city procedure possible compromise measure jury trials permitted waived fact defendants tried misdemeanors new york city acquitted iii today decisions demonstrate constitutional schizophrenia born need cope national diversity constraints incorporation doctrine baldwin prevailing opinion overrides consideration local needs williams seeks minimum standard avoid causing disruption numerous instances even though priori incorporation surely require jury rule today decisions simply reflects lowest common denominator scope function right trial jury country circumstance every jurisdiction except new york city trial jury offenses punishable six months prison obscures variety opinion actually exists proper place jury administration justice discriminating analysis indicates four besides florida authorize jury less try felony offenses three authorize nonunanimous verdict felony cases least two provide trial without jury first instance certain offenses punishable one year right de novo trial appeal eight provide juries ranging five try crimes punishable one year prison one state provided verdict nine jury five first provide bench trial misdemeanors defendant seek trial de novo jury procedure federal trial deemed incompatible sixth amendment putting accused burden two trials wishes jury verdict see callan wilson varying provisions reflecting differing estimates importance jury securing fair trial feasibility administering procedure given local circumstances extensive study debate merits demerits jury system demonstrate relevance proper role trial jury administration criminal justice yet far sure incorporation duncan closed door debate irrespective local circumstances backlogs urban courts like new york city without justification clouded uncertainty constitutionality differing state modes proceeding see appendix pending approval promises dilute ways settled meaning federal right trial jury flexibility experimentation administration justice returned areas swept rigid mold incorporation agree chief justice judgment nation otherwise judgment parts affords basis read constitution something found opinion chief justice baldwin ante appendix opinion harlan louisiana la crim art verdict nine cases necessarily punished hard labor oregon constitution art rev stat five six sufficient verdict circuit except capital cases texas tex code crim art permitting verdict less juror incapacitated trial cases punishable one year imprisonment de novo review maryland constitution declaration rights arts md ann code art art art supp md rules proc trial jury appears afforded motor vehicle cases first instance even though motor vehicle offenses carry penalty five years imprisonment north carolina constitution art state sherron app stat district courts jurisdiction try without jury offenses grade felony offenses denominated petty misdemeanors maximum sentence may imposed fine two years imprisonment pennsylvania constitution sched art iii offenses tried municipal division common pleas carrying penalties two years imprisonment indictable offenses motor vehicle laws punishment exceed three years imprisonment jury misdemeanors alaska constitution art alaska stat jury six district magistrate courts jurisdiction misdemeanors punishable one year imprisonment georgia constitution art art vi code ann supp laws pp country criminal courts jurisdiction misdemeanors cases maximum sentence imposable fine imprisonment term months defendant may demand jury trial depending upon country however jury ranges size five persons criminal atlanta example tries misdemeanors juries five hall county crimes tried juries iowa constitution art iowa code jury six municipal courts jurisdiction misdemeanors carrying maximum fine imprisonment one year kentucky constitution rev stat misdemeanors carrying maximum penalty months imprisonment tried inferior courts jury six circuit courts jury used concurrent jurisdiction mississippi constitution art art miss code ann jurisdiction crimes punishable country jail may tried justice peace courts jury many crimes maximum term circuit courts concurrent jurisdiction crimes include offenses involving corruption elections miss code ann escape aiding escape prisoners public officers interest contracts trade marks oklahoma constitution art stat tit supp tit misdemeanor cases sentence one year imprisonment may imposed courts record defendant may demand jury nine members jury may render verdict violations city ordinances tried courts record defendant may demand six jurors five may render verdict oregon constitution art constitution art vii rev stat jury six county courts jurisdiction crimes except carrying death penalty life imprisonment jury six district courts jurisdiction misdemeanors punishable one year imprisonment virginia constitution art code ann supp courts record jurisdiction misdemeanors punishable one year imprisonment charges tried without jury defendant may appeal right circuit receives trial de novo trials circuit offenses felonious whether first instance appeal five jurors trial misdemeanors subject de novo review arkansas constitution art ark stat ann see generally greenebaum arkansas judiciary history structure ark rev jury provided municipal courts jurisdiction misdemeanors carrying maximum penalty one year imprisonment upon conviction defendant may appeal circuit entitled trial de novo jury maine constitution art rev stat tit supp tit rules crim proc sprague androscoggin county letter dated maine attorney general office new york county district attorney office maine district courts try misdemeanors crimes punishable sentence one year without jury defendant may appeal conviction superior however entitled jury new hampshire constitution pt arts pt art rev stat ann supp state despres district municipal courts try without jury misdemeanors carrying maximum term imprisonment one year defendant courts absolute right appeal superior may demand jury trial de novo rhode island constitution art laws ann state nolan juries district courts jurisdiction misdemeanors crimes punishable fine imprisonment one year defendant may appeal conviction superior entitled trial de novo jury virginia constitution art code ann supp courts record jurisdiction misdemeanors punishable one year imprisonment charges tried without jury defendant may appeal right circuit receives trial de novo five jurors outside new york city cases triable juries florida provides jury capital cases jury try criminal cases stat justice frankfurter said speaking tare decisis embodies important social policy represents element continuity law rooted psychologic need satisfy reasonable expectations stare decisis principle policy mechanical formula adherence latest decision however recent questionable adherence involves collision prior doctrine embracing scope intrinsically sounder verified experience helvering hallock except new york provide jury trials crimes carrying sentences six months good deal diversity number jurors stage right jury trial attaches concluding relying prior decisions jury trial required sixth amendment applies serious opposed petty offenses opinion defines terms perfunctory reference history survey prevailing state rules see ante range severity punishment summary trials defined limiting jurisdiction imposition fines hundred pounds sentences hard labor six months practice colonies uniform apparent line drawn six months instances see district columbia clawans supra nn said significant index seriousness offense degree penalty attaches see frank district columbia clawans supra recalled alone determinative apportioned punishment consequence minor quality misconduct index community moral judgment upon frankfurter corcoran supra clawans held severity punishment determinative offense nature considered grave see also callan wilson supra schick supra noted nature offense severity punishment two distinct considerations cf house debate bill provide trial federal magistrates crimes petty nature cong rec see also sess minority views comments american bar association project standards criminal justice trial jury approved draft comment petty offense category trial jury yale reserve question whether jury required federal case particular offense punishable six months prison think offends equal protection clause new york provide juries hear offenses punishable six months new york city provision trials elsewhere state salsburg maryland missouri lewis upheld right state adapt procedures differing requirements territorial subdivisions salsburg quoted reaffirmed principles set forth missouri nothing constitution prevent state adopting system laws judicature sees fit part territory state new york example see fit adopt civil law method procedure new york city surrounding counties common law method procedure rest state nothing constitution prevent missouri lewis also stated part state thickly settled another part inhabitants may desirable different systems judicature two portions trial jury one example large cities may require multiplication courts peculiar arrangement jurisdictions unfortunate restriction powers state government discretion provide various exigencies see also ohio akron park district ocampo disproportionate number misdemeanor cases clog new york city courts see part iii infra creates difference magnitude justifies differences treatment city defendants conclusions historical materials admission hardly characterized solid entire argument seems flow fact senate committee substituted present language sixth amendment specific house version incorporated unanimity requirement expressly tied jury accustomed requisites meaning change wholly speculative apart vicinage requirement concrete evidence cited show senate opposed likely features madison version adopted house context amendment notable sparseness language likely explanation senate action streamlining madison version assumption prominent features jury preserved matter course interpretation events supported fact specifically objectionable feature jury vicinage requirement language providing trial jury district thus leaving remaining attributes undefined face distinct expectation charged interpretation look common law explanation rendered less forceful fact noted reception jury unfailingly mean early colonial times acknowledges constitutions provided juries arguments simple reference jury article iii necessarily thought mean framers jury light need felt add amendments madison elaborate proposal sixth amendment allusion common law seventh amendment suggests backdrop sixth amendment jury remote require rejoinder disagreed occasions differences majority went conclusions properly drawn history writ precedents jurisprudential approach took history point departure broadly speaking two types constitutional claims come constitutional issues derive broad standards fairness written constitution questions nature allow relatively wide play individual legal judgment class gives scope second class constitutional issues derives specific provisions constitution defined history meaning settled history definition superfluous significance pronouncement minimized holding retrial jury eight ex post facto law perforce built upon conclusion jury right substance right merely procedure mandated statute required ex post facto holding federal rules criminal procedure provide jury fed rule crim proc recently last year lower federal courts assumed commitment unanimous verdict fioravanti cir williams cir see also virginia erection cir goldberg cir rogers cir fournier gonzalez cir billeci app horne cir hibdon cir addition separate opinions noted text see poe ullman dissenting opinion griswold connecticut concurring judgment lanza new york concurring opinion gideon wainwright concurring opinion murphy waterfront concurring judgment barber page concurring opinion berger new york dissenting opinion chimel california supra ashe swenson concurring opinion coleman alabama ante separate opinion bloom illinois dissenting opinion washington texas concurring result dickey florida concurring opinion right counsel appears explicitly incorporated although gilbert california implicitly gideon wainwright purported determination fundamental fairness requires state afford trial counsel indigent accused although disagreed particular holdings like gilbert california supra held must arrange presence counsel lineups see justice white separate opinion wade joined decisions incorrectly require view counsel circumstances presence necessary either sixth amendment due process clause see separate opinion coleman alabama decided today ante president legal aid society new york city recently reported society clients tried new york city criminal without jury acquitted convictions trial acquittals trial speech annual judicial conference second judicial circuit lake placid reprinted september see opinion ante see appendix opinion see ibid see ibid see ibid except class grade offences called petty offences according common law may proceeded summarily guarantee impartial jury accused criminal prosecution conducted secures right enjoy mode trial first moment whatever put trial offence charged accord accused right tried jury appellate fully tried otherwise jury original jurisdiction satisfy requirements constitution see kalven zeisel american jury comment jury verdicts unanimous criminal cases rev justice stewart dissenting ante concurring result substantially agree separate opinion justice harlan filed cases opinion fully demonstrates basic errors mechanistic incorporation approach fourteenth amendment subscribe opinion entirety however reason relies part upon certain dissenting concurring opinions previous cases join incorporation theory postulates bill rights substantive metes bounds fourteenth amendment think theory incorrect matter constitutional history matter constitutional law stultifying unsound best theory lead fourteenth amendment dead end worst spell theory logic compels either impose intolerable restrictions upon constitutional sovereignty individual administration criminal law else intolerably relax explicit restrictions framers actually put upon federal government administration criminal justice much elaborated justice harlan separate opinion affirm judgments substantially reasons architect contemporary incorporation approach fourteenth amendment course justice black see adamson california dissenting opinion separate opinion brother black filed today serve exhibit illustrate extraordinary habits thought us fallen conditioned reflex erroneous constitutional doctrine incorporation become pavlovian brother black barely mentions fourteenth amendment course opinion dealing procedural rule state florida adopted cases tried florida courts florida criminal laws opinion relies instead upon plain obvious meaning specific words fifth amendment provisions bill rights together history surrounding adoption provisions make clear framers designed rights shield defendant state power though admire rhetoric submit deference statements quote author plainly simply wrong matter fact law constitution forbids florida procedure fourteenth amendment either specific words bill rights history surrounding adoption every schoolboy knows framers designed bill rights state power power federal government surely justice harlan right says time face reality like justice harlan join part opinion relating alibi issue occasion state elsewhere understanding whatever worth motivational origins fourteenth amendment incorporation shortly justice jackson came junior members embraced comforting theory fourteenth amendment substantive impact upon exactly measured specific restrictions first eight amendments imposed upon national government call comforting theory critics old subjective approach due process theory appeared give fourteenth amendment objective content definable scope footnotes omitted stewart robert jackson influence relationships justice jackson four lectures honor worthy candidate nomination exhibit separate opinion filed today coleman alabama ante brother douglas dealing procedure followed alabama administration alabama criminal law brother opinion advises us sixth amendment controls statement made name strict construction constitution say agree fifth amendment provisions bill rights render unconstitutional federal alibi procedure similar florida see supra