Duncan v. Louisiana (1968)

Duncan v. Louisiana, 391 U.S. 145 (1968)


MR. JUSTICE WHITE delivered the opinion of the Court.

Appellant, Gary Duncan, was convicted of simple battery in the Twenty-fifth Judicial District Court of Louisiana. Under Louisiana law, simple battery is a misdemeanor, punishable by a maximum of two years’ imprisonment and a $300 fine. Appellant sought trial by jury, but, because the Louisiana Constitution grants jury trials only in cases in which capital punishment or imprisonment at hard labor may be imposed, the trial judge denied the request. Appellant was convicted and sentenced to serve 60 days in the parish prison and pay a fine of $10. Appellant sought review in the Supreme Court of Louisiana, asserting that the denial of jury trial violated rights guaranteed to him by the United States Constitution. The Supreme Court, finding “[n]o error of law in the ruling complained of,” denied appellant a writ of certiorari. Pursuant to 28 U.S.C.§ 1257(2) appellant sought review in this Court, alleging that the Sixth and Fourteenth Amendments to the United States Constitution secure the right to jury trial in state criminal prosecutions where a sentence as long as two years may be imposed. … 

Appellant was 19 years of age when tried. While driving on Highway 23 in Plaquemines Parish on October 18, 1966, he saw two younger cousins engaged in a conversation by the side of the road with four white boys. Knowing his cousins, Negroes who had recently transferred to a formerly all-white high school, had reported the occurrence of racial incidents at the school, Duncan stopped the car, got out, and approached the six boys. At trial, the white boys and a white onlooker testified, as did appellant and his cousins. The testimony was in dispute on many points, but the witnesses agreed that appellant and the white boys spoke to each other, that appellant encouraged his cousins to break off the encounter and enter his car, and that appellant was about to enter the car himself for the purpose of driving away with his cousins. The whites testified that, just before getting in the car, appellant slapped Herman Landry, one of the white boys, on the elbow. The Negroes testified that appellant had not slapped Landry, but had merely touched him. The trial judge concluded that the State had proved beyond a reasonable doubt that Duncan had committed simple battery, and found him guilty. 


The Fourteenth Amendment denies the States the power to “deprive any person of life, liberty, or property, without due process of law.” In resolving conflicting claims concerning the meaning of this spacious language, the Court has looked increasingly to the Bill of Rights for guidance; many of the rights guaranteed by the first eight Amendments to the Constitution have been held to be protected against state action by the Due Process Clause of the Fourteenth Amendment. That clause now protects the right to compensation for property taken by the State; the rights of speech, press, and religion covered by the First Amendment; the Fourth Amendment rights to be free from unreasonable searches and seizures and to have excluded from criminal trials any evidence illegally seized;] the right guaranteed by the Fifth Amendment to be free of compelled self-incrimination; and the Sixth Amendment rights to counsel, to a speedy and public trial, to confrontation of opposing witnesses, and to compulsory process for obtaining witnesses.

The test for determining whether a right extended by the Fifth and Sixth Amendments with respect to federal criminal proceedings is also protected against state action by the Fourteenth Amendment has been phrased in a variety of ways in the opinions of this Court. The question has been asked whether a right is among those “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,'” Powell v. Alabama, 287 U. S. 45, 287 U. S. 67 (1932); whether it is “basic in our system of jurisprudence,” In re Oliver, 333 U. S. 257, 333 U. S. 273 (1948), and whether it is “a fundamental right, essential to a fair trial,” Gideon v. Wainwright, 372 U. S. 335, 372 U. S. 343-344 (1963); Malloy v. Hogan, 378 U. S. 1, 378 U. S. 6 (1964); Pointer v. Texas, 380 U. S. 400, 380 U. S. 403 (1965). The claim before us is that the right to trial by jury guaranteed by the Sixth Amendment meets these tests. The position of Louisiana, on the other hand, is that the Constitution imposes upon the States no duty to give a jury trial in any criminal case, regardless of the seriousness of the crime or the size of the punishment which may be imposed. Because we believe that trial by jury in criminal cases is fundamental to the American scheme of justice, we hold that the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which — were they to be tried in a federal court — would come within the Sixth Amendment’s guarantee. Since we consider the appeal before us to be such a case, we hold that the Constitution was violated when appellant’s demand for jury trial was refused. 

The history of trial by jury in criminal cases has been frequently told. [Footnote 15] It is sufficient for present purposes to say that, by the time our Constitution was written, jury trial in criminal cases had been in existence in England for several centuries and carried impressive credentials traced by many to Magna Carta*** 

Jury trial came to America with English’ colonists, and received strong support from them. Royal interference with the jury trial was deeply resented. Among the resolutions adopted by the First Congress of the American Colonies (the Stamp Act Congress) on October 19, 1765 — resolutions deemed by their authors to state “the most essential rights and liberties of the colonists” — was the declaration: 

“That trial by jury is the inherent and invaluable right of every British subject in these colonies.” 

***The Declaration of Independence stated solemn objections to the King’s making “Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries,” to his “depriving us in many cases, of the benefits of Trial by Jury,” and to his “transporting us beyond Seas to be tried for pretended offenses.” The Constitution itself, in Art. III, § 2, commanded: 

“The Trial of all Crimes. except in Cases of Impeachment, shall be by Jury, and such Trial shall be held in the State where the said Crimes shall have been committed.” 

Objections to the Constitution because of the absence of a bill of rights were met by the immediate submission and adoption of the Bill of Rights. Included was the Sixth Amendment which, among other things, provided: 

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” 

The constitutions adopted by the original States guaranteed jury trial. Also, the constitution of every State entering the Union thereafter in one form or another protected the right to jury trial in criminal cases. 

Even such skeletal history is impressive support for considering the right to jury trial in criminal cases to be fundamental to our system of justice, an importance frequently recognized in the opinions of this Court. *** 

Jury trial continues to receive strong support. The laws of every State guarantee a right to jury trial in serious criminal cases; no State has dispensed with it; nor are there significant movements underway to do so. Indeed, the three most recent state constitutional revisions, in Maryland, Michigan, and New York, carefully preserved the right of the accused to have the judgment of a jury when tried for a serious crime.  

***The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered. A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government.  

Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The framers of the constitutions strove to create an independent judiciary, but insisted upon further protection against arbitrary action. Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it. Beyond this, the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power — a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence. The deep commitment of the Nation to the right of jury trial in serious criminal cases as a defense against arbitrary law enforcement qualifies for protection under the Due Process Clause of the Fourteenth Amendment, and must therefore be respected by the States.*** 

***The State of Louisiana urges that holding that the Fourteenth Amendment assures a right to jury trial will cast doubt on the integrity of every trial conducted without a jury. Plainly, this is not the import of our holding. Our conclusion is that, in the American States, as in the federal judicial system, a general grant of jury trial for serious offenses is a fundamental right, essential for preventing miscarriages of justice and for assuring that fair trials are provided for all defendants. We would not assert, however, that every criminal trial — or any particular trial — held before a judge alone is unfair or that a defendant may never be as fairly treated by a judge as he would be by a jury. Thus, we hold no constitutional doubts about the practices, common in both federal and state courts, of accepting waivers of jury trial and prosecuting petty crimes without extending a right to jury trial. However, the fact is that, in most places, more trials for serious crimes are to juries than to a court alone; a great many defendants prefer the judgment of a jury to that of a court.  Even where defendants are satisfied with bench trials, the right to a jury trial very likely serves its intended purpose of making judicial or prosecutorial unfairness less likely.*** 

[Footnote 14]  (Other footnotes have been edited out of the case but this is an important footnote that explains the test Justice White used to support his conclusion

In one sense, recent cases applying provisions of the first eight Amendments to the States represent a new approach to the “incorporation” debate. Earlier the Court can be seen as having asked, when inquiring into whether some particular procedural safeguard was required of a State, if a civilized system could be imagined that would not accord the particular protection. For example, Palko v. Connecticut, 302 U. S. 319, 302 U. S. 325 (1937), stated: 

“The right to trial by jury and the immunity from prosecution except as the result of an indictment may have value and importance. Even so, they are not of the very essence of a scheme of ordered liberty. . . . Few would be so narrow or provincial as to maintain that a fair and enlightened system of justice would be impossible without them.” 

The recent cases, on the other hand, have proceeded upon the valid assumption that state criminal processes are not imaginary and theoretical schemes but actual systems bearing virtually every characteristic of the common law system that has been developing contemporaneously in England and in this country. The question thus is whether given this kind of system a particular procedure is fundamental — whether, that is, a procedure is necessary to an Anglo-American regime of ordered liberty. It is this sort of inquiry that can justify the conclusions that state courts must exclude evidence seized in violation of the Fourth Amendment, Mapp v. Ohio, 367 U. S. 643 (1961); that state prosecutors may not comment on a defendant’s failure to testify, Griffin v. California, 380 U. S. 609 (1965), and that criminal punishment may not be imposed for the status of narcotics addiction, Robinson v. California, 370 U. S. 660 (1962). Of immediate relevance for this case are the Court’s holdings that the States must comply with certain provisions of the Sixth Amendment, specifically that the States may not refuse a speedy trial, confrontation of witnesses, and the assistance, at state expense if necessary, of counsel. See  cases cited in nn. 8-12supra. Of each of these determinations that a constitutional provision originally written to bind the Federal Government should bind the States as well it might be said that the limitation in question is not necessarily fundamental to fairness in every criminal system that might be imagined but is fundamental in the context of the criminal processes maintained by the American States. 

When the inquiry is approached in this way the question whether the States can impose criminal punishment without granting a jury trial appears quite different from the way it appeared in the older cases opining that States might abolish jury trial. See, e.g., Maxwell v. Dow, 176 U. S. 581 (1900). A criminal process which was fair and equitable but used no juries is easy to imagine. It would make use of alternative guarantees and protections which would serve the purposes that the jury serves in the English and American systems. Yet no American State has undertaken to construct such a system. Instead, every American State, including Louisiana, uses the jury extensively, and imposes very serious punishments only after a trial at which the defendant has a right to a jury’s verdict. In every State, including Louisiana, the structure and style of the criminal process — the supporting framework and the subsidiary procedures — are of the sort that naturally complement jury trial, and have developed in connection with and in reliance upon jury trial. 

MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurring. 

The Court today holds that the right to trial by jury guaranteed defendants in criminal cases in federal courts by Art. III of the United States Constitution and by the Sixth Amendment is also guaranteed by the Fourteenth Amendment to defendants tried in state courts. With this holding I agree for reasons given by the Court. I also agree because of reasons given in my dissent in Adamson v. California, 332 U. S. 46, 332 U. S. 68. In that dissent, at 332 U. S. 90, I took the position, contrary to the holding in Twining v. New Jersey, 211 U. S. 78, that the Fourteenth Amendment made all of the provisions of the Bill of Rights applicable to the States. *** 

MR. JUSTICE HARLAN, whom MR. JUSTICE STEWART joins, dissenting. 

Every American jurisdiction provides for trial by jury in criminal cases. The question before us is not whether jury trial is an ancient institution, which it is; nor whether it plays a significant role in the administration of criminal Justice, which it does; nor whether it will endure, which it shall. The question in this case is whether the State of Louisiana, which provides trial by jury for all felonies, is prohibited by the Constitution from trying charges of simple battery to the court alone. In my view, the answer to that question, mandated alike by our constitutional history and by the longer history of trial by jury, is clearly “no.” 

The States have always borne primary responsibility for operating the machinery of criminal justice within their borders, and adapting it to their particular circumstances. In exercising this responsibility, each State is compelled to conform its procedures to the requirements of the Federal Constitution. The Due Process Clause of the Fourteenth Amendment requires that those procedures be fundamentally fair in all respects. It does not, in my view, impose or encourage nationwide uniformity for its own sake; it does not command adherence to forms that happen to be old, and it does not impose on the States the rules that may be in force in the federal courts except where such rules are also found to be essential to basic fairness.*** 


NOTES:  The Duncan decision illustrates a number of important points. 

First, look at the flimsy basis for this criminal prosecution.  It is a reminder that there is nothing about “law”and courts that ensures these aspects of the governing system are utilized to advance justice.  Here, the law was used in a segregated county to ensure that racial discrimination was preserved and that whites in positions of authority could use courts to enforce inequality and unequal treatment.  Racial discrimination has been a key characteristic of the American criminal justice throughout the history of the United States.  Unfortunately, social science research on police stops, searches, prosecution decisions, use of force by police, and sentencing shows that racial discrimination continues to exist in many American jurisdictions.  Such improper denials of equal justice under law may be less visible and obvious than they were in Brown v. Mississippi (1936) and Duncan v. Louisiana (1968), but they continue to be a problem for the attainment of the justice system’s professed ideals. 

Second, Justice White’s majority opinion lists a variety of rights that had been incorporated in the two decades after the decision in Adamson v. California.  In a number of individual cases, the Supreme Court declared that individual rights in the Bill of Rights were incorporated into the Due Process Clause of the Fourteenth Amendment and thereby applied to protect individuals against actions by state and local officials.  Most of the rights affecting criminal justice were incorporated by the Supreme Court during the 1960s.  Two additional rights were incorporated four decades later in the twenty-first century, McDonald v. City of Chicago (2010), incorporating the Second Amendment right to own firearms, and Timbs v. Indiana (2019), incorporating the Eighth Amendment protection against excessive fines.  As of 2022, several provisions of the Bill of Rights have not been incorporated and therefore only protect individuals against the actions of the federal government:  Third Amendment protection against quartering troops in people’s homes; Fifth Amendment protection requirement of indictment by grand jury to charge serious crimes; Seventh Amendment jury trial right in civil lawsuits; Eighth Amendment protection against excessive bail. 

Third, Justice White’s opinion applied the Palko principle to determine that the Sixth Amendment right to trial by jury was incorporated into the Fourteenth Amendment Due Process Clause for application to state court proceedings.  Yet, in Footnote 14—that appears at the end of White’s majority opinion (the other footnotes have been edited out of the case opinions presented above)—White indicated that he was using an altered version of Cardozo’s Palko test.  Instead of asking whether the right to trial by jury is fundamental and essential to liberty in a hypothetical society, White made his judgement on behalf of the Court majority by determining that the right to trial by jury is fundamental and essential to liberty in American society, based on the traditions brought to North America from British legal practices. 


Icon for the Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License

Criminal Procedure: Undergraduate Edition Copyright © 2022 by Christopher E. Smith is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License, except where otherwise noted.

Share This Book