1303 (1931). We decline to hold that the privilege against compulsory self-incrimination guarantees the defendant the right to surprise the State with an alibi defense. U.S. 335, 349 [399 1 Stat.
4, p. 12 (1932) (noting States that have interpreted the 'right of trial by jury' to permit trial by less than 12 in certain cases). 1812). Necessarily, the defendant will have given the prosecutor the names of persons who may have some knowledge about the defendant himself or his activities. That order was upheld by the highest court in California. In the Frankish empire we are told of 66, 41, 20, 17, 13, 11, 8, 7, 53, 15, and a great variety of other numbers. U.S. 78, 109] ] This is not to say that I would agree that the Fifth Amendment or any other provisions of the Bill of Rights would render unconstitutional a federal alibi procedure similar to Florida's. * * * The Senate suppose, also, that the provision for vicinage in the Judiciary bill will sufficiently quiet the fears which called for an amendment on this point.'40. V, 4 (2); Fla. App. In my opinion the danger of diluting the Bill of Rights protections lies not in the 'incorporation doctrine,' but in the 'shock the conscience' test on which my Brother Harlan would rely instead—a test which depends, not on the language of the Constitution, but solely on the views of a majority of the Court as to what is 'fair' and 'decent.'. Although I have disagreed with particular holdings like Gilbert v. California, supra, where the Court held that the ] See Wiehl, supra, n. 25, at 40-41; Tamm, supra, n. 25, at 134-136; Cronin, Six-Member Juries in District Courts, 2 Boston B. J. 381 that the privilege against self-incrimination is not violated by a requirement that the defendant give notice of an alibi defense and disclose his alibi witnesses. In turn he might be obliged to determine why false charges were instituted and where the breakdown occurred in the examination of evidence that led to a charge. We do not mean to suggest, though, that such a procedure must necessarily raise serious constitutional problems. so as to adapt [it] to circumstances . Senate Journal, Sept 4, 1789, 1st Cong., 1st Sess., 71. Any lawyer who has actually tried a case knows that, regardless of the amount of pretrial preparation, a case looks far different when it is actually being tried than when it is only being thought about. 391 This second justification for cutting the umbilical cord that ties the form of the jury to the past is itself, as. See Heller, supra, n. 25, at 64. It is my firm conviction that "incorporation" distorts the "essentially federal nature of our national government," Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers,
The decision in Williams, however, casts aside workability and relevance and substitutes uncertainty. 395 by . However, since I believe that the Fourteenth Amendment guaranteed Williams a jury of 12 to pass upon the question of his guilt or innocence before he could be sent to prison for the rest of his life, I dissent from the affirmance of his conviction.
2. Such a course, in my view, is involved in this case. It might so happen that a trial would be impracticable in the county. So help me God, and these holy Apostles.". Brief for Amicus Curiae 17-26.
§ 27-2506 (Supp. The holding that retrial by a jury of eight was an ex post facto law is perforce built upon the conclusion that the jury of 12 was a right of substance.
We had occasion in Duncan v. Louisiana, supra, to review briefly the oft-told history of the development of trial by jury in criminal cases.18 That history revealed a long tradition attaching great importance to the concept of relying on a body of one's peers to determine guilt or innocence as a safeguard against arbitrary law enforcement. In Duncan v. Louisiana, No precedent is sacrosanct, and one should not hesitate to vote to overturn this Court's previous holdings -- old or recent -- or reconsider settled dicta where the principles announced prove either practically (e.g., Moragne v. States Marine Lines, supra; Boys Markets v. Retail Clerks, supra), or jurisprudentially (e.g., Desist v. United States, 394 U. S. 244, 394 U. S. 256 (1969) (dissenting opinion)) unworkable, or no longer suited to contemporary life (e.g., Katz v. United States, 389 U. S. 347, 389 U. S. 360 (1967) (concurring opinion)).
Depending upon the county, however, a jury ranges in size from five to 12 persons. Second, provisions that would have explicitly tied the 'jury' concept to the 'accustomed requisites' of the time were eliminated. In Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. Only last Term, the Court overruled Palko v. Connecticut, supra, and held that the "double jeopardy" protection of the Fifth Amendment was incorporated into the Fourteenth, and hence also carried to the States. 372 Therefore, just as the presentment jury represented the voice of the hundred in making the accusation, so the jury of 'the country', with the same number, represented the whole county in deciding whether the accused was guilty or not.' Therefore, just as the presentment jury represented the voice of the hundred in making the accusation, so the jury of `the country', with the same number, represented the whole county in deciding whether the accused was guilty or not." The defendant's new trial proceeded under Utah's Constitution, providing for a jury of only eight members.
Petitioner appears to raise this issue as a possible defect in alibi notice requirements in general, without seriously suggesting that his choice of defense at trial in this case would have been different but for his prior compliance with the rule. This Court has now held almost all these provisions do apply to the States as well as the Federal Government, including the Fifth Amendment provision involved in this case. 27-2506 (Supp. 77; N. H. Rev. [399 In this regard I believe that contemporary usage in the States is of little, if any, significance. 386, 166 S. E. 2d 836 (1969); N.C. Gen. Stat. The fear of conviction and the substantial cost or inconvenience resulting from criminal prosecutions are more than sufficient incentives to make defendants want to help themselves. U.S. 46, 68 .
. U.S. 78, 139]. See infra, at 97 and n. 44. These cases are sufficient evidence of the inch-by-inch, case-by-case process by which the rationale of today's decision can be used to transform radically our system of criminal justice into a process requiring the defendant to assist the State in convicting him, or be punished for failing to do so. Very similar constraints operate on the defendant when the State requires pretrial notice of alibi and the naming of alibi witnesses. As the text indicates, the question is not whether the 12-man jury is traced to 1215 or to 1789, but whether that particular feature must be accepted as a sine qua non of the jury trial guaranteed by the Constitution.
Statistics supplied by the Office of the State Administrator of the Judicial Conference of the State of New York show that: "From July, 1966, through December, 1968, the New York City Criminal Court disposed of 321,368 nontraffic misdemeanor cases, whereas, in the next largest city, Buffalo, the City Court disposed of 8,189 nontraffic misdemeanor cases.". Oregon: Constitution, Art. 52, § 13 (1968), Art. Subsequent references to an appendix are to the separately bound appendix filed with the briefs in this case [hereinafter "App."]. U.S. 78, 90] Cf. The circumvention of history is compounded by the cavalier disregard of numerous pronouncements of this Court that reflect the understanding of the jury as one of 12 members and have fixed expectations accordingly. In Hall County, the same crimes are tried by juries of 12. Footnote 9 378 16 Alaska: Constitution, Art.
Upon conviction, the defendant may appeal to the circuit court where he is entitled to a trial de novo before a common-law jury.) The question before us is whether this accidental feature of the jury has been immutably codified into our Constitution. Rather he has an absolute, unqualified right to compel the State to investigate its own case, find its own witnesses, prove its own facts, and convince the jury through its own resources. This page was last edited on 12 November 2010, at 15:39. 24 [ Alaska: Constitution, Art.
Florida law provides for liberal discovery by the defendant against the State,9 and the notice-of-alibi rule is itself carefully hedged with reciprocal duties requiring state disclosure to the defendant. While much of the above historical discussion applies as well to the unanimity as to the 12-man requirement, the former, unlike the latter, may well serve an important role in the jury function, for example, as a device for insuring that the Government bear the heavier burden of proof.
[ When this Court is called upon to consider the meaning of a particular provision of the Bill of Rights—whether in a case arising from a state court or a federal one—it is necessary to look to the specific language of the provision and the intent of the Framers when the Bill of Rights itself was adopted. In See also 17 Mass.L.Q. 3 in Farrand's records).
None are designed to make convictions easier and taken together they clearly indicate that in our system the entire burden of proving criminal activity rests on the State. U.S. 78, 116] ] See Epstein, Advance Notice of Alibi, 55 J. Crim. The only reason I can discern for today's decision that discards numerous judicial pronouncements and historical precedent that sound constitutional interpretation would look to as controlling, is the Court's disquietude with the tension between the jurisprudential consequences wrought by "incorporation" in Duncan and Baldwin and the counter-pulls of the situation in Williams which presents the prospect of invalidating the common practice in the States of providing less than a 12-member jury for the trial of misdemeanor cases.
[6], Lionel Alias Hitchikolla and Another v. Attorney General (1987) SLR 4, Vol.