Byron White

“ That the defendant faces such a dilemma demanding a choice between complete silence and presenting a defense has never been thought an invasion of the privilege against compelled self-incrimination. The pressures generated by the State's evidence may be severe but they do not vitiate the defendant's choice to present an alibi defense and witnesses to prove it, even though the attempted defense ends in catastrophe for the defendant. ”

“ We need not linger over the suggestion that the discovery permitted the State against petitioner in this case deprived him of "due process" or a "fair trial." 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. Given the ease with which an alibi can be fabricated, the State's interest in protecting itself against an eleventh-hour defense is both obvious and legitimate. ”

“ Legislatures may well have their own views about the relative value of the larger and smaller juries, and may conclude that, wholly apart from the jury's primary function, it is desirable to spread the collective responsibility for the determination of guilt among the larger group. In capital cases, for example, it appears that no State provides for less than 12 jurors—a fact that suggests implicit recognition of the value of the larger body as a means of legitimating society's decision to impose the death penalty. ”

“ We decline to hold that the privilege against compulsory self-incrimination guarantees the defendant the right to surprise the State with an alibi defense.
II In Duncan v. Louisiana, 391 U.S. 145 (1968) , we held that the Fourteenth Amendment guarantees a right to trial by jury in all criminal cases that—were they to be tried in a federal court—would come within the Sixth Amendment's guarantee. Petitioner's trial for robbery on July 3, 1968, clearly falls within the scope of that holding. ”

“ And, certainly the reliability of the jury [p101] as a factfinder hardly seems likely to be a function of its size.
It might be suggested that the 12-man jury gives a defendant a greater advantage since he has more "chances" of finding a juror who will insist on acquittal and thus prevent conviction. But the advantage might just as easily belong to the State, which also needs only one juror out of twelve insisting on guilt to prevent acquittal. ”

“ If the prosecuting attorney fails to file and serve a copy on the defendant of a list of witnesses as herein provided, the court may exclude evidence offered by the state in rebuttal to the defendant's alibi evidence. If such notice is given by the prosecuting attorney, the court may exclude the testimony of any witness offered by the prosecuting attorney for the purpose of rebutting the defense of alibi if the name and address of such witness as particularly as is known to the prosecuting attorney is not stated in such notice. ”

“ It was objected yesterday, that there was no provision for a jury from the vicinage. If it could have been done with safety, it would [p94] not have been opposed. It might so happen that a trial would be impracticable in the county. Suppose a rebellion in a whole district, would it not be impossible to get a jury? The trial by jury is held as sacred in England as in America. ”

“ In his motion petitioner openly declared his intent to claim an alibi, but objected to the further disclosure requirements on the ground that the rule "compels the Defendant in a criminal case to be a witness against himself" in violation of his Fifth and Fourteenth Amendment rights. [2] The motion was denied. Petitioner also filed a pretrial motion to impanel a 12-man jury instead of the six- [p80] man jury provided by Florida law in all but capital cases. [3] That motion too was denied. Petitioner was convicted as charged and was sentenced to life imprisonment. ”

“ The question in this case then is whether the constitutional guarantee of a trial by "jury" necessarily requires trial by exactly 12 persons, rather than some lesser number—in this case six. We hold that the 12-man panel is not a necessary ingredient of "trial by jury," and that respondent's refusal to impanel more than the six members provided for by Florida law did not violate petitioner's Sixth Amendment rights as applied to the States through the Fourteenth. ”

“ The leading case so construing the Sixth Amendment is Thompson v. Utah, 170 U.S. 343 (1898) . There the defendant had been tried and convicted by a 12-man jury for a crime committed in the Territory of Utah. A new trial was granted, but by that time Utah had been admitted as a State. The defendant's new trial proceeded under Utah's Constitution, providing for a jury of only eight members. This Court reversed the resulting conviction, holding that Utah's constitutional provision was an ex post facto law as applied to the defendant. ”

“ We do not mean to intimate that legislatures can never have good reasons for concluding that the 12-man jury is preferable to the smaller jury, or that such conclusions—reflected in the provisions of most States and in our federal system [50] —are in any sense unwise. ”

“ Similarly, while in theory the number of viewpoints represented on a randomly selected jury ought to increase as the size of the jury increases, in practice the difference between the 12-man and the six-man jury in terms of the cross-section of the community represented seems likely to be negligible. Even the 12-man jury cannot insure representation of every distinct voice in the community, particularly given the use of the peremptory challenge. ”

“ While their general legal conceptions were conditioned by, and their terminology derived from, the common law, the early colonists were far from applying it as a technical system, they often ignored it or denied its subsidiary force, and they consciously departed from many of its most essential principles. ”

“ Thus Connecticut permitted majority decision in case of continued failure to agree, id., at 386, Virginia expressed regret at being unable to retain the "vicinage" requirement of the English jury, id., at 405, Pennsylvania permitted majority verdicts and employed juries of six or seven, id., at 398, and the Carolinas discontinued the unanimity requirement, 5 F. Thorpe, Federal and State Constitutions 2781 (1909) (Art. 69, "Fundamental Constitutions of Carolina") . ”

“ Const. of 1776, § 8, in 7 F. Thorpe, Federal and State Constitutions [p99] 3813 (1909) , or to have subsequently interpreted their jury trial provisions to include that requirement. In at least one instance involving conviction by eight jurors, a subsequent South Carolina decision interpreting the provision for trial by "jury," refused to declare the 12-man requirement an essential feature of that institution, immune from change by the legislature. See State v. Starling, 15 Rich. ”

“ Stat. § 913.10 (1) (1967) :
"Twelve men shall constitute a jury to try all capital cases, and six men shall constitute a jury to try all other criminal cases."
4 See App. 82.
5 The Supreme Court of Florida had earlier held that it was without jurisdiction to entertain petitioner's direct appeal from the trial court. See id., at 92. Under Florida law, the District Court of Apeal became the highest court from which a decision could be had. See Fla. Const., Art. V, § 4 (2) ; Fla. App. Rule 2.1a (5) (a) ; Ansin v. ”