BALLEW v. GEORGIA
Ballew was found in violation of a misdemeanor for exhibiting an obscene motion picture film. In the Criminal Court of Fulton County, a jury of five persons was selected and sworn to hear the case.
Does a state criminal trial by a jury of only five persons deprive the accused of the right to a trial by jury as protected by the Sixth and Fourteenth Amendments?
Legal provision: Right to Trial By Jury
Yes. The Court found that a trial by jury of less than six members violated the accused's right to a trial by jury as protected by the Sixth and Fourteenth Amendments. Justice Blackmun reasoned that small juries foster poor group deliberation. Group memory of the details of testimony, the ease with which group compromises can be made, and the desire of the group to be self- critical and reflective are all hindered as the size of the jury decreases. Blackmun also relied on statistical studies to claim that the risk of jury error increased with smaller juries.
Argument of Michael Clutter
Chief Justice Warren E. Burger: We will hear arguments next in some of the 76-761 Ballew against Georgia.
Mr. Clutter, I think you may proceed whenever you are ready.
Mr. Michael Clutter: Mr. Chief Justice and may it please the Court.
First of all I would like to apologize both on my own behalf and on behalf of Mr. Smith for the lateness of the motion which allowed me to argue this case.
Mr. Smith is involved in another matter and it was only at the end of last week it became apparent that, that might interfere with argument here.
I apologize again for the lateness of that and for any inconvenience that may caused the Court.
Chief Justice Warren E. Burger: No inconvenience, it is to the Court at all.
Mr. Michael Clutter: Thank you sir.
This case involves a conviction from the state courts of State of Georgia of two counts of distributing obscene material.
The two counts are both predicated upon the same material and involves two exhibitions of the film, “Behind the Green Door,” in the same theater on two different dates.
The petitioner was tried on these two different counts before a five-person jury pursuant to the authority of a Georgia Constitutional Provision, which we challenge here.
He was convicted.
The judgment of conviction was affirmed in Georgia Court of Appeals and the opinion in judgment which we challenge here.
There are three arguments on this petition for certiorari.
I think in our candor that only two of them are susceptible to any elucidation on oral argument.
The third question relates to the obscenity well known of the films involved in this case.
We certainly do not abandon that argument or anyway retreat from it, but I do not think that could really be expounded upon much in oral argument.
We submit that question on the argument submitted in the brief and I would not choose to present any oral argument on the unless the Court asked me any specific questions.
The other two questions involved are the five-person jury, the constitutionality of the five-person jury before whom the petitioner was tried and the constitutionality of the jury instructions which allowed a conviction on the basis of not only actual knowledge of the materials, but constructive knowledge of the materials.
The five-person jury question was one which was specifically reserved by this Court; five-persons or less was specifically reserved by this Court in Williams v. Florida which approved a six-person jury and said that do not violate the Sixth Amendment Right as applied to the states to the Fourteenth, reserving the question of whether any lesser number might so violate it.
As is argued in a brief, I think there is just one point that needs emphasis in this case which differentiates it from cases like Williams and that is that we are dealing with a determination of obscenity and we are concerned in this case as not only with whether a five-person jury as equally able to determine guilt or innocence as a six or as a twelve-person, but whether a five-person jury is equally as able to delineate the applicable community standards in the determination of obscenity.
I think that the sensitive First Amendment arguments here differentiates this case from those like Williams that those are not the values upon which this argument is predicated, but I think they are a separate and distinct line of argument.
Chief Justice Warren E. Burger: When you are suggesting that this claim about a less than 12 jury is focussed just in First Amendment cases, is that it?
Mr. Michael Clutter: I am suggesting alternative arguments to support the petitioner's position, Your Honor, that even if the Court were to find that the five-person juries might be constitutionally acceptable as a Sixth Amendment matter in cases not involving the First Amendment, that it should find that the five-person jury is not constitutionally acceptable in First Amendment cases, involving a determination of community standards.
Unknown Speaker: Because not an appropriate representative of the cross section of the community?
Mr. Michael Clutter: That is correct Your Honor, that position is spouseless pursuant to this Court's --
Chief Justice Warren E. Burger: Could you make that argument equally, to the effect that 24 would be more constitutional even though we have never used 24 member juries.
Mr. Michael Clutter: I do not know if more constitutional would be the appropriate word to describe that.
Chief Justice Warren E. Burger: I am not sure either.
Mr. Michael Clutter: I think --
Chief Justice Warren E. Burger: But you are saying it is not constitutionally you use less than 12 in the First Amendment?
Mr. Michael Clutter: We are submitting the argument that it is not constitutional to use less than 12 in First Amendment case in the event that the Court finds that argument without merit that the drop in the number from 6 to 5 is even more important than even -- and even more a suspect in a First Amendment case than it would be in another case.
Unknown Speaker: Well it just suggests Mr. Clutter that bench trials will be inappropriate for the determination of obscenity, a single judge cannot?
Mr. Michael Clutter: Your Honor it should, if the defendant in focus right to a jury trial, we would most surely submit --
Unknown Speaker: What if he did not?
Mr. Michael Clutter: If he did not, he certainly has the right to submit determination of his guilt or innocence to a single judge.
Unknown Speaker: Well do not you have bench trials and judge it -- that the determination of obscenity not in a criminal case, but in some kind of civil cases?
Mr. Michael Clutter: Yes Sir.
Unknown Speaker: What about that?
Would a single judge able to determine obscenity?
Mr. Michael Clutter: Yes sir, pursuant to Civil statutes in present Georgia is a single judge.
Unknown Speaker: And you do not think they will present any First Amendment problem?
Mr. Michael Clutter: I think it does Your Honor, but it have to admit that it --
Justice Potter Stewart: That is because of a waiver of your constitutional right?
Unknown Speaker: No, I am talking about a civil case?
Mr. Michael Clutter: In the civil proceedings even without a waiver I believe, although I cannot state with certainly that it is possible to, over a civil defendant's objections to try a obscenity case before a judge and not before a jury.
Chief Justice Warren E. Burger: I am talking about -- it had cases from Georgia precisely of that kind.
A judge, trial and determination of obscenity for purposes other than criminal?
Mr. Michael Clutter: Your Honor, the only case I know of in that regard, there were cases here, is Paris Adult Theater v. Slaton.
In that particular case which Robert Smith did argue before the Court, I believe the defendant waived his right to jury trial.
I am not sure if, I am not positive and I do not want to state that as a fact, but I believe that in that case it was, I guess in the nature what we call a test case, he wanted to determine the constitutionality --
Chief Justice Warren E. Burger: Well, in such case in almost any state a nuisance case addressed to at an equity court, it would not very likely be a single judge enjoining the display of the film or a book, would it not?
Mr. Michael Clutter: Most probably Your Honor.
I know of no nuisance statue that is still -- that held constitutional, the nuisance statute we have in Georgia as applied to obscenity has been held unconstitutional by the Georgia Supreme Court and I think that nuisance statue thus applied to First Amendment materials have met a similar fate in all the other states that I know of.
I do not know of any that remains.
I know they have been struck down in Michigan, Kentucky, Indiana, Illinois, Colorado, California, Nebraska perhaps other states.
I do not know again whether juries were available in those other jurisdictions.
All I know is under Georgia I think that perhaps a single judge could determine even over defendant's objection that that statute is no longer in existence.
Unknown Speaker: Of course, there is at least one dissent in this Court, Kinsley Books. Back in the 1956 or 1957, that was a civil case.
Mr. Michael Clutter: Yes sir.
Unknown Speaker: It was suggested that the determination of obscenity was always the, bench trial or otherwise, by a jury because of its function as cross section of community.
As far as I know that idea as not caught on?
Mr. Michael Clutter: Yes sir.
Well, Your Honor, I think that argument has taken on more significance post Miller with the determination by this Court that it is not a national community standards which perhaps one person could as easily guess at as a group of 6 or even 12 from a local community, and when standard has been replaced by a standard of the local community and especially with this Court's ruling that no evidence on those community standards need to be submitted.
The juries bring that into the jury room with them.
They live in the community and they bring their own knowledge of the community standards to the room with them.
With that standard being applicable as opposed to some national standards which, they might only give evidence on or guess on, I think that a root deliberation is really more important even more constitutionally mandated.
Justice William H. Rehnquist: Was not your argument made and rejected in McKinney v. Alabama by the majority, we are dealing with the civil nuisance statute?
Mr. Michael Clutter: I do not believe that question was addressed to McKinney.
I think that the McKinney dealt only with the applicability of a civil determination to a another litigant.
Unknown Speaker: Well, I think that brother Rehnquist is right because at least, I forget whether it was concurrence or dissent, did address it, but it was not raised.
Mr. Michael Clutter: No sir.
Unknown Speaker: As decided by the Court?
Mr. Michael Clutter: So far as I know McKinney dealt only with the applicability of determination of obscenity of criminal litigant later and foreclosing that question became in a later criminal obscenity case.
The Court in its enunciation in Williams did not make any or did not focus upon or decide the case on the basis of historical analysis, but instead examined the purposes of the right to trial by jury.
And as is submitted in brief I believe that in light of those purposes, both as to the determination of guilt or innocence of this defendant and as to the determination of community standards in the First Amendment area that the decrease from 6 to 5 or indeed from 12 to 5, since this is a first time that a First Amendment issue had been presented, is constitutionally suspect, if the right to trial by jury as I said in Williams are safeguard against an over-jealous or a corrupt prosecutor and it separates the defendant from a compliant biased or eccentric judge.
I think that those values are little served if the complaint or corrupt biased or eccentric judges only replaced by such a jury and I think that the slippery slope argument which is recognized in footnote-22 is squarely presented to you and I just ask Your Honors to hold that the time has reached to get off the slippery slope as the Court suggested that it would do at the appropriate time in that footnote.
Unknown Speaker: Are you asking that Williams v. Florida be overruled?
Mr. Michael Clutter: No sir.
I do not think it is necessary to overrule Williams v. Florida.
I think that there are two alternative grounds for this particular question; either to hold that Williams is inapplicable as applied to First Amendment cases where pursuant to Miller or jury determination of community standards must be made.
I think that even with Williams' extent, the Court might really hold that the further step down the slope that was recognized in that case from 6 to 5 is inappropriate, but it is certainly not necessary in either instances, under either arguments submitted by this petitioner to overrule Williams.
The other question presented relates to the constitutionally accepted minimum standard of scienter in obscenity cases.
This question arises because the judge instructed the jury in this case pursuant to Georgia statute that the defendant could only be convicted for knowing distribution of obscene material, that knowing in this context, and these are the other words of the statute, includes both actual and constructive knowledge and a person has constructive knowledge if he has knowledge of facts or circumstances that will put a reasonable person on notice as to a suspect --
Justice William H. Rehnquist: What is in the charge, a constructive knowledge of obscene content?
Mr. Michael Clutter: Yes sir, that is again from the wording of the statute.
It says the scienter requirement in Georgia and under the statute is worded as either actual or constructive knowledge of the obscene content.
Unknown Speaker: Well, thought it was of a suspect content?
Mr. Michael Clutter: Well, Your Honor under the wording of the statute and that is set forth in the appendix, it is stated that the constructive knowledge is knowledge of facts or circumstances or places or -- I am sorry Your Honor it is not in the appendix, but the wording of it.
Unknown Speaker: Well, I thought quite important that the charge was that the constructive knowledge was to be of this suspect quality, not of the obscene quality.
Therefore is your argument based upon that?
Mr. Michael Clutter: Yes sir.
The knowledge -- both the constructive knowledge of the obscene content and of the suspect nature of the material is set forth in the words in the statute.
What statue says is that one must have knowledge of the obscene content of the material as a term of art --
Unknown Speaker: Were those the instructions to the jury?
Mr. Michael Clutter: Your Honor, the instructions to the jury were that, that element could be met.
Unknown Speaker: The suspect nature?
Mr. Michael Clutter: No Your Honor, the element of knowledge of the obscene content of the material
Unknown Speaker: Where are the instructions here?
Mr. Michael Clutter: Your Honor it is at the bottom of the page 11.
Unknown Speaker: Alright.
Mr. Michael Clutter: That the word knowing as used in the statute is actually a constructive knowledge of the obscene content, but that element could be met merely by showing knowledge of facts or circumstances that will put a reasonable person on notice as to the suspect nature of the material.
Unknown Speaker: I see.
Mr. Michael Clutter: So that it is part goes to the actual and the constructive knowledge standard.
Unknown Speaker: Mr. Clutter I got lost.
You are reading from page 11 of what?
Mr. Michael Clutter: The brief of the petitioner Your Honor.
It is at the bottom of page 11 and beginning 12, it is beginning of that argument set forth in the brief.
I would like to --
Unknown Speaker: So the instruction was, was it not that he was charged with constructive knowledge that the material is obscene, if there was enough information to put a reasonable and prudent man on notice that this material was simply suspect.
Mr. Michael Clutter: That is correct, Your Honor.
They are allow to convict him on that basis and again that is the wording of the statue that --
Unknown Speaker: We do not see them in your brief, except for in your oral argument make much of and unless I misunderstood you, the use of the word suspect?
Mr. Michael Clutter: Your honor I think in light of this Court's decision in Hamling I think that all that the Georgia statute means in that the defendant need not have knowledge of the legal status of the material as obscene and we do not submit that you need one.
Unknown Speaker: Are even constructive knowledge that is obscene, but only constructive knowledge that it is suspect?
Mr. Michael Clutter: Yes sir.
Unknown Speaker: Which is quite a different word from obscene, it means quite a different thing?
Mr. Michael Clutter: Yes sir.
All I wish to state and the reason that particular element was not stressed in the brief is that the petitioner does not here contend that he must constitutionally be found to have had knowledge of the legal status of the material as obscene and that ignorance of the law or the failure to brush up on the law of obscenity would not protect him, that he must merely found to have knowledge of the content of the material and that it falls within the classification that it might be obscene.
But what the petitioner asserts in this case is that he must have actual knowledge of those materials, not merely that he finds himself in the circumstance where a jury might conclude that someone else should have taken further inquiry.
Justice William H. Rehnquist: Do you think there is any difference in the standard to be applied for constitutional purposes to a bookstore proprietor as opposed to a movie house owner?
Mr. Michael Clutter: Your Honor yes, in the sense that the basic thrust of this argument is one of the chilling effect.
I think that the chilling effect in the distribution of the books would be even greater because of the longer time required for the cautious bookseller to familiarize himself with this material then for a cautious movie previewer to sell movies.
However, I am not aware of the factual circumstances under which movies are distributed.
Justice William H. Rehnquist: Well, I would think typically a book store might well have several thousand titles in it at any given time, whereas a movie theater presumably shows one or two shows per night, does it not?
Mr. Michael Clutter: Some movie theaters I guess with the possibility of double features in the multiple theaters that I assume are present here may have 6 to 12 movies at any given time, but the chilling effect argument as put forth by this petitioner would relate not to his exhibition of the film, but his original selection of it.
If a man is sitting in Atlanta and is trying to decide whether or not to order a film to show in his theater, a film with a title such as “Carnal Knowledge” which Your Honors are aware because Jenkins v. George be might well under this statute not even ordered that film unless he has a chance to see it and he might not have a chance to see it before he orders it and if under this statute he is worried that mere presence of that title would make him susceptible to the criminal prosecutions, then he might well refrain from ordering that film and exhibiting at his community and thus deprive those members of his community of a chance to see that film merely because that title might later be held by a jury to put him where he a reasonable and prudent man on notice as to some suspect nature of the material.
So that it may approve before he even orders the material.
Chief Justice Warren E. Burger: I notice in your brief, you have described this film as a nationally acclaimed movie that suggest some awareness by somebody of what the movie was all about or would your answer to that be that he did not take a look at the movie until after the case was brought?
Mr. Michael Clutter: Your Honor, there is no evidence in this record when he took the accountability if we would go outside the record, I could submit as a member of the court as he did not in fact now look at it, but I do not think that is important to this decision.
It was nationally acclaimed in the same way that “Carnal Knowledge” was nationally acclaimed, that any individual defendant may not have seen that material or have been made aware of the circumstances that might later be held to put him on notice to --
Chief Justice Warren E. Burger: You would be further relying on heresy?
Mr. Michael Clutter: It is relying on heresy as to the general course of the film.
It certainly was not, again, I am not even sure how specific that heresy was.
The national acclaim of this film certainly did not arise until after it had been exhibited for some time and whether that was present at the time he ordered the film, I am not sure, but even if it was, it was not specific enough, I would submit to satisfy the constitutional minimum standards of the scienter even if he was aware of that -- that heresy..
Justice William H. Rehnquist: You are suggesting --
Unknown Speaker: That fact that this petitioner had been arrested a couple of times for showing this film?
Mr. Michael Clutter: Your Honor yes, this conviction, excuse me this case involves two different accounts, distributing the film; the first on November 9th of 1973 and the 2nd on November 27th 1973, those were couple of weeks apart as the film; after his first arrest, was continued to be shown and he was in the theater and under the prosecutions theory he was a manager of the theater during that period of time and comes in both of those dates.
Unknown Speaker: Which one of those arrested before as today?
Mr. Michael Clutter: Both of them Your Honor.
They were combined for a joint trial.
He was arrested.
He was sentenced to one year under each count that those sentences were driven concurrently.
He was fined, however, 1000$ on each count, so that we have a punishment attaching to each count separately as it relates to the fines, not as it relates to the time to be served however.
The prosecutor has submitted in his brief that this question has already been answered by the this Court and I think I would just like to state briefly why I think it has not.
His main reliance is upon Michigan v. New York and Ginsberg v. New York that involved two different New York Obscenity Statues.
The first of those was Michigan v. New York that involved a question about the petitioner very similar to the question presented here, asked this Court to delineate the constitutionally acceptable minimum standard of scienter because of the very wording of the statute there which was Section 1411 of the New York Statute was fairly similar in authorizing convictions on the basis of constructive knowledge.
However, before that issue was addressed by this Court, the New York Court of Appeals decided People v. Finkelstein which is cited in this Court's opinion in Michigan and the People v. Finkelstein decided that limited the scienter requirement to what this Court described as a very stringent element of scienter and required knowledge and those who were accused, only those were in some manner aware of the character, not should be aware, not were aware of facts and circumstances to put them on notice, but were aware of the content, I mean, of the character of the material are subject to prosecution and it is aim thus not an innocent, even stupidly innocent, but calculated prevalence of a film.
With that limitation on the statute upon Section 1411 of the New York Penal Code, this Court did not reach and specifically says at page 511 of its opinion, it does not have to reach the constitutional minimum that this statute has limited in this way to those who have knowledge is clearly constitutionally acceptable.
That same result was reached in Ginsberg v. New York a couple years later that involved Section 484 of the New York Penal Code.
The only difference from that and the original in Michigan case was, 484 dealt with distribution of material which although not obscene when judged against standard of adults, was obscene when judged against the standard of its appeal to children.
It was specifically addressed to what today might be called child porn or material which might appeal to children.
That had a scienter requirement again very similar to that before this Court, that was at knowingly means knowledge or reason to know, belief for ground for belief.
So I would admit that is very similar to the standard here.
Again, that question was not reached in Ginsberg because again the People v. Finkelstein gloss on the statute was held by this Court to require under that gloss that actual knowledge, those who are in some manner aware of the character of the material were subject to prosecution. With that gloss this again the Court again states at page 644 and 645 in its opinion, it is not necessary to decide whether or not a constructive knowledge requirement is sufficient because in this case there was an actual knowledge requirement.
Thus neither of those cases reach that issue.
The only other case cited by the solicitor in support of his his position in this regard is Rosen v. United States, a 19th century prosecution under the Federal Statutes and in which the Court said the issue was “whether a paper which was mailed as obscene, lewd, insidious and whether it was deposited in the mails by one who knew or had notice of its content.
I think, however, taking in context if you read on from the quotation in the case which is cited by the solicitor, the following phrase is that thus someone can be convicted even though he did not regard it as forbidden.
I think all this really is in Rosen is statement that was repeated by this Court in Hamling that one need not be aware of the legal status of material as obscene and I just wish to repeat the petitioner here does not support that position and does not suggested that this is even necessary to support him in this case.
Unknown Speaker: Mr. Clutter, do I understand you to take the position that if the defendant can honestly testify he never saw the movie, just avoided seeing it, is he allowed have a defense?
Mr. Michael Clutter: No sir, as stated in here we admit two things.
Of course the state certainly has the right to prove knowledge on the basis of circumstantial evidence and as this Court said in Smith that the judicial process and its ability to ascertain prove this not foreclosed by someone's denial that may will be that the jury could find that the defendant knew the contents of the film whether he saw or not.
All we submit is that knowledge has to be actual or has to be actual rather than constructive knowledge.
I think that people know a great many things without seeing them and may know the content of material and thus someone who purposely for instance, purposely refuses to view films before showing them could well be held by a jury to say that the reason he refused to look at them was indeed exactly because he knew what was in them and all we are arguing in this case is that may be sufficient.
Unknown Speaker: One other question Mr. Clutter, you explained why Michigan and Hamling are not in point.
What's the strongest case supporting your position on the scienter issue?
Mr. Michael Clutter: Your Honor as it relates to constructive knowledge I know of none that specifically addressed the question.
I think that the wording of Hamling as it goes toward knowledge I think supports the position of the petitioner, but most strongly I think the Smith v. California.
The reasoning of Smith is equally applicable to this case, although it admittedly to lesser degree that chilling effect may not be as strong if someone who has no scienter requirement and thus cannot distribute any material unless he actually reads it.
What we have here is not a chilling effect that results in the suppression of material which even in the slightest way may allude towards sex scare off the cautious bookseller, the cautious film prevayer until he has actually has personal knowledge of the film or the book he distributes.
Thank you sir.
Chief Justice Warren E. Burger: Mr. Rhodes?
Argument of Leonard W. Rhodes
Mr. Leonard W. Rhodes: Mr. Chief Justice and may it please the Court.
My colleague has already expounded on the questions involved.
I would go right into the five-person jury question and under the Georgia law as authoritatively construed in numerous cases.
It has been held that all jurors must return a unanimous verdict whether that be a civil case or a criminal case and irrespective of the size of the jury.
This means that in the case at Bar, the jury was in fact charged that they must return a unanimous verdict and that they must find all of the elements there was a crime beyond a reasonable doubt, so that this means that this jury found that Mr. Ballew in this particular case participated in exhibition of this motion picture that the film was in fact obscene.
That he knew it was obscene or was aware of facts which would put a reasonable and prudent person on notice as to the suspect nature of the film which under the Georgia Law constitutes a Notice and that he intended to commit the crimes on both occasions.
Now, how many jurors are necessary to a forward in a fair trial.
As already has been discussed, the case of Williams under the Florida, six was held to be sufficient in a case, a felony case where the accused was charged with the offense of robbery, was tried for the offense of robbery and was sentenced to life in prison.
In the case at Bar the maximum imprisonment is 12 months for each count in misdemeanor offense.
Unknown Speaker: What was the sentence in the case?
Mr. Leonard W. Rhodes: 12 months on each count.
Now, in footnote 28 of the majority opinion in the Williams case, it was written, we have no occasion.
In this case, to determine what minimum number can still constitute a jury, but we do that doubt that six is above that number.
Now, it follows that if six is above the number, five just cannot the below the number.
There is no number in between.
I believe --
Unknown Speaker: Well, it might be, it should have been decided then, should it not, I mean, you say then this question was decided?
Mr. Leonard W. Rhodes: It was decided --
Unknown Speaker: Right then and there.
Mr. Leonard W. Rhodes: If we apply the Williams case to all the criminal cases, yes.
Unknown Speaker: But the Court may decide the question was open, is it not?
Mr. Leonard W. Rhodes: Well, I am not familiar with that Your Honor.
That may well be – in Georgia the constitution or the constitution of the State of Georgia provides that not less than five jurors maybe used to try misdemeanor cases.
The criminal court of Fulton County and which in essence maintains the State Court of Fulton County and the court in which this defendant was tried, a statute, statute permitted by the Georgia constitution allowed misdemeanor cases to be tried by five-person jury, that is since had been changed.
It was changed before this case was on appeal, but it has been changed and now the involvement is in that court and I know of no other court in Georgia which has fewer than six, the same court.
Justice William H. Rehnquist: Well, if this petitioner was brought to trial today then in Georgia, how many people would be on his jury?
Mr. Leonard W. Rhodes: In this court it would be six.
As matter of fact he was brought to trial in this year in another case and he had six-person jury.
In the case of Johnson v. Louisiana in 1972, the Court there approved the legal maxim that the burden of proof by a state or that the state can require a burden of proof by more jurors in more serious cases.
In other words, the lesser the seriousness of the offense or the less serious punishment by a smaller jury and the more severe cases by larger jury and that system which the court talked about and apparently approved, provided for the unanimous verdict.
Juries of five where less serious crime were involved, by a 9 or 12 where more severe crimes and more severe punishment was involved in the unanimous verdict or 12 in the most severe cases.
There has been considerable studies made in recent years on jury size and rule of decision and I would be the first admit they fall on both sides of fence.
There would be a list of numerous studies which would be published this month and notified by authors Tanky & Tanky, a husband and wife team out in San Francisco, Mr. Tanky being a lawyer and his wife being a psychologist, they have formulated a annotated latest of some of these studies.
It would be printed by the American psychological association.
Justice William H. Rehnquist: You think we should withhold our decision till that comes out and --
Mr. Leonard W. Rhodes: No, Your Honor.
There are some already out.
I would note here the journal of personality and social psychology in 1975, volume 32, pages one through fourteen a study of six and 12 person jurors involving unanimous in two-third majority rules reported to me the size and all rule decision affected the decision distribution.
In the University of Michigan Journal of Law Reform of 1973 reported that minority jurors and six-members juries participated in more in the jury deliberations then did minority jurors and 12-member juries.
The same publication in a before and after study of a change from twelve to six members juries reported that there were substantial similarity in the results of the verdict.
In a publication of jury verdicts, the role of Group Size and Social Decisions Rule by Michael J. Sachs of Boston College, copyrighted this year and having been assigned the Library of Congress catalog card number 76-44569.
Mr. Sachs reported that there were no significant differences occurring in the convictions of quarrel issue or the proportion of hung juries as a function of jury size, but he did report that a smaller jury is relied to any decrease in the number of convictions or that at least his studies and report made a suggestion that the smaller juries would lead to a decrease in number of convictions.
Justice Thurgood Marshall: This is all psychology?
Mr. Leonard W. Rhodes: Right and as I say --
Justice Thurgood Marshall: And it had what bearing on us?
Mr. Leonard W. Rhodes: Empirical data, Mr. Justice Marshall.
I am simply citing.
I know that there are others on the other side of the fence, but these appear to bear my contention that a five-member jury is sufficient.
We call the Court's attention to the case of Sanders v. Georgia which this Court denied cert on identical question one year before the question was, a cert was granted on the question in this case as reported at 424 U.S. 393.
Sanders was tried in the same court with five-person jury, he appealed and his cert was denied on the question of scienter and this is already been stated.
The Georgia requires that in obscenity cases the defendant be or have knowledge of the obscene nature.
The law further provides that knowledge can be actual or constructive and the constructive knowledge is either is knowledge of facts which would put a reasonable and prudent person on notice of the suspect nature of the material.
Unknown Speaker: Well that is – that is -- that removes at one stage, does it not?
This jury was instructed under the statute as I understand it, correctly instructed for as the statute wants, that a person has knowledge of the obscene content of the material.
If he has constructive knowledge of a suspect nature of the material.
That is two big steps, is it not?
Mr. Leonard W. Rhodes: That is what the statute has provided.
Unknown Speaker: Not if he had constructive knowledge of the obscene nature of the material, but if he has, he was instructed a -- he knows what the material is if he has reason to know that it is suspect, not that he has reason to know what it is?
Mr. Leonard W. Rhodes: Well, the Georgia law provides what was charged.
Unknown Speaker: I know that and so the --
Mr. Leonard W. Rhodes: He is aware of the type.
Unknown Speaker: The instructions were in court with the Georgia statute.
Mr. Leonard W. Rhodes: That is correct.
Unknown Speaker: (Voice Overlap) says whether or not that is a sufficient instruction to deal with First Amendment, is it not?
Mr. Leonard W. Rhodes: That is the question, yes.
The petitioner concedes that knowledge being required to be actual can be proved by circumstantial evidence.
Now we submit --
Unknown Speaker: But this jury was instructed that he knew it was obscene, if he had constructive knowledge, not that it was obscene, but it was suspect?
Mr. Leonard W. Rhodes: I agree --
Unknown Speaker: Well, the two certainly have different meanings, those two words, are they not, even in this context?
Mr. Leonard W. Rhodes: Your Honor, our position is that if he is aware of facts which would put him on notice of the suspect nature of the material in this instance, on both occasions he was aware that he working in an adult theater, he was the manager, the film was advertised as being XXX movie, signs not to allow anyone under the age of 18 or 21, I don't recall the exact age factor, we contend that those are facts of circumstantial evidence which in affect warrant the inference that he knew that it was obscene.
Unknown Speaker: No, but the jurors are instructed, they could and should find him guilty if he had reason to know it was suspect and if it is something suspect, it may or may not be obscene.
The jury was instructed that it would have find that he knew it was obscene if he had simply reason to know that it was suspect.
Mr. Leonard W. Rhodes: The suspect nature of the material, that is correct.
Unknown Speaker: Mr. Rhodes, supposing that he knew that the name of the film was “Carnal Knowledge,” that would satisfy the intent requirement under the statute even though the film in fact is not obscene, would it not, is that what put him on notice it is suspect?
Mr. Leonard W. Rhodes: Not today, I do not think it --
Unknown Speaker: Before this Court's decision in holding it was not obscene, he should then by just knowing that was the name of the film, they would put him on notice, would it not?
Mr. Leonard W. Rhodes: I do not think so.
Unknown Speaker: You do not think this, would it not that raise a suspicion, do you think that would make a man suspicious that it might be obscene?
Mr. Leonard W. Rhodes: I take it, it would raise a suspicion and that it should be inquire, yes.
Unknown Speaker: Well, is it not exactly what the statute requires, just exactly there?
If he has knowledge of the fact, namely it is name is “Carnal Knowledge” which would put a reasonable prudent man on notice of the suspect nature of the material?
Mr. Leonard W. Rhodes: Well --
Unknown Speaker: And under the statute and under the instructions then the jury is told to convict him?
Mr. Leonard W. Rhodes: Well, I would still contend and submit that to prove that would also prove his knowledge of the obscenity by circumstantial evidence.
Justice William H. Rehnquist: Mr. Rhodes, I notice that Georgia Court of Appeals at page A5 and A6 of the petition devoted only one paragraph to this claimed error in the instructions and at the top of page A6 of the petition it says one charge complained of was a quotation of the definition of obscene material is set forth in Section 26-2101 which I think is the one that petitioner refers to.
Is there any place other than in the record itself whether there would be available a complete text of the trial judge's charge?
Mr. Leonard W. Rhodes: It is here in the joint appendix.
Justice William H. Rehnquist: The full charge is in the joint appendix?
Mr. Leonard W. Rhodes: Page A7 of the joint appendix.
Justice William H. Rehnquist: Thank you.
Mr. Leonard W. Rhodes: Now, I would like just brief to make a comparison on number of the cases that Mr. Clutter has already mentioned, but in Rosen v. United States notice of its contents, notice of its contents was held sufficient.
In Smith v. California circumstances may warrant an inference that he was aware of what a book contained.
It was held that -- eyewitness testimony that he had read the book was not necessary, but circumstances which would warrant the inference said he was aware of what the book contained despite his denial.
In Michigan v. New York it was held that in some manner aware was sufficient, in some manner aware of the character of the material.
In Ginsberg, reason to know, reason to know and we think that knowledge of facts which would put a reasonable and prudent person on notice of the suspect nature would be the same as reason to know or in some manner aware.
Justice Potter Stewart: Reason to know what?
Mr. Leonard W. Rhodes: Reason to know of the nature of the material.
Justice Potter Stewart: The suspect.
He is guilty if he has reason to know its suspect then he under the instructions he is guilty of knowing that it was obscene, that hardly follows just as a matter of rational inference, does it?
Mr. Leonard W. Rhodes: Well, these cases that I am citing Mr. Justice Stewart make these statements that having notice or being aware of the character of the material.
Unknown Speaker: Yes, but not being aware that the material is suspect.[Laughter]
Mr. Leonard W. Rhodes: Well, I fairly see a great deal of difference.
Unknown Speaker: Mr. Rhodes does the same statute government applied to both the bookstores and motion pictures?
Mr. Leonard W. Rhodes: Yes it does Your Honor.
Case of California v. Koontz in which a cert was denied in this Court.
It is reported 61 California Appeals Third, page 735 had a similar provision as determined by the appellate courts of California in that being aware of the character of the matter was the required scienter.
In Hamling v. United State it approved the reasoning in Michigan and Ginsberg and that was in some manner aware a reason to know, reason to know.
To me reason to know [Laughter] is still the same as having knowledge of facts that would put a reasonable and prudent person on notice.
Unknown Speaker: Well, it has the reason to know what.
Let us assume to take a ridiculous case that your legislature said -- it should say that if you have reason to know that a book contains paper and printing on it then that is constructive knowledge that its obscene and that clearly would be wholly irrational and invalid law under the First Amendment?
Mr. Leonard W. Rhodes: Well --
Unknown Speaker: Now, they do not say and here they say if you have reason to know it is suspect then you know it is obscene.
They do not say if you have reason to know it is obscene then you know it is obscene.
Mr. Leonard W. Rhodes: Well, I think here they are saying if he has reason to know it is obscene, if he has reason to know.
Unknown Speaker: If the instructions did not say that in statute, it does not say --
Mr. Leonard W. Rhodes: No, but in here, in these cases, if the, Ginsberg and some of the others that I have cited if he has reason to know and if he has reason to know that it is suspect, [Laughter] he has some knowledge of it in either way.
Unknown Speaker: Well, that is suspect.
If he has know it is suspect, he has constructive knowledge that it is suspect?
Mr. Leonard W. Rhodes: Well, if he has reason --
Unknown Speaker: These instructions did not say that.
Mr. Leonard W. Rhodes: Well, I might go one step further and say that he would be put on notice and it would be required under the Georgia Law and I think under these cases where it says reason to know, but would be put on notice to look further into the matter and to see it, to make an analysis of what he is doing and determine whether not he should continue what he is doing.
Unknown Speaker: May I ask one other question on this subject.
Do you think if Georgia had a Law that said a man is absolutely viable for distributing obscene material, if it is in fact obscene regardless of whether he had knowledge whatsoever about its contents and that would be consistent with the First Amendment?
Mr. Leonard W. Rhodes: No Your Honor.
Unknown Speaker: You do not think.
Mr. Leonard W. Rhodes: I think he must of necessity be aware in some manner of what he is doing that he has to have some intent to distribute, exhibit obscene material.
Unknown Speaker: I am sorry, I had one other question too on your five-man or five-person jury point.
Are there other states, how many other states have five-person juries of which you aware, do you know?
Mr. Leonard W. Rhodes: Well, there is one right off Louisiana that I can say.
Unknown Speaker: That is the only one, yes.
Mr. Leonard W. Rhodes: I am sure there is others.
I believe it rather discussed in the Louisiana case or in a footnote of plural number, states mentioned it and listed to it.
Now, the third question is the question of whether or not the film was obscene.
If you have seen it, you already know what it contains, if you have not you will find that it is hardcore pornography under (Inaudible).
As the Court of Appeals of Georgia said it is complete with all sorts of explicit sexual acts.
There is nothing left to the imagination.
It contains acts masturbation, sexual intercourse, normal and perverted, conalingus, lesbianism, anal, sodomy.
If it has been devised, its contained in that movie.
This film has already had one adjudication of obscenity, at least one, possibly more.
But in a civil case brought in the northern District Court of Norther District of Texas, Judge Robert Hill was wrestling with the problem of whether or not it was obscene in copyright.
Chief Justice Warren E. Burger: I think we will resume there at one o'clock counsel if you have any further.
Mr. Leonard W. Rhodes: I have no further.
I would be willing to waive.
Chief Justice Warren E. Burger: Mr. Clutter so you have anything further?
Have you submitted counsel.
Yes you have some time left.
Mr. Leonard W. Rhodes: If I may in conclusion say that we ask the Court to reaffirm that obscene material is not protected by the First Amendment.
We ask that the Court view this and rule that it is obscene.
It has been so ruled on three occasions and the trial court in this case, by the appellate court, Court of Appeals of Georgia and by the Northern District Court of Texas and that you make it plain to those people in this country that would deal in this matter that they do so at the risk of being prosecuted in the applicable state in Federal Jurisdictions.
Chief Justice Warren E. Burger: Mr. Clutter you have anything further?
Rebuttal of Michael Clutter
Mr. Michael Clutter: Yes Your Honor.
One or two brief points related to that issue of the scienter.
Unknown Speaker: Mr. Clutter if you went on any one of your issues as you need the Court (Inaudible)?
Mr. Michael Clutter: No sir.
I think if the scienter standard was in fact constitutionally insufficient --
Unknown Speaker: How about jury – how about the jury?
Mr. Michael Clutter: And if the jury in fact was constitutionally insufficient I think, it although it might be helpful in a retrial of this matter to know whether the instructions should be given again.
It certainly is not necessary at this point for the court to reach the question of what jury instructions would be proper, should petitioner be retry before six-person jury, that would I guess in a technical sense --
Chief Justice Warren E. Burger: Well, if he is retried, he is automatically tried before a six now?
Mr. Michael Clutter: That is correct sir.
There maybe other counties in the state.
Unknown Speaker: What would happen if we just decided that the movie was obscene?
Mr. Michael Clutter: That would remove our -- if you decide as a matter of law that this movie is obscene.
Unknown Speaker: Then we have to reach other questions --
Mr. Michael Clutter: Yes Sir.
Unknown Speaker: Would you have a retrial?
Mr. Michael Clutter: With all due respect what the petitioner is interested in is the opinion of a properly instructed jury and whether it is obscene.
Unknown Speaker: Yes.
Mr. Michael Clutter: And before there question even reaches ever reaches Your Honors on whether or not the jury determination is constitutionally acceptable and what we contend in the case that we do not have a properly instructed jury and no do we have properly constituted jury to make that determination in the first instance before the question ever gets to this Court.
Thank you Sir.
Chief Justice Warren E. Burger: Thank you gentlemen.
The case is submitted.