Duncan v. Louisiana 391 U.S. 145 (1968)
DUNCAN v. LOUISIANA 391 U.S. 145 (1968)
A 7–2 Supreme Court here overruled several earlier decisions and held that the fourteenth amendment incorporated the Sixth Amendment right to trial by jury. Louisiana tried Duncan for battery, a misdemeanor charge punishable by up to two years' imprisonment. The court denied his request for a jury trial and sentenced him, upon conviction, to sixty days and a $150 fine. On appeal to the Supreme Court, the Justices abandoned the approach used in palko v. connecticut (1937) and Adamson v. California (1947), where the Court had examined the circumstances to determine whether they preserved the implicit due process requirement of "fundamental fairness." In his opinion in Duncan, Justice byron r. white asked instead whether trial by jury was "fundamental to the American scheme of justice" and concluded that history supported an affirmative response. Conceding a court's duty to distinguish between petty and serious offenses to determine which cases warranted this protection, White declined to do so as a general rule. He declared that an offense punishable by more than two years' imprisonment was sufficiently serious to apply the Sixth Amendment guarantee. Penalties involving less than six months' time were not accorded that right. As usual, Justices hugo l. black and william o. douglas, concurring separately, advocated the total incorporation doctrine. Justices john marshall harlan and potter stewart, dissenting, asserted that "the Court's approach and its reading of history are altogether topsy-turvy." Later decisions in williams v. florida (1970) and Apodaca v. Oregon (1972) have limited the extent of the right incorporated.