"the evidence held to be inculpatory * * * [must have had]
at least a sinister significance * * *, or if this at times be lacking,
there must be in any event a manifest disparity in convenience of proof
and opportunity for knowledge, * * *" Whereas, accordingly, under the
terms of the section previously upheld, the defendant could prove his
citizenship without trouble, and the State, if forced to disprove his
claim, could be relatively helpless, the background of the accused party
being known probably only to himself and close relatives, the alleged
Japanese defendant, in the last mentioned case, would have suffered
hardship and injustice if compelled to prove non-Japanese origin,
especially since ineligibility renders criminal conduct otherwise
lacking in "sinister significance" (occupation of land under lease from
an American codefendant).[798] On the other hand, it was held in a
recent case, that Oregon was entitled to require that one pleading
insanity as a defense against a criminal charge should prove same beyond
a reasonable doubt, and to make "morbid propensity" no defense.[799]

Jury Trials: Dispensing With Jury Trials

Trial by jury has not been considered essential to due process, and
since the Fourteenth Amendment guarantees no particular form or method
of procedure, States have been free to retain or abolish juries.[800]
Conformably to the Constitution, States, in devising their own
procedures, eliminated juries in proceedings to enforce liens,[801]
inquiries for contempt,[802] mandamus[803] and quo warranto
actions,[804] and in eminent domain[805] and equity proceedings.[806]
States are equally free to adopt innovations respecting the selection
and number of jurors. Verdicts rendered by ten out of twelve jurors may
be substituted for the requirement of a unanimous verdict,[807] and
petit juries containing eight rather than the conventional twelve
members may be established.[808]

DUE PROCESS IN CRIMINAL PROCEEDINGS

General

In the following pages the requirements of the due process clause of
Amendment XIV in criminal cases will be dealt with in approximately the
order in which questions regarding them arise in the course of a
prosecution.

Indefinite Statutes: Right of Accused to Knowledge of Offense

"A statute so vague and indefinite, in form and as interpreted, * * *
[as to fail] to give fair notice of what acts will be punished, * * *,
violates an accused's rights under procedural due