[2] Burch was found guilty of showing obscene films by a nonunanimous six-member jury in the state of Louisiana.

The court imposed a suspended prison sentence of two consecutive seven- month terms and fined him $1,000.

Does a conviction by a nonunanimous six-member jury in a state criminal trial for a nonpetty offense violate Burch's Sixth Amendment right to trial by jury as applied to the states through the due process clause of the Fourteenth Amendment?

Justice Rehnquist cited Ballew v. Georgia,[3] noting that only two other states in the country allowed for a non-unanimous decision from a non-six person jury in a non-petty offense.

This "near uniform judgment of the Nation" gave the Court a "useful guide" in determining constitutionally allowable in jury practices.