Simone Lawson
The number of jurors in a trial has been a topic of debate for many years. In the United States, the Sixth Amendment guarantees the right to a trial by jury, but it does not specify the number of jurors required. Historically, 12-person juries were considered the standard and were assumed to be a constitutional requirement. However, in recent years, there has been a shift towards smaller juries, with some courts opting for juries of 8 or even 6 members. This has raised the question of whether juries with fewer than 12 members are constitutional and if they provide the same level of fairness and representation as larger juries.
| Characteristics | Values |
|---|---|
| Number of members in a jury | 12 |
| Is it constitutional to have fewer than 12 members in a jury? | Yes, in civil and misdemeanor cases. In felony cases, a jury must have 12 members as per US constitutional law. |
| Is it constitutional to have more than 12 members in a jury? | Yes, grand juries have 12–23 members. |
| Are juries of 12 members unanimous? | Yes, in criminal cases. In civil cases, although not a constitutional requirement, juries must be unanimous. |
| Are smaller juries more homogenous? | Yes, smaller juries are more likely to be homogenous and may lack representation from minority groups. |
| Are smaller juries more predictable? | No, larger juries are more predictable and less likely to render outlier awards. |
| Are smaller juries cost-effective? | No, jury trials consume a tiny fraction of the court's budget. |
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What You'll Learn
The historical precedent of 12-member juries
The historical precedent of 12-person juries can be traced back to the mid-12th century during the reign of Henry II in England. At that time, juries, usually consisting of 6 or 12 men, were already considered an "ancient institution" in some parts of the country. These men, known as juries of presentment, would testify under oath about crimes committed in their neighbourhood. The right to a jury trial was further enshrined in English law with the Magna Carta in 1215, and it has remained a staple of the judicial system in England and Wales, as well as in other parts of the world.
In the United States, the Seventh Amendment, which preserves civil jury rights, is interpreted as assuming a jury to be comprised of twelve people, with the Supreme Court historically associating 12-person juries with federal civil cases. However, in the 1970 case of Williams v. Florida, the Supreme Court ruled that a jury of six was sufficient and did not violate the respondent's Sixth Amendment rights. This ruling opened the door for districts to adopt local rules authorizing juries of fewer than 12 members, with 80 out of 95 districts doing so by 1978.
Despite this shift towards smaller juries, there has been a recent push to return to 12-person juries in civil cases. Proponents argue that larger juries make better decisions due to increased resources and diverse perspectives. Additionally, they provide broader representation, ensuring that minority groups are not excluded from the jury. The cost arguments against larger juries have also been deemed weak, as jury trials consume a small fraction of the court's budget.
In Australia, the Constitution's section 80 states that trials for offences against Commonwealth law shall be by jury, but it does not specify the number of jurors. The High Court of Australia has ruled that a 12-member jury is not an essential feature of a "trial by jury" under this section. Meanwhile, in Scotland, criminal trial juries consist of 15 jurors, the largest in the world.
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The constitutionality of smaller juries in civil cases
The Seventh Amendment preserves civil jury rights as they existed at common law, and for the next 180 years, the constitutional requirement of a traditional 12-person jury in federal civil cases was virtually unchallenged. However, in Williams v. Florida, the Court rejected the traditional view that the jury trial right required a twelve-person jury and applied a functional analysis to uphold a Florida law providing for a six-person criminal jury. The Supreme Court stated that the essential feature of a jury lies in the interposition between the accused and their accuser of the common-sense judgment of a group of laymen. It added that there was little reason to think that these goals would be less likely to be achieved with a smaller jury.
Following Williams, in Colgrove, the Court acknowledged the value of minority representation on juries but concluded that reducing jury size would have a negligible impact. It freed districts from any constitutional obligation to seat 12-person civil juries. As a result, by 1978, 80 of 95 districts had adopted local rules authorizing juries of as few as six. In 1991, Rule 48 was amended to reflect this reality, providing that a jury must begin with at least six and no more than twelve members.
The social science community has disagreed with the Supreme Court's conclusion that smaller juries are just as good as larger ones. Larger juries are more predictable and less likely to render outlier awards. They also recall evidence more accurately, rely less on conclusory statements and nonprobable evidence, and are more representative of the community. For a minority group constituting 30% of a community, there is about a 1.4% chance that a 12-person jury will not include a member of that group. Additionally, studies show that the ability of a dissenting voice to withstand group pressure is greatly increased when a second dissenting voice is added.
In 2020, the case for returning to the 12-person jury was stronger than ever. Fewer civil cases were being tried, so each civil jury trial took on added importance. Moreover, jury trials consume a tiny fraction of the court's budget, so cost arguments against larger juries are weak.
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The impact of jury size on unanimity
The Sixth Amendment requires jury unanimity in federal criminal trials, and the Fourteenth Amendment extends this requirement to state criminal trials. In 1972, the US Supreme Court held in Apodaca v. Oregon that the Sixth and Fourteenth Amendments did not require jury unanimity in state court jury trials. This decision was overruled in 2020 in the Ramos decision, which reaffirmed the unanimity requirement.
Requiring unanimity increases the likelihood of hung juries, where the judge declares a mistrial if the required number of jurors cannot agree on a verdict. Hung juries occur infrequently, even when unanimity is required. In Europe, juries generally operate under a different principle, where the defendant must be acquitted unless at least two-thirds of the jurors vote guilty.
Jury size has been reduced over the years, with six-person juries being employed in civil cases and minor criminal cases. Smaller juries are more likely to be homogeneous and may lack representation from minority groups. This raises concerns about the impact of jury size on unanimity, as non-unanimous juries can convict or acquit, and minority viewpoints may be outvoted.
In the Williams case, the Supreme Court embraced a functional approach, concluding that six-person juries were just as good as 12-person juries. This freed districts from any constitutional obligation to seat 12-person civil juries. However, in Burch v. Louisiana, the Supreme Court held that six-person juries must convict unanimously, striking down a Louisiana law that permitted conviction upon the agreement of five members of a six-person jury.
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The cost implications of larger juries
In the 1970s, the Court and the Judicial Conference embraced the idea of smaller juries to reduce costs, and this rationale continues to be cited by some states. However, critics argue that jury trials consume a tiny fraction of the court's budget, and the cost arguments against larger juries have been weak. The savings attributed to smaller juries may be due to the decreasing number of jury trials and the use of technology to streamline jury management, rather than the reduction in jury size itself.
Research suggests that larger juries promote inclusiveness and broader representation. Smaller juries are more likely to be homogeneous and may lack members from minority groups. Saks & Marti (1997) found that larger juries had more thorough discussions, and Luppi & Parisi (2013) noted that reducing jury sizes did not decrease mistrial rates. While there may be some cost savings with smaller juries, the value of having a more diverse and representative jury should also be considered.
The debate around jury size and cost implications is complex and multifaceted. While governments may seek to limit jury trials to save costs, it is important to balance this with the right to a fair trial and the benefits of having a diverse and representative jury.
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The diversity and representation of smaller juries
The diversity and representation of juries have been a topic of discussion for many years, with the original 12-person jury format being a fixture in federal courts. However, over the last 40 years, this has become a rarity, with smaller juries becoming more common. The diversity of juries is critical to ensuring that all citizens have a fair trial and that jury deliberations are determined by their peers.
Smaller juries are more likely to be homogeneous and may lack members of minority groups. This can result in a lack of representation for certain communities and impact the fairness of the trial. For example, in the case of Walter McMillian, an African American male who was wrongfully accused and found guilty of murder, the jury that charged him was made up of 11 whites and a single African American. This lack of diversity resulted in an injustice that was later highlighted in the film "Just Mercy". Research from Florida further supports this, showing that all-white juries convicted black defendants 81% of the time, while white defendants were only convicted 66% of the time.
To address these issues, some federal courts have started evaluating their jury selection processes to ensure that age, race, and socio-economic status reflect the communities they serve. For instance, the Eastern District of Michigan employed a grassroots strategy to increase minority representation and reduce non-response rates to jury summons. Additionally, the Equal Employment Opportunity Commission (EEOC) has implemented guidelines stating that businesses with more than 14 employees should reflect the population they work in, suggesting that courts should be held to similar diversity standards.
While some argue for the removal of peremptory challenges to increase jury diversity, others suggest that judges should assess the diversity of the jury and, if inadequate, order a retrial. Increasing jury diversity is not just a matter of fairness but also of improving jury effectiveness and public trust in the judicial process.
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Frequently asked questions
In the US, the Sixth Amendment requires a jury of at least 6 members and no more than 12 in criminal felony cases. In civil and misdemeanor cases, juries can consist of less than 12 members, with a minimum of 6 members.
Larger juries are more representative of the community and can better withstand group pressure. They also recall evidence more accurately and rely less on conclusory statements and nonprobative evidence.
Historically, the number 12 is considered a symbol of completeness and symmetry. It may also be rooted in Judeo-Christian tradition, with references in the Old Testament's Book of Judges and the New Testament's Book of Revelations.
The size of the jury is typically determined by the court and varies depending on the jurisdiction and the nature of the case. Defendants do not usually have the right to choose the size of the jury, but they can consult with their attorney to understand the specific laws and procedures in their jurisdiction.
