Why twelve in a jury

The civil jury post may run a little differently than it has before, but it remains a group tasked with making consequential judgments through a collaborative process. Whether those people are together in a courthouse or on a computer screen, that process works best when jurors deliberate by the dozen.

A jury of twelve resonates through the centuries. Twelve-person juries were a fixture from at least the 14th century until the s. Whether to empanel 6 or 12 or some number in between is a choice for the judge to make. Our sense, and that of many others, has been that traditional person civil juries were becoming rare, and that federal judges had come to view smaller juries as the norm.

But data on jury size is hard to come by. The Administrative Office of the U. So, we collected jury-size data from 15 federal districts for the three-year period from January 1, to December 31, The results were dramatic and confirmed our fears. In the 15 districts in our study, there were a total of 1, civil-jury trials from to and 22 in Of those, just At the other end of the spectrum, juries that began with just 6 members were rare.

Just 1. The answer is clear: 8. Fully Courts are over five times more likely to empanel a jury of 8 than they are to empanel a jury of In short, juries of 8 are the new normal, and anything else is the exception.

A pie chart and table are included at the bottom of this piece. These statistics hold up when analyzed across the nature of the suit. These statistics also hold up across most of the individual districts we examined, though with some notable exceptions.

In 12 of the 15 districts in our study, juries of 8 or fewer were used in at least half of the cases. In two districts, juries of 8 or fewer were used There were only two districts in which there were more person juries than 8-person juries. So now we know. Juries have shrunk.

Most of the time, 8 is the number. But is it the right number? The answer from the social-science community has always been a resounding no. Twelve-person juries were a fixture from at least the 14th century until the s. To that, add the benefit of engaging more citizens in the best civics lesson the judiciary offers.

To all of that, add our common sense telling us that 12 heads are better than six, or eight, or even ten.

Social science. Common sense. And yet, most federal judges today routinely seat civil juries without the full complement of 12 members. Because in the United States Supreme Court said it was okay. Since then, the smaller-thanperson jury has become a habit. For many courts, it has become the default. To test our shrunken-jury hypothesis, we gathered data from 15 federal districts over the three years from to The results are dramatic and confirmed our worst fears. Over 60 percent of the trials in our study were to juries of eight.

It is the new normal. No other size jury comes close. Only one in eight civil trials is still heard and decided by the traditional person jury. At the same time, the percentage of civil cases that end in a jury trial continues to plummet, dropping to less than 0.

Federal judges often put the most complicated, high-stakes cases in the hands of smaller juries. Of the ten largest damage awards in civil cases tried to juries in federal courts in , seven were by eight-person juries; one was by a seven-person jury; one was by a nine-person jury; and one was by a six-person jury.

We are not saying any of these cases was wrongly decided. These examples simply show that the smallest juries can be, and are, asked to decide some of the biggest cases. History, social science, civics, and common sense all tell us we have lost our way. Smaller juries should be the exception, and larger juries the rule. We can change course, and we should do it quickly. At the end of this essay, we offer three concrete steps we think can help.

We want to remind judges, emphatically, that the choice is theirs to make. We ask that judges carefully consider the benefits of 12 as the gold standard, and not simply default to six, or eight, or ten. And we hope that, for most cases, 12 will be the number. The person jury is a tradition tracing back to at least , when William the Conqueror brought the practice of trial-by-jury in civil and criminal cases to England. William Blackstone summarized the importance of trials by 12 jurors in his Commentaries :.

The English colonists brought the jury-trial right, with person juries, with them. In the colonies, the right became even more important than in England because it served as a shield and protection against British oppression.

After the Revolution, all of the 13 original states continued the right to a civil jury trial in different fashions. For the next years, the constitutional requirement of a traditional person jury in federal civil cases was virtually unchallenged. The Supreme Court did not often discuss civil juries during this period, but whenever it did, it clearly had person juries in mind.

Things changed in the early s, dramatically, quickly, and unexpectedly. The person standard started to erode when the Supreme Court upheld the constitutionality of a six-person state-court criminal jury in Williams v. Working from that premise, in the United States Judicial Conference took the position that civil juries should have six members unless the parties stipulated to an even smaller number. Battin that the Seventh Amendment permitted six-person juries in civil cases, embracing the same functional approach it developed in Williams.

After Colgrove , the rout was on. The Judicial Conference pressed Congress for legislation setting the size of civil juries at six. But that effort came up just short of the finish line when the proposal was narrowly rejected by the Judicial Conference.

But it is important to understand just where things stand. The Supreme Court has never said that the Seventh Amendment requires smaller juries. Nor has the Court ever spoken against the traditional person jury. Rule 48 sends the same message. Whether to empanel six or 12 or some number in between is a choice for the judge to make. How are federal judges using the discretion the Supreme Court has twice given them — first through its interpretation of the Seventh Amendment, and then again through the amendment to Rule 48?

The longstanding sense is that smaller juries have become the norm. That was our sense, too. But when we went to look at the data, we found none. Nobody had collected it. The odd result occurred because Justice Powell, concurring in both cases, concludes that the Sixth Amendment imposes greater requirements on the federal government than the Fourteenth Amendment, incorporating the basic Sixth Amendment right to a jury trial, imposes on the states.

Powell's rejection of jot-for-jot incorporation was not supported in this case by any other justice. The Court's conclusion in Apodaca and Johnson adopted reasoning similar to that used in Williams v Florida : the right to a unanimous jury verdict might have been the common expectation at the time the Bill of Rights was adopted, but the First Congress rejected language that would have made the unanimity requirement specific. A concurring opinion by Justice Blackmun suggests that he would have a constitutional problem with 8 to 4 or 7 to 5 verdicts.

The four dissenting justices argued that the requirement of proof beyond a reasonable doubt was unconstitutionally weakened by the states' laws allowing non-unanimous jury verdicts in criminal cases. In Ballew v Georgia , the Court decided it had gone far enough down the slippery slope. Justice Blackmun's opinion for the Court, relying on a set of empirical studies showing problems with smaller juries, found that Georgia's law allowing criminal juries of just five person violated the Sixth Amendment rights of defendants.

While concurring in the result, Justice Powell, joined by two other justices, reiterated that he did not think the Fourteenth Amendment imposed exactly the same requirements for juries on states that the Sixth Amendment did on the federal government.

The Supreme Court visited the issue of jury size and unanimity one final time in In Burch v Louisiana , the Court found Louisiana's law that allowed criminal convictions on 5 to 1 votes by a six-person jury violated the Sixth Amendment right, incorporated through the Fourteenth Amendment, of defendants to a trial by jury. On appeal, he argued that the Sixth Amendment provided for jury trial according to its characteristics under English and American common law, consisting of twelve peers.

It first determined that modern juries were not bound to their common law form, and then adopted a functional equivalence test for any reduction in jury size from the traditional twelve. In , the Supreme Court further reconsidered the constitutional requirements of jury sizein Ballew v. Ballew was charged for two counts of misdemeanors for distributing obscene materials in violation of Georgia law.

He went to trial in the Criminal Court of Fulton County, Georgia, where the court tried misdemeanor cases before five-person juries. On appeal, Ballew raised a Sixth Amendment challenge against the five-person jury, but he was unsuccessful.

The Supreme Court granted certiorari and considered whether a five-person jury in a state criminal trial was valid under the Sixth and Fourteenth Amendments. While the Court upheld the constitutionality of a six-person jury in Williams , it purposefully did not address whether a jury with fewer than six individuals was constitutional.

In Ballew, the Supreme Court was determined to answer whether a jury with fewer than six individuals "inhibite[ed] the functioning of the jury as an institution to a significant degree, and, if so, whether any state interest counterbalances and justifies this disruption.

First, the Court looked at contemporary research demonstrating that smaller juries were less likely to facilitate effective group deliberation. Third, the likelihood of a hung jury decreases as the juries reduce in size; this disadvantages the defense. Hung juries generally only occur where one or two jurors are unconvinced of guilt. He also wrote, "Neither the validity nor the methodology employed by the studies cited was subjected to the traditional testing mechanisms of the adversary process.

In Gonzalez v. Florida , the Calebresi Amici Brief raises several issues with the Ballew decision. Ballew abandoned the functional equivalence test used in Williams in favor of a bright-line rule that six-person juries were constitutional, but five-person juries were unconstitutional.

However, this bright-line rule seems arbitrary given that the Court relied on studies showing that the six-person juries perform worse than twelve-personjuries. Here are some of the studies comparing six-and twelve-person juries which were cited by the Court in Ballew :.

Critics have wondered why Blackmun did not overturn the holding in Williams given the social science evidence that six-person juries do not deliberate as well as twelve-person juries. As Shari Diamond puts it, the jury is supposed to be a representative sample of the community. The question becomes one of degree; specifically, how much less representative of a community population is a jury of six likely to be than a jury of twelve?