You may have heard of the film “12 Angry Men” the 1957 Sidney Lumet drama starring Henry Fonda. It depicted the deliberations of a jury facing the quandary of reasonable doubt and a unanimous verdict requirement (that’s not quite accurate) in the criminal trial of a young man charged with the stabbing death of his father in which a guilty verdict would result in the death penalty.
Earlier this week, I wrote an article for a criminal defense attorney about juries and what exactly comprises a jury? You may be surprised to learn that the size and makeup of a jury has been debated quite a bit – and not in the favor of the citizen, but certainly, in the favor of the state. And that idea of unanimous verdict…? That’s not what you might think, either. Read on…
The number of jurors in criminal cases is a highly debated topic within the legal community. Under the Sixth Amendment, “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committee.” The Sixth Amendment insures the right to a jury, and combined with the Fourteenth Amendment’s due process clause, there is a right to a due process in determining the composition or structure of a jury. However, the specificity as to how many of those impartial jurors are necessary to ensure a fair trial for a defendant, while simultaneously providing a representative cross-section of the community, was not clearly outlined by the framers of the Constitution, and this ambiguity has caused much controversy over the past century.
The number of jurors assigned to criminal trials historically relied on the Magna Carta of 1215 (also known as The Great Charter), and English Common Law. Supreme Court Justice John Marshall Harlan penned, “When Magna Charta declared that no freeman should be deprived of life, etc., ‘but by the judgment of his peers or by the law of the land,’ it referred to a trial by twelve jurors” Thompson v. Utah, 170 U.S. 343, 350 (1898). The general rule adopted by the Court was for a jury of twelve (white) males.
It was in 1970 that Justice Byron White opined that the generally accepted twelve-man jury was arbitrary, even historically accidental, and that a six member jury was constitutionally sufficient. The opinion effectively altered the generally accepted jury size of twelve men. He stated, “[i]n short, while sometime in the 14th century the size of the jury at common law came to be fixed generally at 12, that particular feature of the jury system appears to have been a historical accident, unrelated to the great purposes which gave rise to the jury in the first place.” Williams v. Florida, 399 U.S. 78, 90 (1970). While Justice White found the twelve-man jury to be unnecessary, accidental and somewhat arbitrary, Justice Thurgood Marshall dissented, “[a]s I see it, the Court has not made out a convincing case that the Sixth Amendment should be read differently than it was in Thompson even if the matter were now before us de novo—much less that an unbroken line of precedent going back over 70 years should be overruled. The arguments made by MR. JUSTICE HARLAN in Part IB of his opinion persuade me that Thompson was right when decided and still states sound doctrine. I am equally convinced that the requirement of 12 should be applied to the States.” Williams v. Florida, 399 U.S. 78, 117 (1970).
Eight years later, another case that called to question the matter of jury size came to the Supreme Court, and the Court acknowledged that, though the number six was a bit arbitrary, they had to draw a line somewhere. Justice Powell, joined by the Chief Justice and Justice Rehnquist, admitted in Ballew “the line between five-and six-member juries is difficult to justify, but a line has to be drawn somewhere if the substance of jury trial is to be preserved.” Justice Powell then questioned the methodology with which the Court came to its conclusion stating, “I have reservations as to the wisdom— as well as the necessity—of Mr. Justice Blackmun’s heavy reliance on numerology derived from statistical studies. Moreover, neither the validity nor the methodology employed by the studies cited was subjected to the traditional testing mechanisms of the adversary process. The studies relied on merely represent unexamined findings of persons interested in the jury system.” Ballew v. Georgia, 435 U.S. 223, 246 (1978).
From an outside point of view, jury size debates may seem more like hair-splitting bickering between attorneys, bar associations, courts and legislators. The reality, however, is many case-critical issues arise from a reduced jury size. Many scholars allege that the Williams decision was made using mostly untested research and possibly misinterpreted empirical data and that six-person juries are unable to confer and communicate as effectively during deliberations, often eliminate essential minority group representation, and that their collective memory for factual aspects of the cases are significantly less than in the larger twelve-person jury. Smaller juries, argue academics and scientists, result in more convictions and a higher probability of convicting innocent defendants.
Though six-person juries are considered constitutional by the Court, there is a caveat that was outlined by Justice Rehnquist in his opinion: “However, much the same reasons that led us in Ballew to decide that use of a five-member jury threatened the fairness of the proceeding and the proper role of the jury, lead us to conclude now that conviction for a nonpetty offense by only five members of a six-person jury presents a similar threat to preservation of the substance of the jury trial guarantee and justifies our requiring verdicts rendered by six-person juries to be unanimous.” Burch v. Louisiana, 441 US 130, 138 (1979). In other words, twelve-person juries do not require a unanimous verdict – but six-person juries do.
The questions remain: What size jury is truly a representative cross-section of the community? Are the smaller juries statistically and repeatedly resulting in the convictions of innocent persons? As more scientific and empirical data is collected, analyzed, and more cases are tested in front of the Supreme Court, we may see a revision to those numbers again in the not-to-distant future.