IV. Size of Juries in Criminal Cases

• Library: The Rights of the Accused under the Sixth Amendment (ABA) (2016 Ed.)

IV. Size of Juries in Criminal Cases A. Historical Basis for Twelve Jurors

As noted earlier, the Sixth Amendment provides in part that "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." The Constitution, however, does not explicitly provide any further information regarding the size of the jury. Since the 14th century, common law has fixed the size of the jury at twelve, yet the number twelve seems to have been a "historical accident, unrelated to the great purposes which gave rise to the jury in the first place."⁶¹ There is nothing to suggest that the Framers intended that the constitutional requirement of the jury size be the same as common law.⁶² As such, the Supreme Court found the key question was not about the history of the jury's size but, rather, about the function and purposes of the jury trial.

B. Fewer Than Twelve Jurors

The Supreme Court first considered the constitutional adequacy of a six-member jury in a criminal trial in 1970 in Williams v. Florida.⁶³ The Williams Court concluded that the Sixth Amendment was not violated. According to the justices, a jury trial is to prevent oppression by the government through community participation and "the interposition between the accused and his accuser of the commonsense judgment of a group of laymen."⁶⁴ In the Williams Court's view, a twelve-person jury is neither more advantageous to a defendant nor more reliable than a six-person jury.⁶⁵ Indeed, some studies apparently concluded that a smaller jury could, in fact, be more advantageous to a defendant than a larger jury.⁶⁶

In 1978, the Supreme Court placed a limit on how small a jury may be to remain constitutional. In Ballew v. Georgia, the Court decided that a five-person jury violates the Sixth Amendment.⁶⁷ Thus, at a minimum, the jury must be composed of six people despite the fact that the justices "admit[ted] that [they did] not pretend to discern a clear line between six members and five."⁶⁸ Still, they decided that the purposes and functions of the jury could not be fulfilled with less than six jurors, as a jury composed of less than six members is the breaking point of accuracy, reliability, and consistency, and is of "constitutional significance."⁶⁹

C. Federal Juries

Even though the Supreme Court has decided that the Constitution does not mandate a twelve-person jury, a twelve-person jury remains a requirement for federal criminal cases under the Federal Rules of Criminal Procedure.⁷⁰ Several exceptions to the twelve-person jury requirement are worth noting. A defendant may agree to a jury of fewer than twelve at any time before the verdict is rendered.⁷¹ A defendant may also consent to a jury of fewer than twelve returning a verdict if one or more jurors must be excused for good cause.⁷² In addition, the court may permit a jury of eleven "without stipulation by the parties, if the court finds good cause to excuse a juror."⁷³

D. State Juries

About half the states follow the federal rule and require twelve-person juries in criminal cases.⁷⁴ The other states permit juries of fewer than twelve.⁷⁵ Of those states, only six states permit felony prosecutions to be...