Jury Size

• Author: Norman Abrams
• Pages: 1515-1517

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Traditionally, in the United States, a criminal trial jury?the PETIT JURY?has been composed of twelve persons. Early Supreme Court opinions assumed that in federal criminal cases juries of that size were required by the Constitution. In PATTON V. UNITED STATES (1930) the Court ruled that during the course of a federal trial a criminal defendant could, with the consent of the prosecutor and judge, waive the participation of one or two jurors and agree to have the verdict rendered by less than twelve.

In DUNCAN V. LOUISIANA (1968) the Supreme Court held that under the FOURTEENTH AMENDMENT a person accused

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of a serious crime in a state court is guaranteed the right to TRIAL BY JURY according to the same standards applied under the Sixth Amendment in the federal courts. Later, in BALDWIN V. NEW YORK (1970), the Court held that a serious, nonpetty crime for purposes of the jury trial guarantee is one where imprisonment for more than six months is authorized. In the wake of Duncan, the Court in WILLIAMS V. FLORIDA (1970) decided that trial of a serious crime by a jury of six persons did not violate the constitutional right to trial by jury. Eight years later, the Court in BALLEW V. GEORGIA (1978) ruled that six was the constitutional minimum?that a jury of five persons did not meet the constitutional standard. In Colgrove v. Battin (1973) the Court had also ruled that a six-person jury in a civil case in the federal courts did not violate the SEVENTH AMENDMENT right to jury trial.

In early England, the number of jurors on a petit jury came to be firmly fixed at twelve some time in the fourteenth century. The reasons for choosing the number twelve for the jury at common law are shrouded in obscurity; the same number was also in wide use in other countries of Europe from early times. Some writers ascribe this number to mystical and religious considerations, for example, the twelve tribes and the twelve apostles. At the time of the adoption of the Constitution and the BILL OF RIGHTS, the idea of the twelve-person jury was entrenched in the English COMMON LAW system and practice of the colonial society.

In Williams, the Court rejected the idea that the history of the drafting of the Sixth Amendment jury trial provision enshrined the twelve-person jury in the Constitution. Instead, the Court adopted a functional approach, relating jury size to the purposes of jury trial. The goals of the jury system were seen...