A Six-member Civil Jury in Georgia? the Trial Judges Weigh in - R. Perry Sentell, Jr.

• Publication year: 2002

Special Contribution

A Six-Member Civil Jury

In Georgia? The Trial Judges

Weigh Inby R. Perry Sentell, Jr.*

I. Introduction

The American civil jury stands in the cross hairs of historic reflection. No institution receives more acclaim, and no institution attracts more controversy. on the one hand, the civil jury glows as the jurisprudential bedrock of our legal system. on the other hand, the civil jury draws first-round fire as the preferred target of system reformists. Historically, the jury "reform" proposals range the gamut: from arguments for abolition to movements of modification. The modification movements prove particularly persistent.

Among modern proposals for modification, the civil jury's size has emerged as an aspect of peculiar vulnerability. The reformists are highly critical of the traditional twelve-person panel, and they advocate a drastic decrease in membership. Their substitute, more or less arbitrarily, proposes a civil jury of six members. That proposal has drawn both national and state attention, and it currently confronts the citizens of Georgia. Their ultimate disposition of the issue holds crucial significance. Obviously, it will impact upon each citizen's service as a potential juror. Far more fundamentally, however, it will directly determine the system, which, in turn, determines each citizen's civil rights and responsibilities. Few subjects loom larger for a society.

Intelligent appraisal of the six-juror proposal deserves assistance from all informed sources. No source is more informed than the judges of the superior courts throughout the state. These are Georgia's trial court judges who daily serve with juries to capture that illusive but precious quality of civil justice. This Article seeks to tap that source.¹

II. National Perspective

The jury size-reduction proposal has drawn national attention in two primary contexts. First, the United States Supreme Court has touched upon the issue's constitutionality.² Second, the Federal Judicial Conference has treated the matter by changing its Federal Rules of Civil Procedure for the guidance of the United States district courts.³ Manifesting the explosive controversy enveloping the subject, the actions of both forums drew sharp responses. Only the briefest description of each context will suffice as appropriate background to Georgia's present debate.⁴

A. Developments in the United States Supreme Court

1. The Supreme Court's Decisions. In its 1898 decision of Thompson v. Utah,⁵ the United States Supreme Court confirmed popular predilections by affirming that a constitutionally guaranteed jury "is a jury constituted, as it was at common law, of twelve persons, neither more nor less."⁶ That position appeared to hold firm in the Court until 1970. Then, in its famous decision of Williams v. Florida,⁷ the Court sustained the validity of a state statute allowing six-member juries in noncapital criminal cases.⁸ The common law jury of twelve "appears to have been a historical accident,"⁹ the Court asserted, and "is not a necessary ingredient of 'trial by jury.'"¹⁰

Three years later the Court took its next step. In Colgrove v. Battin,¹¹ the Court denigrated earlier "dicta"¹² and permitted the use of six-member juries in federal civil trials.¹³ The Court in Colgrove dismissed reservations about smaller juries and concluded that "a jury of six satisfies the Seventh Amendment's guarantee of trial by jury in civil cases."¹⁴ Indeed, the Court elaborated, "[F]our very recent studies have provided convincing empirical evidence . . . that 'there is no discernible difference between the results reached by the two different-sized juries.'"¹⁵

In 1978, in Ballew v. Georgia,¹⁶ the Court indicated possible second thoughts.¹⁷ There, as it invalidated a county criminal court's five-member jury, the Court noted the existence of more recent scholar-ship.¹⁸ Those studies indicated smaller juries to be deficient in representing all community views, in fostering group deliberation, and in withstanding biases.¹⁹ Although reaffirming Williams, the Court in Ballew professed "significant doubts about the consistency and reliability of the decisions of smaller juries."²⁰

2. The Response. The Supreme Court's cavalier characterization of the twelve-member jury as "a historical accident" provoked sharp and sustained rebuttal.²¹ "[T]welve was the common number throughout Europe, particularly Scandinavia, and . . . it made its way with the Danes into England."²² Moreover, the Middle Ages' "presentment jury" of the English Hundred consisted of twelve; "any variation in number ended during the reign of Edward IV (1461-1483) when the unanimous verdict of twelve unquestionably and invariably became the law of England, absent consent of the parties."²³ A different theater yielded the same conclusion: "If the twelve apostles on their twelve thrones must try us in our eternal state, good reason hath the law to appoint the number of twelve to try our temporal. The tribes of Israel were twelve, the patriarchs were twelve, and Solomon's officers were twelve."²⁴ Finally, "[i]f the number twelve . . . was used without interruption until twenty years ago, it carries with it a certain presumption of regularity, a certain entitlement to respect . . . ."²⁵

In substantial sum, the scholars insisted, "History . . . might have embodied more wisdom than the Court would allow. It might be more than an accident that after centuries of trial and error the size of the jury at common law came to be fixed at twelve."²⁶ There seems little historical accident in the conclusion that "the Founders believed a 'jury' to be twelve when they drafted the Seventh Amendment."²⁷

The Supreme Court's "no discernible difference" conclusion, asserted in both Williams and Colgrove, likewise drew withering scholastic fire. The attacks focused primarily upon the Court's "empirical" support in both cases. The six studies cited in Williams²⁸ suffered devastating refutation as glaringly unsubstantiated.²⁹ As for the four additional studies enlisted in Colgrove,³⁰ "significant flaws in the design of each study preclude any cautious observer from basing conclusions about differences between six- and twelve-member juries on the reported results."³¹

B. Developments in the Federal District Courts

1. The Judicial Conference's Rule Change. Until 1991 the Federal Rules of Civil Procedure assumed a civil jury of twelve members.³² At that time, the Federal Judicial Conference amended Rule 48 as follows: "The court shall seat a jury of not fewer than six and not more than twelve members . . . ."³³ This change "removed the presumption that the jury always must be composed of twelve members absent party stipulation and formally recognized the validity of local rules that make the standard jury size a number that is fewer than twelve."³⁴

2. The Response. The Judicial Conference's 1991 rule change for the federal district courts prompted the Conference's own Standing Committee on Rules and Procedure to undertake further study of the issue. Evidence before the Committee reportedly indicated that smaller juries increase pressure on minority-viewpoint jurors, yield to aggressive jurors, conduct poorer deliberations, and reach less desirable out-comes.³⁵ As a result, the Committee "apparently decided that the efficiency achieved by using smaller juries was not worth a deterioration in the quality of the deliberative process."³⁶ Accordingly, the Committee recommended that the Judicial Conference reinstate the twelve-member jury requirement for all federal civil trials.³⁷ In 1996, however, the Conference rejected that recommendation.³⁸

The controversy surrounding the rule change refuses to subside. In 2001, the American College of Trial Lawyers issued a "Report on the Importance of the Twelve-Member Civil Jury in the Federal Courts."³⁹ The "College," composed of "more than 5,000 Fellows across the United States and Canada," boasts a membership that includes lawyers "who represent plaintiffs and those who represent defendants in civil cases."⁴⁰ It reports that "[o]n the twelve-person jury issue, however, the plaintiff and defense Bars were of one voice."⁴¹ Following considerable discussion, the College's Report reasons that "just as 'two heads are better than one,' twelve heads are better than six."⁴² It proceeds to find that "[t]welve-person juries work better than six-person juries, whether as fact-finders, repositories of social norms, voices of the community, integrators of individual viewpoints, or in all roles combined."⁴³ Finally, it concludes, "the reduction in the size of the jury from twelve members to six impairs the process of rational fact-finding that lies at the heart of civil litigation and diminishes the role of the jury as an effective instrument of democratic government."⁴⁴ The Report recommends that "the traditional twelve-member civil jury should be reinstated in the federal courts."⁴⁵

C. A Summary of Positions

A national body of learning, even superficially summarized, reflects a number of positions on jury size-reduction, both in opposition and in favor.

1. Opposition. Much scholarly literature holds remarkable consensus on five features: (1) The six-member jury is deficient in representing a broad cross-section of the community.⁴⁶ (2) The six- member jury decreases participation in deliberations by minority-viewpoint jurors.⁴⁷ (3) The six-member jury's decisions lack predictability and consistency.⁴⁸ (4) The six-member jury is unduly vulnerable to domination by personality characteristics of an aggressive juror.⁴⁹ (5) The six-member jury's deliberations suffer in time and in quality.⁵⁰

2. Reduction Advocates. Advocates of the six-member jury highlight four areas of advantage for the smaller panel.⁵¹ (1) Members of the six-person jury are more likely to be satisfied with their service.⁵² (2) Smaller juries entail fewer mechanical problems of disruption and coordination.⁵³ (3) Smaller juries encourage...