Six of one is not a dozen of the other: the size of state criminal juries.

• Author: Miller, Robert H.
• Position: Case Note

The quality of social science scholarship displayed [in the Court's

decisions on jury size] would not win a passing grade in a high school

psychology class.(1)

I have experienced more shocks and surprises from the six-man jury ... than

I experienced in all my previous 13 years combined.... When I speak of

shocks and surprises, I refer only to those instances when every lawyer in

the courtroom, including the judge, was flabbergasted [by the verdict].(2)

INTRODUCTION

In Williams v. Florida,(3) the Supreme Court overturned nearly eight hundred years of settled jurisprudence(4) when it held that the Sixth Amendment guarantee to trial by jury(5) did not require that the constitutionally mandated jury be composed of twelve members.(6) Despite the Court's highly questionable conclusions about the legislative history of the twelve-person jury requirement underlying the Sixth Amendment, and the Court's "remarkable incompetence"(7) in interpreting and applying social-science findings to support its departure from the twelve-person jury standard, Williams and its progeny have never been reexamined. As a result, this line of cases continues to support the premise that six- and twelve-person juries are functionally equivalent, when in truth, modern social-science research finds exactly the opposite.

This Comment revisits the Court's initial decision in Williams, aided by a quarter-century of additional research and information, to illustrate that the case was wrongly decided. First, this Comment will demonstrate that historians reliably have traced the logical development of the twelve-person jury back to the Middle Ages in England, showing it to be anything but a "historical accident."(8) It will also illustrate how Revolutionary-era legislative history strongly indicates the Framers' intent to retain the twelve-person jury standard in criminal trials.

More significantly, this Comment will reveal and discuss the critical ways in which the Court's misinterpretation and misapplication of social-science research in Williams and its progeny triggered the "unthinkable"(9) dismantling of an irrevocable constitutional cornerstone. A comprehensive review of the modern psychological literature will demonstrate that the functional differences between six- and twelve-person juries: (1) implicate the Williams Court's statements about the jury's essential functions, and (2) may affect the outcome of many criminal trials. Finally, this Comment will argue that as a result of these critical functional differences, Williams and its progeny should be overruled, and the size of all state and federal criminal juries restandardized to twelve members in all non-petty criminal cases.

The system of trial by jury is again at the forefront of America's collective consciousness; a subcommittee of the judicial Conference of the United States(10) is considering a change to the Federal Rules of Civil Procedure that would require the impaneling of twelve-person juries in all civil cases tried in federal courts.(11) The Federal Rules of Criminal Procedure already require twelve-person juries,(12) but jury-size requirements in state courts, which hear the vast majority of criminal cases, remain widely disparate.(13) Additionally, the recent trials of Rodney King and O.J. Simpson thrust discussions about juries and jury functions back into the spotlight and provoked many questions about the representative nature of juries, the quality of deliberations, the influence of minority jurors, and the general integrity of the jury process. With such considerations in mind, it is both timely and appropriate to reexamine the Court's controversial treatment of jury size in Williams and its progeny.

1. A REVIEW OF SUPREME COURT RULINGS ON JURY SIZE

   In Duncan v. Louisiana,(14) the defendant was convicted of simple battery after he was denied a jury trial pursuant to a provision in the Louisiana Constitution that limited jury trials in criminal actions to cases in which capital punishment or imprisonment at hard labor might be imposed.(15) Duncan, who was sentenced to sixty days imprisonment, alleged on appeal that his case was governed by the Sixth Amendment's guarantee to trial by jury(16) as incorporated by the Due Process Clause of the Fourteenth Amendment.(17)

   In considering Duncan's incorporation argument, the Court considered whether the right to trial by jury was among the "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions."(18) Ruling that trial by jury in criminal cases was a fundamental principle of American jurisprudence, the Court held that "the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which--were they to be tried in a federal court--would come within the Sixth Amendment's guarantee."(19) Holding that Duncan's misdemeanor was such a case, the Court ruled that the state court's decision to deny Duncan's demand for a jury trial violated the Constitution.(20)

   In explaining its decision, the Court enunciated the first of the two stated purposes of the modern-day criminal jury:

   A right to jury trial is granted to criminal defendants in order to prevent

   oppression by the Government .... Providing an accused with the right

   to be tried by a jury of his peers gave him an inestimable safeguard

   against the corrupt or overzealous prosecutor and against the

   compliant, biased, or eccentric judge. If the defendant preferred the

   common-sense judgment of a jury ... he was to have it .... The deep

   commitment of the Nation to the right of jury trial in serious criminal

   cases ... qualifies for protection under the Due Process Clause of the

   Fourteenth Amendment, and must therefore be respected by the

   States.(21)

   Although the Duncan Court did not explicitly define "serious criminal cases" and declined to draw a bright-line distinction between petty offenses and serious crimes,(22) the Court held that because simple battery was punishable in Louisiana by as much as a two-year prison term, it was a nonpetty offense requiring a jury trial.(23)

   When Duncan incorporated the right of trial by jury in criminal cases into the Fourteenth Amendment, the Court implicitly assumed that these state criminal juries, like their federal counterparts, would have twelve-member panels.(24) Two years later, however, the Court in Williams would decide differently.

   In Williams, the petitioner was charged with robbery and moved for trial before a twelve-person jury instead of the six-person jury permitted by a Florida statute in all noncapital criminal cases.(25) The trial court denied Williams's motion. He was tried before a jury of six, convicted, and sentenced to life imprisonment. Williams challenged the conviction on Sixth Amendment grounds, claiming that his constitutional right to trial by jury entitled him to a twelve-person jury instead of the six-member panel provided by Florida law.(26)

   By a five-to-three majority,(27) the Court in Williams held that although earlier cases assumed that the Sixth Amendment right to trial by jury required a jury of twelve,(28) "the 12-man panel is ... not a necessary ingredient of `trial by jury.'"(29) The Court found that Williams's trial before a six-person jury was constitutional. Writing for the majority, justice White proffered two justifications for the Court's conclusion.

   First, although justice White conceded that "[i]t may well be that the usual expectation [of the Framers] was that the jury would consist of 12,"(30) he noted that there was no historical evidence suggesting that the Framers intended the twelve-person jury to be an "indispensable component of the Sixth Amendment."(31) As such, Justice White concluded that "[n]othing in this history suggests, then, that we do violence to the letter of the Constitution by turning to other than purely historical considerations to determine which features of the jury system, as it existed at common law, were preserved in the Constitution."(32)

   With the "yoke of history"(33) thus removed, Justice White noted that the real inquiry should examine the functions of the twelve-person jury in light of the primary purposes of the jury trial.(34) Discussing the purpose of the modern-day jury,(35) Justice White determined that:

   [T]he essential feature of a jury obviously lies in the interposition

   between the accused and his accuser of the commonsense judgment of

   a group of laymen, and in the community participation and shared

   responsibility that results from that group's determination of guilt or

   innocence. The performance of this role is not a function of the

   particular number of the body that makes up the jury. To be sure, the

   number should probably be large enough to promote group

   deliberation, free from outside attempts at intimidation, and to provide

   a fair possibility for obtaining a representative cross-section of the

   community.(36)

   Concluding that (1) a six-person jury would not suffer increased susceptibility to intimidation and would be as effective at deliberation, (2) the differences between six- and twelve-person juries in providing fair cross-section of the community would be negligible, and (3) the jury's reliability as a factfinder would not decrease with its reduction in size, Justice White dismantled what previously was construed as one of the most secure and axiomatic protections of American law.(37)

   Concurring in the result in Williams, Justice Harlan accused the majority of diluting "the settled meaning of the federal right to a trial by jury."(38) Although Justice Harlan sided with the majority in holding that the "right" to a twelve-person jury did not extend to state criminal trials, he claimed this was because Duncan was wrongly decided.(39) Justice Harlan adamantly believed that the Sixth Amendment guaranteed a right to a trial by a jury of twelve;(40) he just did not believe that the Sixth Amendment applied to the states through incorporation.(41)

   In the years following the...