How Many People Should Be on a Jury?
We’ve written before about the importance of studying legal history. Sometimes that can lead us down unusual ancient rabbit holes. Consider, for example, the Prytaneion court of ancient Athens, which would hold trials for inanimate objects involved in accidental death. [1] For example, a statue of Theagenes of Thasos was put on trial after it fell over and killed a man. After the statue was convicted, it was thrown into the sea as a punishment for its crime. [2] This seems insane and we’re certainly not suggesting that Kings County Supreme start up a Prytaneion part. But it does illuminate how Athenians saw the religious significance of trials as a method to purge the community of the taint of crime. This meant killing or punishing the wicked, but also eliminating objects thought to be cursed, haunted, or simply unlucky.
But as interesting as ancient law is, it’s also helpful to look at more recent history. It’s a common human failing to treat any custom that predates us as timeless, even if, in the scheme of things, it might be a recent invention lacking any credible claim to tradition. If you grew up in the 1970s or 1980s, it’s easy to treat something like Miranda warnings as a bedrock tenant of American constitutional law. But Miranda v. Arizona [3] was only decided in 1966, well within living memory. Thinking of Miranda warnings as set in stone obscures important truths about them – for the better part of two hundred years they didn’t exist and the decision could easily have gone differently or be overruled today. And perhaps most critically, equally sweeping alterations to our legal landscape could happen tomorrow, changes that younger lawyers would quickly view as immovable pillars of American law.
What’s a feature of trials, at least in the federal system, that’s been totally transformed even more recently than Miranda? The number of people who sit on a jury. In just the last few decades, hundreds of years of practice and precedent firmly fixing the size of a jury at twelve has been almost completely erased. But how did that happen? And how many folks ought to sit on a jury?
As we’ve discussed before, the origins of the jury trial, while not a complete mystery, are obscured by a combination of incomplete records, substantial regional and jurisdictional variation, and the unfortunate habit of the courts to say things about legal history that simply aren’t historically accurate. But the broad strokes are fairly clear. A combination of dissatisfaction with or clerical prohibition of older modes of proof, coupled with increasing royal control over the administration of local justice led over time to the evolution of a “juror” in the common law courts. [4] This juror was a participant in trial who was not quite a witness, not quite a compurgator or oath-helper, but borrowed authority from those older roles to decide disputed facts.
While in its earliest forms a jury might have varied substantially in size, by the 15th century it became essentially fixed at twelve members. [5] By the time of the American founding, juries of twelve men were regularly empaneled in all of the colonies. [6] And right of citizens to try cases in front of a jury of twelve was considered sacrosanct. Indeed, one of the serious legal complaints raised against in the king during the revolution was his use of “vice admiralty courts” to try colonists for crimes without a jury. [7]
Article III of the Constitution guaranteed that “The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury” but said nothing about civil suits. This omission was deeply controversial. Numerous Anti-Federalist writings counselled against ratification on these grounds. While the Constitution was ultimately ratified, at least seven states demanded that an amendment guaranteeing the right to a civil jury trial be considered in connection with their ratification. [8] This was done with the Seventh Amendment, which guarantees that “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” But notably, neither the Constitution itself, nor the Sixth or Seventh Amendments addressing jury trials, specifically mentions the number of people who must serve on the jury.
Would a person at the time have understood a jury to require twelve people? It had been the practice for hundreds of years. And several states, in interpreting jury rights under their own constitutions, held that a jury meant exactly twelve people. [9]
The United States Supreme Court first addressed the issue in Thompson v. Utah.[10] The defendant, initially tried when Utah was a territory subject to federal jurisdiction, appealed his conviction by a jury of eight. The Supreme Court reversed, holding that “the jury referred to in the original Constitution and in the Sixth Amendment is a jury constituted, as it was at common law, of twelve persons neither more nor less.”
That would seem fairly definitive, and it was for another seventy years. But then in 1970, Williams v. Florida [11] came to the Supreme Court. While acknowledging Thompson along with hundreds of years of historical precedent, the majority there nevertheless held that the Constitution does not require a twelve-person jury and that six will do. Why? Three reasons, none terribly persuasive.
First, the court concluded that the twelve-person number was “a historical accident, unrelated to the great purposes which gave rise to the jury in the first place.” This was an odd thing for a court to say, as numerous features of the constitutional order (to say nothing of the common law) could easily be deemed “historical accidents” and yet receive no lessor respect or enforcement in the courts.
Second, the court gave great importance to the fact that the framers had considered (but not included) a vicinage requirement in the Sixth Amendment despite discussing it. The court took this to mean that not all common features of the then-existing jury system were assumed to be included in the Constitution’s jury guarantees. But this is also an odd argument, as obviously some of the existing features were. Otherwise, a guarantee of “trial by jury” would be meaningless – Congress could simply redefine a jury as a judge or a coin flip.
Third, the court claimed, citing some “studies” that “there is no discernable difference between the results” of a six-person jury and a twelve-person jury. Leaving aside the general propriety of constitutional questions being decided by 1970s era social science, the “studies” cited by the Williams court barely qualified as social science at all. [12] Three were reports of courtroom officers and their casual observation of six person juries. One was literally an article about the cost savings that cutting juries from twelve members to six could achieve. Indeed, Hans Zeisel, a social scientist who authored one of the studies, later claimed that the court had badly misinterpreted his findings. [13]
While Williams dealt with criminal trials, the writing was clearly on the wall for civil trials too. The Supreme Court applied the same blend of “history” and “social science” to the Seventh Amendment three years later in Cosgrove v. Battin [14] holding that civil jury trials did not require a jury of twelve either. Despite breaking with hundreds of years of precedent, this change was enthusiastically embraced by the United States Judicial Conference and the district courts. Even before the Federal Rules of Civil Procedure could be changed to reflect the new constitutional order, districts began to alter their local rules to provide for smaller juries anyway. [15] By 1978, 80 of the 95 districts had done so, even though Fed. R. Civ. P. 48 still prohibited juries with less than twelve members. [16] Bending to the reality “on the ground” Congress ultimately amended Rule 48 in 1991 to its current formulation, which permits civil juries ranging in size from 6-12 members:
Number of Jurors. A jury must begin with at least 6 and no more than 12 members, and each juror must participate in the verdict unless excused under Rule 47(c).
While popular with the courts, there was pushback from the bar. In the mid 1990s, the Civil Rules Advisory Committee recommended revising Rule 48 to restore the right to twelve-person juries in civil trials. But despite lobbying by organizations such as the American College of Trial Lawyers, the Judicial Conference rejected the change. [17] In the years since, twelve-person juries have grown progressively rarer in federal court. By 2018, they made up less than 12% of civil jury trials. [18] There are some hold-outs—jurisdictions like the district of Minnesota where twelve-person juries are more common. But otherwise the reduction in civil jury size has been sweeping and thorough.
Does it make a difference? While the Williams court didn’t think so, scoffing at defenders of the traditional jury size as “mystics,” an enormous amount of academic literature and social science research suggests otherwise. Study after study has provided evidence showing that smaller juries are less predictable, more likely to forget or misinterpret key evidence, more likely to return outlier verdicts (either for the plaintiff or the defendant) and substantially less demographically representative of the broader venire. [19] While smaller juries are less likely to deadlock in criminal trials, it is not clear that this is a positive result, and deadlocks are exceedingly uncommon in civil cases with any jury. For this reason, there have been periodic efforts to convince the federal courts to roll-back the change. All have failed.
Why? The official reasons from the Judicial Conference usually turn on the time and money consumed by empaneling larger juries. But one could also consider looking deeper at judicial attitudes toward juries and the ways they color the analysis. For example, when the state of Georgia was considering moving from twelve-person juries to six in its state courts, a group of researchers surveyed all of the Georgia trial court judges about the proposed change. 64% were in favor, although the 36% opposed were quite adamant about the dangers of the change.[20] The researchers also surveyed the “Yes” judges about their reaction to the argument that reducing jury size would lead to more unpredictable results. While many disagreed with the argument, a majority responded with some variation of “Yes, but juries are always random, so who cares.” [21] Viewed in this light, it is not surprising that much of the bench would favor smaller juries— if you view the institution as little more than a coin-flip, there is no reason not to flip a smaller, cheaper, faster coin that is less likely to land on its edge.
But assuming that (like us) you do not view juries as a random number generator, how should you approach jury size? The literature is clear that larger juries make more predictable, more carefully considered decisions and have less outlier verdicts. If that is what you are looking for, you should push the court for a jury of twelve and arm yourself with the relevant literature to support the argument. If, on the other hand, an outlier verdict is your client’s only shot, you may be happier with a smaller jury (though perhaps settlement should be a consideration as well). But regardless of whether you seek to avoid variance or court it, you should be aware that there are differences, and that Rule 48 does not mandate a smaller panel. Provided that you can convince the court, your client can benefit from the same twelve-person jury that, until just a moment ago was considered an absolute right.
[1] Paul Schiff Berman, Rats, Pigs, and Statues on Trial: The Creation of Cultural Narratives in the Prosecution of Animals and Inanimate Objects, 69 N.Y.U. L. Rev. 288, 295 (1994).
[2] Miguel Tamen, Kinds of Persons, Kinds of Rights, Kinds of Bodies, 10 Cardozo Stud. L. & Literature 1, 3 (1998).
[3] 384 U.S. 436 (1966).
[4] Sir. Frederick Pollock & Frederick William Maitland, The History of English Law Before the Time of Edward I – Volume I, p. 147-153 (1898).
[5] Richard S. Arnold, Trial by Jury: The Constitutional Right to A Jury of Twelve in Civil Trials, 22 Hofstra L. Rev. 1, 8 (1993) (“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.”).
[6] Id. at 13-14.
[7] Id. at 14.
[8] Stephan Landsman, The Civil Jury in America: Scenes from an Unappreciated History, 44 Hastings L.J. 579, 600 (1993).
[9] Richard S. Arnold, Trial by Jury: The Constitutional Right to A Jury of Twelve in Civil Trials, 22 Hofstra L. Rev. 1, 20 (1993).
[10] 170 U.S. 343 (1898).
[11] 399 U.S. 78 (1970).
[12] Robert H. Miller, Six of One Is Not A Dozen of the Other: A Reexamination of Williams v. Florida and the Size of State Criminal Juries, 146 U. Pa. L. Rev. 621, 651-2 (1998).
[13] Id.
[14] 413 U.S. 149 (1973)
[15] Patrick E. Gigginbotham, et al., Bringing Back the Twelve-Person Civil Jury, Judicature Vol. 104 No. 2 (Summer 2020).
[16] Id.
[17] Id.
[18] Id.
[19] For a review of the social science literature, see Dennis J. Devine et al., Jury Decision Making 45 Years of Empirical Research on Deliberating Groups, Psychology, Public Policy, and Law, Vol. 7, No. 3. p.670 (2001) (“Given the clear implications of probability theory and the complementary empirical findings of J. H. Davis et al. (1997), 6-person juries seem more likely to exhibit greater variability in their outcomes than do 12-person juries.”).
[20] R. Perry Sentell, Jr., A Six-Member Civil Jury in Georgia? The Trial Judges Weigh in, 54 Mercer L. Rev. 67, 79 (2002).
[21] Id. at 88-90.
