The 12 Person Jury Should Be Recognized As a Right
The Framers of the Constitution probably saw no need to define the characteristics of a jury when they guaranteed criminal defendants the right to a jury trial because it was commonly understood at the time that a jury consisted of twelve persons who needed to arrive at a unanimous verdict to find guilt. In 1970, however, the Supreme Court decided that six jurors were good enough, although it later concluded that five were insufficient. Despite that decision, 47 states and the federal government still require a twelve person jury in serious felony trials.
William Bolivar Deltoro, convicted of sexual assault by a Florida jury of six and sentenced to life, is asking the Court to reconsider the 1970 decision. As Steven Calabresi and Michael Saks argue, the Court should take the case and correct its erroneous precedent.
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Yet the social science that existed in 1970 clearly showed that smaller juries reduced the capacity for cross-sectional representation, and that depriving a dissenter of potential allies would reduce a person's ability to stand up to the pressure of a majority of fellow jurors. Subsequent studies raised similar doubts about the court's other conclusions about the effects of reduced size.
Juries are the circuit breakers that prevent the government from punishing the innocent. Given the unanimity requirement, the more individuals who serve on the jury, the less likely is a guilty verdict when the evidence supporting a conviction is questionable. The twelve person jury is a critical safeguard against wrongful convictions -- and as readers of this blog well know, even twelve jurors often get it wrong.
The number twelve wasn't written into the text of the Constitution, but neither was the unanimity requirement or the phrase "proof beyond a reasonable doubt." Given the importance the Framers placed on jury trials (Jefferson once said that if he had to choose between the people's right to an elected legislature and the right to a jury trial, he would keep the jury right), it is inconceivable that they would have believed the power of a jury should be diminished by shrinking it. The Court should take Deltoro's case, and this time the Court should get it right.
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