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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  • Display: Sort:
    totally agree (5.00 / 1) (#1)
    by txpublicdefender on Tue Jan 06, 2009 at 03:22:16 PM EST
    Frankly, right now, I fear for the unanimity requirement, which would be an absolute disaster.  I once served on a civil, six-member jury.  A verdict required only 5 votes.  After three days of trial, we went back to deliberate, they picked me as foreperson because I was a lawyer, and then promptly out-voted me on the first vote.  No requirement for unanimity meant that we didn't even discuss the reasons why I felt like the verdict should go the other way.  We barely discussed the evidence at all.  I left feeling very discouraged about the process (not to mention my personal concern about my lack of ability to persuade jurors even when I was in the jury room, but that's a whole other issue!).

    I have a legal theory question (none / 0) (#2)
    by Salo on Tue Jan 06, 2009 at 05:15:59 PM EST
    what is that legal principle, where laws (or rights not actually mentioned in the constitution or American statutes or BOR,) but are found in things like the Magna Carta are still a part of modern law?

    something like pre____.  I'm drawing a blank.

    Six versus twelve (none / 0) (#3)
    by diogenes on Tue Jan 06, 2009 at 09:12:00 PM EST
    I bet that a lot more guilty people are freed by a twelve man jury then convictions of the innocent are prevented.  And lots more single outliers wanting acquittal causing hung juries/retrials or plea bargains.  
    Maybe some of the public defenders on this site can say how many of their clients are innocent of the charges and how many, if innocent of the particular charge, are really guilty of many other crimes for which they weren't caught.

    High Wind in Jamaica (5.00 / 1) (#4)
    by ytterby on Wed Jan 07, 2009 at 08:40:18 AM EST
    Great movie about a guy who was wrongly convicted of being a pirate and sentenced to hang:

    "But I'm innocent!"

    "Oh come now, my good man. Surely you're guilty of something!"

    Do we really want to go there?


    did you get lost? (none / 0) (#5)
    by txpublicdefender on Wed Jan 07, 2009 at 01:13:50 PM EST
    I think you're on the wrong site.

    Just trying to make the point (none / 0) (#6)
    by ytterby on Thu Jan 08, 2009 at 07:24:41 AM EST
    that we don't want to get into the habit of sending people to jail for crimes they MIGHT have committed