Ask a stranger on the street whether United States citizens have a right to a trial by jury, and they will probably respond, “yes, the Constitution guarantees it.”  Some might even tell you the required number of people sitting on any given jury is twelve.  Inherited from the English Common Law, the right to a jury of twelve stems back to the thirteenth century.[i]  Theories on why the number came to be fixed at twelve are numerous.  Some argue the number is based on the structure of English courts during the Middle Ages; others speculate the number is based on the Twelve Apostles, the Twelve Tribes of Israel, or the Twelve Houses of the Zodiac.[ii]  Regardless of the number’s origin, scholars agree the Founding Fathers intended a jury comprised of twelve, not six.  However, the Sixth Amendment to the U.S. Constitution, which guarantees defendants the right to trial by jury, does not prescribe the required number of jurors.[iii]  While most states use juries of twelve for criminal trials, some states use only six, including Florida.[iv] No criminal trial should be decided by a jury of less than twelve, and with the case, Khorrami v. Arizona currently pending cert, the Supreme Court has the chance to restore the original meaning of the Sixth Amendment and solidify twelve-member jury rights for criminal defendants.[v]

In 1898 the Supreme Court sided with the Founding Fathers when deciding Thompson v. Utah, holding the Sixth Amendment guarantees defendants the right to a trial by a jury of twelve.[vi]  Following Thompson, the term “jury” was synonymous with the term “twelve.”  The Supreme Court repeatedly recognized that “there can be no doubt” that “a jury composed, as at common law, of twelve jurors was intended by the Sixth Amendment to the Federal Constitution.”[vii]  However, in 1970, despite Court precedent and centuries of consensus, the Supreme Court in Williams v. Florida declared a twelve-person jury a “historical accident.”[viii]  The Court held that juries of less than twelve members in serious felony cases are Constitutional and do not violate the jury’s purpose of providing a cross-section of the community.[ix]  In doing so, the Supreme Court paved the way for states to constitutionally reduce jury size giving rise to the six-person jury we often see and know today.

Fast forward forty years to a case called Khorrami v. Arizona, currently pending cert.  The Petitioner, Ramin Khorrami, is asking the Supreme Court to consider whether the Sixth Amendment requires a 12-person jury for a felony conviction.[x].  Following Khorrami’s conviction of two felonies by an eight-person jury in Arizona state court, Khorrami appealed the decision alleging a violation of his Sixth Amendment jury trial right.[xi] He argues that the Sixth Amendment guarantees the right to a jury verdict of no less than twelve.[xii]  In his petition, Khorrami relies partly on a 2020 Supreme Court decision, Ramos v. Louisiana, in which the Supreme Court held that the Sixth Amendment requires a unanimous jury verdict to convict.[xiii]  The Court reasoned that the meaning of the term “trial by an impartial jury trial” should be determined by considering its meaning at the time of the Sixth Amendment’s adoption.[xiv]  Khorrami argues, via the Court’s reasoning in Ramos, that the Sixth Amendment requires a jury consisting of twelve because, at the time of adoption, the Framers understood the jury right required twelve-member juries. Khorrami also urges the Supreme Court to overturn Williams, arguing its decision hinges on “now-discredited empirical research.”[xv]  Williams relied on so-called experiments rather than empirical studies as initially thought, providing unsupported conclusory statements at best.[xvi]

 So why should we care whether a jury is made up of twelve or six members?  Trial by jury is the foundation of the American judicial system.  Though imperfect, the U.S. jury system helps safeguard the rights of the accused, and juries help to protect our fundamental liberties and freedoms.  Research suggests that twelve-member juries are more likely to include diverse viewpoints and better allow for diversity in demographic categories such as race, sex, and age.[xvii]  Larger twelve-member juries can accurately recall more evidence than six-member juries and rely on more probative information.[xviii]  Dissenting jurors on larger juries are better able to withstand pressure to conform to the majority during jury deliberation.  The Utah Association of Criminal Defense Lawyers (“UACDL”) claims juries of twelve members are superior to juries of six members, arguing fewer numbers increase the risk the jury will be comprised of a community’s pro-conviction-biased members.[xix]  In addition, a jury of six is less likely to accurately represent the larger community—its collective life experience and wisdom are half that of a jury of twelve.

Should the Supreme Court choose to hear this case this term, it will have the opportunity to correct its error in Williams, restore the original meaning of the Sixth Amendment, and provide criminal defendants their vital right to a fair and impartial jury of twelve members.

[i] See Shackley F. Raffeto, Common Law set basis for jury trials, HonoluluAdvertiser.com (May 1, 2005), https://www.courts.state.hi.us/docs/docs4/clsbfjt050105.pdf.

[ii]See id.

[iii] See U.S. Const. amend. IV.

[iv] See Williams v. Florida, 399 U.S. 78 (1970) (holding Florida’s six-member jury statute satisfies the Sixth Amendment).

[v] Petitions We’re Watching, SCOTUSBlog, https://www.scotusblog.com/case-files/petitions-were-watching/ (last visited Oct. 9, 2022).

[vi] Thompson v. Utah, 170 U.S. 343, 355 (1898).

[vii] Maxwell v. Dow, 176 U.S. 581, 586 (1900).

[viii] Williams v. Florida, 399 U.S. 78, 89 (1970).

[ix] See id. at 100-03.

[x] See Petition for Writ of Certiorari, Brief of Petitioner at 3, Khorrami v. Arizona, 2022 U.S. S. CT. BRIEFS LEXIS 1913 *.

[xi] See id.

[xii] See id.

[xiii] See id.; see also Ramos v. Louisiana, 140 S. Ct. 1390, 1410 (2020).

[xiv] See id.

[xv] See id.

[xvi] Alisa Smith et al., In Honor of Walter O. Weyrauch: The Case for Overturning Williams v. Florida and the Six-Person Jury: History, Law, and Empirical Evidence, 60 FLA. L. REV. 441, 445-56 (2008).

[xvii] Jury Size: Does it matter?, National Center for State Courts, https://www.ncsc.org/newsroom/at-the-center/2022/jury-size-does-it-matter (last visited Oct. 9, 2022).

[xviii]Marc W. Pearce et al., Is a jury of six as good as one of 12?, 40 Monitor On Psych. 32, (2009), https://www.apa.org/monitor/2009/07-08/jn.

[xix] Brief of Amicus Curiae Utah Association of Criminal Defense Lawyers in Support of Petitioner, Khorrami v. Arizona, 2022 U.S. S. CT. BRIEFS LEXIS 2186*.