Six happy jurors, pt. 2

Is a 12-Person Jury an Anachronism?

The Supreme Court decisions in Williams and Colgrove spurred a plethora of research and articles protesting smaller juries. (Williams v. Florida, 399 U.S. 78, 103 (1970); Colgrove v. Battin, 413 U.S. 149, 158 (1973).) The decisions have been criticized for their reliance on six "flawed" experiments to determine that there were no significant differences between six and 12-person juries. American College of Trial Lawyers, Report on the Importance of the Twelve-Member Civil Jury in the Federal Courts 16, 24 (2001). However, new research proves that smaller juries not only equal 12-person juries in their ability to be reliable fact-finders, they are better than 12-person juries at achieving participation from all group members and making consensual decisions.

Twelve-person jury advocates claim that larger juries are expected to include more minorities and recall more evidence. Lawyers, supra, at 2628. They contend a 12-person jury is more likely to provide a representative cross-section of the community than a six-person jury. A 1974 statistical study of minority representation found that a community with a 10 percent minority population would have more minorities represented on a 12-person jury. Richard S. Arnold, Trial by Jury: The Constitutional Right to a Jury of Twelve in Civil Trials, 22 Hofstra L. Rev. 1, 30 (1993). The study found that minorities were represented on 12-person juries 72 percent of the time and six-person juries only 47 percent of the time. Id.

What these claims do not address is the question of which characteristics constitute a "minority." It would be practically impossible to include each religion, gender, ethnicity and educational degree in one 12-member jury. In addition, while there may be a smaller chance of having minorities on a six-person jury, minorities do not necessarily have minority views. See Kenneth S. Klein & Theodore D. Klastorin, Do Diverse Juries Aid or Impede Justice?, 1999 Wis. L. Rev. 553, 558 (1999). Jurors are instructed to listen to all evidence and attempt to come to an objective decision. Predicted opinions of certain minority groups can easily differ from their actual viewpoint when confronted with evidence and arguments made by counsel. Adam M. Chud & Michael L. Berman, Six-Member Juries: Does Size Really Matter?, 67 Tenn. L. Rev. 743, 752 (2000). Furthermore, the petit jury is not required to represent all the different viewpoints of the community; the jury pool is. Id. at 750. As the Williams court points out, even a 12-person jury cannot adequately represent all the different voices in the community, especially with the use of peremptory challenges. 399 U.S. at 102. It is the author's experience that language barriers (both real and feigned) excuse far more racial "minority" jurors than any other single reason. The second reason is the deliberate attempt to exclude certain minorities in the voir dire process that an attorney might assume would be favorable to the other side. The first problem might be addressed by requiring more extensive language proficiency for citizenship and emphasizing the duty to serve as jurors in the citizenship process. The second problem, although partially addressed by Wheeler motions, may be addressed by having a more severe sanction than that imposed by the Wheeler decision, i.e., more severe than merely disqualifying the panel.

Advocates of 12-person juries see them as a safer bet. The 1994 Committee on Rules of Practice and Procedure of the Judicial Conference found that 12-person juries tend to be more stable and deliberative. Margo Hunter, Improving the Jury System: Reducing Jury Size, Public Law Research Institute (July 23, 2012), www.uchastings.edu/public-law/plri/spr96tex/jurysiz.html. This is in part because they believe there is more discussion in larger groups than in smaller ones since minority viewpoints are more likely to be present. Arnold, supra, at 31. A few studies show that verdicts become more unpredictable as the jury size is reduced because a dominating personality is more likely to influence a six-person jury than a 12-person jury. Id. However, the National Center for State Courts' study of Los Angeles County in 1990 found no real difference in accuracy between the verdicts reached by eight and 12-person juries. Id. Also, deliberation with a 12-person jury is actually more likely to be dominated and led by a few jurors. Michael J. Saks, Jury Verdicts: The Role of Group Size and Social Decision Rule 12 (1977). In the phenomenon known as the spiral of silence, those who perceive their opinion as a minority opinion become less vocal in order to avoid isolation. Chud & Berman, supra, at 757. A 2001 study found that a few people in groups of 10 or more were more likely to keep silent. Wilson da Silva, Seven the Ideal Number for Juries, ABC Science (Sept. 10, 2001), www.abc.net.au/science/articles/2001/09/10/360610.htm. Discussions were more likely to deteriorate into monologues where each person takes a turn speaking. Id. A balanced consideration of the issues became more difficult as small cliques dominated the groups. Id. In a small group where people feel more comfortable to speak their minds, it seems less likely that a dominating personality would influence the jury's decision. Deliberations take place on equal ground when there is a conversational flow with occasional interruptions from other members of the group. Also, smaller groups are more efficient at conducting deliberations. While they may take a shorter amount of time, it does not mean they are any less deliberative than larger groups.

Advocates of 12-person juries also question whether smaller juries save time. Lawyers, supra, at 28, 3233. They claim that the only time that is saved with smaller juries would be during voir dire and the deliberation process. Id. at 31. However, the California Code of Civil Procedure requires "liberal and probing" examination of the jurors in order to discover bias or prejudice with regards to the particular case. California Code of Civil Procedure Section 222.5 (West 2012). If counsel takes the same amount of time to question each juror, voir dire will take less time with fewer jurors. Even if voir dire takes the same amount of time as with a 12-person jury, the quality of the jury will increase because counsel can question each juror more thoroughly.

Furthermore, advocates argue that 12-person juries are more predictable. They claim that jury predictability fosters more pre-trial settlements. Lawyers, supra, at 28. One study notes that with a jury of 12, the settlement rate was 41.2 percent versus 28.8 percent for juries of six. Id. at note 162. While this study concludes that settlement rates decrease for smaller juries, juries are inherently unpredictable. Settlements occur because the trial date is approaching, not because there is a 12-person, rather than a six-person jury.

Jury Trials in Misdemeanor Cases

Twenty-two of the 51 jurisdictions in the U.S. (50 states plus the District of Columbia) use juries of fewer than 12 in misdemeanor trials. David B. Rottman & Shauna M. Strickland, State Court Organization 2004 228-237 (2006), bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=1204. Georgia currently utilizes six-person juries in all misdemeanor jury trials. Richard W. Creswell, Georgia Courts in the 21st Century: The Report of the Supreme Court of Georgia Blue Ribbon Commission on the Judiciary, 53 Mercer L. Rev. 1, 27 (2001). Texas also requires only a six-person jury for all misdemeanor offenses. Judge Brian L. Owsley, Issues Concerning Charges for Driving While Intoxicated in Texas Federal Courts, 42 St. Mary's L. J. 411, 430 (2011).

The constitutional due process right to a jury trial in misdemeanor charges only applies to cases in which the penalty exceeds six months in jail. See Duncan v. Louisiana, 391 U.S. 145, 159-60 (1968). This right does not cover certain minor misdemeanor charges because the Framers believed the possible results of false convictions in these cases to be "insufficient to outweigh the benefits." See id.

In the District of Columbia, the Misdemeanor Streamlining Act of 1994 reduced the maximum period of incarceration for some misdemeanor charges to 180 days. See Foote v. U.S., 670 A.2d 366, 369 (D.C. Ct. App. 1996). As a result, these misdemeanor defendants no longer have any right to a jury trial. The law helped the district to significantly reduce its jury trial caseload. T. Ward Frampton, The Uneven Bulwark: How (and Why) Criminal Jury Trial Rates Vary by State, 100 Cal. L. Rev. 183, 203 (2012). One defendant in Washington, D.C. attempted to challenge the constitutionality of this act, stating that it violated his due process rights. Johnson v. U.S., 700 A.2d 240, 243-44 (D.C. Ct. App. 1997). However, the court found that the Misdemeanor Streamlining Act did not violate any constitutional rights of misdemeanor defendants. See id.

In California, it is well settled that when a defendant is charged with a misdemeanor, he or she is entitled to a jury trial, if desired. Mills v. Municipal Court, 10 Cal. 3d 288, 298 (1973). This state right extends to misdemeanor charges that do not even carry the possibility of a jail sentence, such as marijuana possession. See id. With such relatively minor stakes at issue, should these types of disputes require the deliberation of 12 jurors to determine guilt?

It is clear that California must give all misdemeanor defendants the right to a jury trial. However, no California cases have interpreted the state's constitution regarding the size of these juries. The same arguments made above regarding civil juries are applicable to misdemeanor juries. It is within the Legislature's authority to reduce the number of jurors to six in misdemeanor trials. California would free up a large portion of its precious resources if the court used six jurors instead of 12 in misdemeanor cases.

Conclusion

The erosion of the civil jury in terms of numbers is beyond dispute. The expansive interpretation of the Federal Arbitration Act, along with legal and economic considerations, certainly has played major roles in this development. However, there has not been a huge public outcry as a consequence of the diminished role of the jury trial in resolving civil disputes. It is highly possible, if not probable, that the majority of the public views their roles as arbiters as unimportant or, more disconcertingly, wasteful of their time.

The frequent complaint of wasting an alternate juror's time (since the alternate did not have the opportunity to deliberate) would not exist if the law provided that a judge had the discretion to have a jury of not less than eight or six. Then, every juror who was empaneled could deliberate, even if more than that number were chosen. It is assumed that a judge would have at least one more than the minimum number chosen at the outset of the case so that if a juror were to be excused, the minimum number would still be available.

The societal costs of loss of income for jurors (whose pay was not reimbursed by their employers) or employers (who front the costs of jury service for their employees) would decrease with a smaller jury. There would also be an incremental cost savings for the court in terms of monies saved for summoning jurors (postage, paper handling, and administrative costs), size of civil courtrooms, juror assembly rooms, time to voir dire all potential jurors, and the like.

The strength of the jury system in combining the life experiences and knowledge of a number of citizens to find the true facts and applying these to the law as instructed by the judge are not diminished by decreasing the size of a jury to eight, or even six. Studies on such jury deliberations suggest that jurors are more engaged in discussions in groups smaller than 10. Moreover, the jurors in smaller juries would know that their vote is more influential than in a larger jury, and if the court had discretion to allow all jurors to participate in the jury deliberations, there would be no alternate jurors. Hopefully, this would make jury service more palatable, or at least less distasteful. Perhaps jurors would even pay closer attention to the evidence and instructions.

The increasing costs associated with a smaller jury in terms of juror fees also weigh in favor of a smaller jury. Fewer jurors mean a smaller jury deposit. With all court fees increasing, a jury half in number would halve the jury deposit. This could make jury trials more accessible to more litigants.

The Code of Civil Procedure in California states that for civil and misdemeanor cases the jury may consist of 12 or fewer jurors if the parties agree. California Code of Civil Procedure Section 220 (West 2012). The right to a jury trial for civil disputes is a fundamental constitutional right enjoyed by not only citizens, but all who have access to our court systems. A decrease in the number of jurors in a civil trial will make the summons to a civil jury trial to the juror/citizen more meaningful in that it assures the civil juror that, once selected, his or her voice will always be heard. Moreover, the decrease in juror fees will make such trials more accessible to more litigants. The verdict is clear: let's reduce the size of civil and misdemeanor juries.

This article first appeared in Orange County Lawyer, November 2012 (Vol. 54 No. 11), p. 20. The views expressed herein are those of the Author. They do not necessarily represent the views of Orange County Lawyer magazine, the Orange County Bar Association, the Orange County Bar Association Charitable Fund, or their staffs, contributors, or advertisers. All legal and other issues must be independently researched.