Six happy jurors, pt. 1

Because of dire economic conditions, the court system in California is facing drastic cuts. Gov. Jerry Brown's May revision of 2012 calls for the court system to endure $544 million in cuts. The effects of these cuts have already been dramatic and devastating. Los Angeles County has closed 56 courtrooms and laid off numerous employees, including long-time court referees. San Diego has likewise announced the closing of branch courtrooms and the laying-off of 250 employees. Bailiffs in civil courtrooms have been replaced by courtroom attendants in Los Angeles and Orange counties. The court system is in turmoil.

In light of the demands placed upon the court system, this article explores the possibility of reducing the size of civil and misdemeanor juries in California. The historical and legal bases of the 12-person jury are discussed, and the ramifications of such a change are provided.

Historical Perspective of the 12-Person Jury

Scholars are unsure of the origin of the jury system and how it came to be in England, but England had firmly established juries in their legal system by the 1080s. Richard S. Arnold, Trial by Jury: The Constitutional Right to a Jury of Twelve in Civil Trials, 22 Hofstra L. Rev. 1, 5, 7 (1993). The number of jurors on the panels varied. Id. at 7. It was during Henry II's reign that the proper size of a jury panel was set at 12 jurors. Donald C. Shields & John F. Cragan, Justice and the Jury: Issues and Answers 7 (1971). As it is today, the parties were also allowed to agree to fewer jurors. Arnold, supra, at 8.

The U.S. Constitution never expressly stated the number of jurors required in trials. The U.S. court system set a precedent of 12 by following the English jury requirement. American College of Trial Lawyers, Report on the Importance of the Twelve-Member Civil Jury in the Federal Courts 16 (2001).

The precedent was made law when the Supreme Court held in Thompson v. Utah, a grand larceny case, that Utah violated the Constitution by convicting the defendant with only eight jurors. 170 U.S. 343, 344 (1898). The Supreme Court found that the Constitution guaranteed a jury of no fewer than 12 people. Id. at 349. This continued until the precedent was overturned in 1970 with the Supreme Court holding in Williams v. Florida, 399 U.S. 78, 103 (1970). In Williams, a defendant was convicted of robbery by a six-person jury. Id. at 7980. The Supreme Court held that the defendant's Sixth Amendment rights were not violated by Florida's use of a six-person jury. Id. at 103. The Supreme Court stated that the fact that a jury consisted of 12 jurors was nothing more than a historical accident with little significance. Id. at 102. The studies that the Williams court relied upon established there was no significant difference between six and 12 jurors, and that the performance of a jury's duty was not related to the size of a jury. Id. at 101-102. The Williams court concluded that as long as exclusions of minorities were prevented, it was unrealistic that the cross-section for the jury would be significantly diminished when the jury was decreased from 12 to six. Id. at 102.

Colgrove expanded the Williams decision to civil cases, finding it constitutional to employ a six-person jury. Colgrove v. Battin, 413 U.S. 149, 158 (1973). The Colgrove court noted that "much has been written about the six-member jury, but nothing that persuades us to depart from the conclusion reached in Williams." Id. at 159. Nevertheless, there still exists considerable debate between those who want to reinstate the 12-juror requirement and those who support the Williams and Colgrove decisions.

The Use of Civil Jury Trials in Other Jurisdictions

The Seventh Amendment to the Constitution provides the right to a jury trial in civil disputes. Today, juries in civil cases have ceased to play meaningful roles in all countries but the U.S. Neil Vidmar, Foreword, 62 Law & Contemp. Probs. 1, 12 (Spring 1999). Canada has more civil juries than other countries, as well as broad public support, but they play a less significant role than in the U.S. W. A. Bogart, "Guardian of Civil Rights ... Medieval Relic": The Civil Jury in Canada, 62 Law & Contemp. Probs. 305, 305 (Spring 1999). Judges in Canada retain discretion to rule out juries in cases of factual complexity. Id. at 317. There are also different statutory proscriptions against the use of juries among the provinces, including not allowing civil juries at all, to limiting juries to tort claims and recovery of property claims in excess of $10,000. Id. at 306. In England, fewer than 1 percent of civil trials are jury trials. Not only have civil jury trials been limited to libel, fraud, malicious prosecution, and false imprisonment, the right to a jury can be denied by the court. Sally Lloyd-Bostock & Cheryl Thomas, Decline of the "Little Parliament": Juries and Jury Reform in England and Wales, 62 Law & Contemp. Probs. 7, 12 (1999). The U.S. uses jury trials more extensively to settle more types of civil cases than any other country.

The Eroding Right to a Jury Trial

The number of jury trials is quickly decreasing. In California, there was a 15 percent decrease in civil jury trials from 1992 to 2002. Brian J. Ostrom et al., Examining Trial Trends in State Courts: 1976-2002, 1 Journal of Empirical Legal Studies 755, 776 (2004). Aside from the costs associated with jury trials, there are several other legal developments that may help account for this trend.

First, the Federal Arbitration Act has been interpreted broadly to enforce arbitration agreements. Jon O. Shimabukuro, The Federal Arbitration Act: Background and Recent Developments 19 (2002), www.policyarchive.org/handle/10207/bitstreams/1191.pdf. The Act requires parties who have agreed to arbitrate to do so instead of resolving their differences in court. 9 U.S.C. Sections 116 (1947). Arbitration clauses are prevalent in health services agreements, consumer purchases, and employment agreements. Shimabukuro, supra. By enacting this law, the legislature intended to make arbitration agreements valid and enforceable in order to rid litigants of the "costliness and delays of litigation." Id.

Second, small claims jurisdiction, which denies a defendant the right to a jury trial, is expanding. Small claims jurisdiction in California now encompasses disputes up to $10,000. Cal. Civ. Proc. Code Section 116.221 (West 2011). Other states, including Maine, New Hampshire, North Dakota, and Utah, also have raised their small claims jurisdictional dollar limits in order to lessen the number of cases that reach the jury trial stage. National Center for State Courts Research Division, Focus: Small Claims, Gavel to Gavel Blog (Feb. 5, 2010), www.ncsconline.org/D_Research/gaveltogavel/G%20to%20G%204-6.pdf.

Third, the costs of a jury trial are increasing. Budget cuts around the country, particularly in California, have caused court fees to increase. Prior to these price increases, jury deposits were applied to the final cost of actual jury fees. Now, advance jury deposits are required earlier on in the trial process, are not credited to actual jury fees, and are no longer refundable by the court after they are posted. Cal. Civ. Proc. Code Section 631.3 (West 2001).

Fourth, civil procedure rules are creating more barriers to jury trials. For example, California requires litigants to first litigate their cases in nonbinding judicial arbitration if the trial judge determines that the amount in controversy does not exceed $50,000. Cal. Civ. Proc. Code Section 1141.11 (West 2004). Although a party displeased with the arbitration result may seek a trial de novo by a jury, this rule creates additional hurdles for litigants seeking jury trials.

With the right to a jury trial diminishing by way of procedural rules (non-judicial arbitration requirements), substantive law changes (the Federal Arbitration Act), jurisdictional limitations (expansion of small claims jurisdiction), and economic considerations (the increase and nonrefundable nature of jury fees), the question arises: would a civil jury comprised of a smaller number of jurors increase the access of the public to jury trials, or at least slow the trend of the diminishing number of jury trials?

Are 12 Jurors Necessary?

The jury system's purpose in civil trials is "to assure a fair and equitable resolution of factual issues." Colgrove, 413 U.S. at 157. Recent studies have shown that having fewer than 12 jurors still allows the jury to serve its purpose. See, e.g., 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. In fact, smaller groups have been shown to work more efficiently in discussions, and heighten juror satisfaction. Id. The implementation of smaller juries would save the courts, jurors, and their employers both time and money. Having six-person juries would also lower costs and consequently help preserve access to jury trials. Eliminating alternate jurors would also help alleviate burdens on the court and the jurors by distributing the courts' and jurors' resources more efficiently.

Six-person juries are more likely to perform their duties more efficiently while achieving juror satisfaction. Six-person juries engage in more efficient discussions because smaller groups are more effective without organized leadership. Adam M. Chud & Michael L. Berman, Six-Member Juries: Does Size Really Matter?, 67 Tenn. L. Rev. 743, 757 (2000). The dominant juror, usually the one with the jury instructions, has less sway over a small group because jurors are less likely to conform their opinion to others to be a part of the majority. Id. at 760. The jurors with a minority opinion feel less intimidated and are more willing to express their opinions. A 2001 study demonstrated that smaller groups are more successful in achieving participation from all members and gaining consensual decisions. da Silva, supra. Six-person juries are likely to work more efficiently and come to a verdict more quickly. Michael J. Saks, Jury Verdicts: The Role of Group Size and Social Decision Rule 12 (1977). Likewise, jurors are more likely to be satisfied with their contributions in six-person juries because their votes have more weight than in a larger group.

Smaller juries also would save the courts and people both time and money. Larger juries cost society more by compelling more citizens to sacrifice their time and livelihoods to serve on a jury. Chud & Berman, supra, at 753. Smaller juries alleviate this problem because there are substantially fewer juror-hours required when the jury number is reduced from 12 to six. Id. at 754. The court saves in cost by giving fewer number of jurors compensation for their jury service. Id. A 1990 study of Los Angeles County courts found that an eight-person jury had a projected savings of $120 in juror fees per trial. 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. Larger juries also require larger courtrooms for the jury panel as well as the voir dire process. Smaller juries would allow new courtrooms to save costs by saving room.

Collectively, jurors and employers would save a significant amount of time and money if a smaller jury were utilized. Let us assume that the average juror works five eight-hour days per week for an average wage of 15 dollars an hour. The Orange County Central Justice Center hears approximately 250 general civil trials a year. If the courthouse used eight instead of 12 jurors, the savings in wages for jurors would average $600,000 a year. A 1990 study of Los Angeles County courts found employer savings of $2,000 per trial when the jury size was reduced to eight. Hunter, supra. Assuming an average of 250 civil trials a year in Orange County, this would result in $500,000 in employer savings in 1990 dollars. This is a substantial amount of savings to jurors and their employers from just one county.

Eliminating alternate jurors would also distribute the court's resources more effectively and heighten juror satisfaction. Alternate jurors frequently complain about being unable to deliberate after having to sit through an entire trial; they see it as a waste of time. Resources are wasted on selecting and seating jurors who ultimately do not deliberate. The problem would be remedied by selecting eight jurors total, allowing six jurors to deliberate if two of the eight jurors happen to be excused. If by the beginning of deliberation all eight jurors remained, then all eight would deliberate. An eight-person jury is still a small enough group to take advantage of the benefits mentioned above. By choosing eight jurors, the court would provide sufficient alternates, distribute court resources more efficiently, and allow all jurors the satisfaction of deliberating when they have taken the time to hear the case.

If juries can perform their duties more efficiently in smaller groups and the savings in both time and money to the courts and society are so substantial, 12 jurors may not be necessary.

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.