Not 5, not 6, not 7 or even 8 jurors; the number is 12

In urging that eight-person criminal juries are good enough and would save money, Randolph A. Rogers overlooks the criminal jury's most important purpose. ("COVID-19 and 8-person juries," April 27, 2020.)

Deciding whether a defendant's acts violate a particular law is only the narrowest task of the criminal jury. Its greater role, under the common law, in the colonial era, and under the Constitution, was to check the potentially abusive power of the state.

That democratic purpose was ensured by three hallowed principles: 1. The requirement of a unanimous verdict; 2. the requirement of 12 jurors; and 3. jury nullification -- the jury's right to "nullify" a criminal law in the interest of justice, by refusing to convict. Those three principles meant that the government would need to prove not merely that the accused violated the law, but that the law was just and being applied justly. If the jury thought otherwise, it had the absolute right and duty to acquit, even in the face of law and facts.

Thus, the state's burden was to prove its case, and the justice of its case, to 12 "good men and true" -- not five, six, seven or even the eight citizens urged by Rogers.

Not surprisingly, the state and its allies, promising savings and efficiency, constantly chew at the leash. One way they seek to increase the state's power, at the expense of the jury's watchdog role, is to lessen the state's trial burden by reducing jury size; it is easier to persuade fewer jurors. And if an eight-person jury is good enough and more efficient, why not seven, six or five? After all, once one accepts Rogers's suggestion, one may as well limit the jury's role, and the state's burden, even further. And the smaller we make the jury, the more money the state will save!

-- Kent Crossman

Los Angeles