Across the nation, people are reacting to the not-guilty verdict in George Zimmerman’s murder trial. Rather than rehash what others have said about the merits of the case, the correctness of the verdict, or the greater issues of race relations in the United States, I will use this opportunity to discuss the role of the jury in criminal cases.
Notably, the jury in the Zimmerman trial was comprised of six people, in accordance with Florida law. The six unanimously found Zimmerman not guilty of second-degree murder and manslaughter. In this column, I will consider whether the six-person jury is constitutionally sufficient in felony cases such as this one.
I first discuss the historical significance and role of the jury, particularly in criminal trials. I then describe the cases in which the U.S. Supreme Court has upheld some variations on the traditional requirement of a unanimous, twelve-person jury. In light of these cases and the logic the Court used to reach its decisions, I conclude that the six-person jury for felonies punishable by life imprisonment likely violates the federal Constitution, and that the Supreme Court should revisit its jurisprudence holding otherwise.
The Role of the Jury in Criminal Trials
Juries have played a central role in trials at least as far back as the Thirteenth Century, and were solidly part of the English system at the time of the founding of the United States. Drawing upon this rich history, Article III of the U.S. Constitution provides that “Trial of all Crimes, except in Cases of Impeachment, shall be by Jury.” The Sixth Amendment expands on that requirement, stating, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed.”
It was long assumed that the right to jury trial meant the right to a jury of 12 persons (originally, white men). In the 1898 case of Thompson v. Utah, the Supreme Court expressly held that “the jury referred to in the original Constitution and Sixth Amendment is a jury constituted, as it was at common law, of twelve persons, neither more nor less.”
In 1968, the Court held in Duncan v. Louisiana that the Sixth Amendment’s right to trial by jury was applicable to the states via the Fourteenth Amendment. Thus, under Thompson and Duncan, the twelve-person jury was a requirement of both federal and state criminal trials.
The Court revisited its holding in Thompson, however, in 1970. In Williams v. Florida, a criminal defendant appealed his conviction on the grounds that the six-person jury that had found him guilty deprived him of his constitutional right to a trial by a jury(meaning, under the Constitution, a jury of twelve). Florida law had been changed in 1967 to permit juries of six persons for all criminal cases except capital cases, which still required twelve-person juries. (Interestingly, the new law also permitted women to serve on juries, whereas before only men were eligible jurors.)
In Williams, the Court held that the Constitution does not impose a requirement as to the number of jurors that must sit on a jury. Despite reaching the opposite conclusion in Thompson, the Williams Court found “absolutely no indication” that a jury must have exactly the same characteristics as it did under English common law. Thus, under Williams, as long as the jury serves the function of “prevent[ing] oppression by the Government,” a jury of fewer than twelve jurors is constitutionally permissible.
The Court then further eroded the traditional adherence to unanimous, twelve-person juries in its 1972 decisions in Apodaca v. Oregon and Johnson v. Louisiana, where it narrowly held that 10-2 and 9-3 votes, respectively, were constitutionally sufficient to convict a criminal defendant.
The dissenting Justices in these landmark decisions warned that the developing jurisprudence in this area of law created an arbitrary distinction between constitutional and unconstitutional juries: If 10-2 and 9-3 votes were sufficient, then what about 8-4 or 7-5? And if six jurors were acceptable, what about five, or three? Could a state allow for a guilty verdict by a non-unanimous jury of fewer than twelve jurors, say 6-3 or 5-1? Is conviction beyond a reasonable doubt possible when one or more jurors have doubt? These were all possibilities that the Court’s decisions raised without definitively answering.
In 1978, the Court held in Ballew v. Georgia that a Georgia law permitting juries of five persons violated the constitutional right to trial by jury. And then the following year, the Court ruled in Burch v. Louisiana that a criminal conviction based on a 5-1 verdict was unconstitutional, as well. Thus, the Court drew the boundaries: juries must be comprised of six to twelve people, and if the juror number only six, then those six must be unanimous. This jurisprudence left much gray area, however.
Jury Size and the Severity of the Charge
As the Court was developing its new jurisprudence on jury size and unanimity requirements, one core consideration was the severity of the charge at issue. Despite other changes, the Court left untouched the tenet that petty federal crimes (typically defined as those for which the maximum penalty is less than six months in prison) do not trigger the Sixth Amendment’s right to jury trial. In Duncan v. Louisiana, the Court held that “in the American States, as in the federal judicial system, a general grant of jury trial for serious offenses is a fundamental right, essential for preventing miscarriages of justice and for assuring that fair trials are provided for all defendants.” In that case, the Court recognized that this same limitation applies to the states via the Fourteenth Amendment. Regardless of the length of sentence actually sought against a defendant, the charge of a serious offense triggers the right to a jury trial.
The Court in Duncan was careful not to draw an exact boundary between offenses that are considered “serious” and “petty” ones, using the traditional six-month demarcation as simply an indicator. Although the Constitution imposes certain minimum due process requirements on the states, it also allows them substantial freedom to legislate their own laws and declare their own public policies. Indeed, in Johnson v. Louisiana, the 1972 case upholding a 9-3 guilty verdict, the Court stated that each state’s legislature has the discretion to vary the difficulty of obtaining a conviction based on the severity of the punishment and the gravity of the crime.
Six-Person Juries Are Inferior to Twelve-Person Juries
The reasons that the Court gave for reaching its conclusion in Williams v. Florida have been since been rebutted. Among these reasons were:
- A jury of six would be sufficient to promote group deliberation, to insulate members from outside intimidation, and to provide a representative cross-section of the community.
- There was no evidence that six-member panels were less reliable than twelve-member panels.
- There would be no significant differences in results, including hung juries.
- A reduction in size would not cause the representative or cross-section character of the jury to suffer.
A 1997 study published in Law and Human Behavior refuted each of these reasons. The study found that “larger juries are more likely than smaller juries to contain members of minority groups, deliberate longer, hang more often, and possibly recall trial testimony more accurately.” Although other studies question both the results and methodologies of research on jury sizes, a majority of published studies are consistent with the finding that twelve-person juries are superior to six-person juries. The Court in Ballew v. Georgia reviewed many of these studies before reaching the conclusion that a five-person jury violates the Sixth Amendment. That alone does not mean, however, that six-person juries for cases involving serious offenses are constitutionally insufficient.
Allowing six-person juries to convict defendants and sentence them to one of the strictest sentences available in our country at best toes the line of what is constitutionally permissible. The shaky ground upon which the Court’s decision based its decision in Williams is even less solid now than it was forty years ago when the case was decided.
In this age of the Internet, social media, and a robust court of public opinion, it is increasingly important not only that courts actually deliver justice, but also that they give the appearance of doing so. In high-profile trials like that of George Zimmerman, all sides of the debate would benefit from a fortified sense that justice was served, and a twelve-person jury arguably advances not just the reality of justice, but also the perception by the public that justice has been done.