Why twelve? Why not 14 or 10? It’s not an unfair question but for the fact that a number existed at the time the Bill of Rights was ratified that was so deeply embedded in common law history and tradition that it was accepted as the number of people that made up a jury for the trial of serious criminal offenses.
And while scholars may debate the precise moment when the common-law jury came to be fixed at 12 members, this much is certain: By the time of the Sixth Amendment’s adoption, the 12-person criminal jury was “an institution with a nearly four-hundred-year-old tradition in England.”
And the number twelve had not only been firmly established as this nation was formed, but was re-established by precedent addressing the Sixth Amendment right to an impartial jury. Until it wasn’t.
Presently [sic], the laws in 44 States entitle individuals charged with serious crimes to a trial before a 12-member jury. Only 6 States, Arizona included, tolerate smaller panels—and it is difficult to reconcile their outlying practices with the Constitution.
In Williams v. Florida (1970), the Supreme Court abandoned the rule that the right to an impartial jury included the right to a jury of twelve people.
Decided against this backdrop, Williams was an anomaly the day it issued in 1970. The decision upheld a Florida law permitting the use of 6-member juries in cases involving serious criminal accusations. In doing so, the decision contravened the Sixth Amendment’s original meaning and hundreds of years of precedent in both common-law courts and
this one. Nor are the three most essential moves Williams made to reach its result remotely persuasive.
Curiously, the Williams decision was grounded in argument that will strike very familiar notes in some of the most significant legal debates occurring in other matters today. While the twelve person jury was grounded in originalism and precedent, the Williams decision sought to reflect a more “progressive” approach to change. The rationale’s three points rejected the acceptance of twelve jurors just because it was the way it was always done in favor of change.
First, Williams sought to sidestep any serious inquiry into the “‘intent of the Framers’” of the Sixth Amendment on the ground that their motivations were an “elusive quarry.” To prove its point, Williams observed that James Madison’s initial draft guaranteed a jury trial with its “‘accustomed requisites,’” but the Senate later dropped this qualifying language. According to the Williams majority, Madison’s draft surely would have carried with it a guarantee of a 12-member jury, for that was an “accustomed requisite” of criminal trials at common law. But the Senate’s editorial change made it at least “plausible” to infer that some Senators may have “intended” to abandon the traditional 12-person rule.
The fallacy of this argument is that, while it may provide plausibility, the far more “plausible” argument was that the understanding that a jury was comprised of twelve people was so well understood that it required no further explanation. The argument reflects a rhetorical gimmick used often today, arguing for change in the established norm based upon the absence of absolute evidence that it couldn’t be possible.
Second, Williams not only had to sidestep evidence of original meaning to reach its result, it also had to find some way around a battery of this Court’s precedents stretching from 1898 to 1968. To accomplish that, Williams tersely dismissed the teachings of all these cases as “dict[a].” But that move, too, undersells history. As we’ve seen, long before Williams this Court stated unequivocally that “the jury referred to in the original Constitution and in the Sixth Amendment is a jury constituted, as it was at common law, of twelve persons.”
This is the typical argument made by the defendants seeking qualified immunity, that something that is so fundamentally obvious that it has never been questioned, and stated and restated, technically as dicta perhaps, but only because it was too clear to question, suddenly presents a mystery for which no clear answer exists.
Third, after giving short shrift to original meaning and precedent, Williams still had to construct an affirmative case for permitting 6-member juries. To do so, Williams first posited that the ancient 12-member jury rule “rest[s] on little more than mystical or superstitious insights.” Next, Williams suggested that 6-member juries would “probably” function just as well when it comes to ensuring thoughtful “group deliberation . . . and . . . provid[ing] a fair possibility for obtaining a representative cross-section of the community.”
Is it true that the virtue of the number twelve rests on little more than “superstition”? Perhaps, or perhaps there was a sounds reason at the point, more than 400 years before the Bill of Rights was ratified, for choosing twelve rather than ten or fourteen. But the number twelve was chosen.
Even Williams had to concede, however, that “few experiments” and little evidence existed to support its claims. In the end, the best Williams could say was that, as of 1970, “neither currently available evidence nor theory” had yet proved that a 12-person jury “is necessarily more advantageous” than a 6-member panel.
In other words, the historical and precedential understanding that a jury would consist of twelve might not have been empirically proven to be the “right” number, but neither had a jury of any other number been proven better. Yet, the Williams Court approved of the use of a lesser number in serious criminal accusations.
The issue arose again in Khorrami v. Arizona, where the defendant was tried before a jury of eight, and the Arizona Supreme Court affirmed the conviction, holding that it was constrained by the Supreme Court’s Williams decision. Khorrami sought review to ask the Court to reverse its decision in Williams.
The petition for certiorari was denied, with two justices dissenting from the denial of cert. One, without opinion, was Justice Kavanaugh. The other, who wrote in dissent, was Justice Gorsuch.
Speaking for the Court, Justice Harlan could not have been plainer: “[T]he jury referred to in the original Constitution and in the Sixth Amendment is a jury constituted, as it was at common law, of twelve persons, neither more nor less.”
No other justice joined in Gorsuch’s dissent.
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