Sixth Amendment:

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, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Under current doctrine, a criminal jury must have at least six members.1 The Court’s early doctrine endorsed the stricter view that the Sixth Amendment required a twelve-member jury in conformity with historical practice.2 But because the federal criminal system used a twelve-person jury,3 the Supreme Court did not squarely confront the constitutionality of a state law providing for smaller juries until after it held in Duncan v. Louisiana in 1968 that the jury trial right applied against the states.4 In the first case after Duncan to address such a law, Williams v. Florida,5 the Court rejected the traditional, historically-based view that the jury trial right required a twelve-person jury and applied instead a functional analysis to uphold a Florida law providing for a six-person criminal jury.6 The Supreme Court stated: “[T]he essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen . . . [b]ut we find little reason to think that these goals are in any meaningful sense less likely to be achieved when the jury numbers six, than when it numbers 12—particularly if the requirement of unanimity is retained.” 7

Eight years later, in Ballew v. Georgia,8 the Court converted the six-person jury upheld in Williams into the constitutional minimum when it struck down a Georgia law providing for five-person juries in certain cases.9 Relying on a number of academic studies about problems with small juries released after Williams, the leading opinion in Ballew concluded that “the purpose and functioning of the jury in a criminal trial is seriously impaired, and to a constitutional degree, by a reduction in size to below six members.” 10 Ballew did not overturn or disavow Williams; instead, it simply prohibited any “further reduction” in the jury size that Williams upheld.11

Footnotes

1

Ballew v. Georgia, 435 U.S. 223, 245 (1978) (opinion of Blackmun, J.) ( “[T]rial on criminal charges before a five-member jury deprive[s] [a defendant] of the right to trial by jury guaranteed by the Sixth and Fourteenth Amendments.” ); id. at 245–46 (Powell, J., concurring in the judgment, also on the theory that five-member juries violate the right to jury trial).

2

Thompson v. Utah, 170 U.S. 343, 353 (1898) ( “[T]he word ‘jury’ and the words ‘trial by jury’ were placed in the constitution of the United States with reference to the meaning affixed to them in the law as it was in this country and in England at the time of the adoption of that instrument . . . [and therefore] require[ ] that [a criminal defendant] should be tried by a jury composed of not less than twelve persons.” ); see also Ballew, 435 U.S. at 230 n.8 (collecting additional cases decided between 1900 and 1930 that made the “assumption . . . that the 12-member feature was a constitutional requirement” ). In Thompson, the Court held that application of a provision of Utah’s state constitution providing for an eight-person jury in non-capital cases to prosecutions for crimes committed before Utah became a state, when as a territory it followed the federal practice of twelve-person juries, violated the ex post facto clause of Article I, §10 of the U.S. Constitution. Thompson, 170 U.S. at 355.

3

See, e.g., Fed. R. Crim. Proc. 23(b) advisory committee’s note to 1944 adoption (explaining that the rule restated the “existing practice” of providing for twelve-member jury, absent stipulation by the parties for a smaller jury). In 1983, Rule 23(b) was amended to authorize federal courts “to permit a jury of 11 persons to return a verdict, even without a stipulation by the parties, if the court finds good cause to excuse a juror [after the jury has retired to deliberate].” Fed. R. Crim. Proc. 23(b)(3) advisory committee’s note to 1983 amendments.

4

See Burch v. Louisiana, 441 U.S. 130, 134 (1979) ( “Only in relatively recent years has this Court had to consider the practices of the several States relating to jury size and unanimity. Duncan v. Louisiana marked the beginning of our involvement with such questions.” ) (citation omitted); Williams v. Florida, 399 U.S. 78, 90, 103 (1970) (explaining that before Duncan, the Court’s decisions had “assumed” that the Constitution required a twelve-person jury).

5

399 U.S. 78 (1970).

6

Id. at 86 ( “We hold that the 12-man panel is not a necessary ingredient of ‘trial by jury,’ and that respondent’s refusal to impanel more than the six members provided for by Florida law did not violate petitioner’s Sixth Amendment rights as applied to the States through the Fourteenth.” ).

7

Id. at 100.

8

435 U.S. 223 (1978).

9

Id. at 245 (opinion of Blackmun, J.). Only Justice John Stevens joined Justice Harry Blackmun’s opinion, which announced the judgment; four other Justices concurred in the judgment in opinions that also concluded that five-member juries violated the Sixth Amendment. See id. (White, J., concurring in judgment on ground that “a jury of fewer than six persons would fail to represent the sense of the community and hence not satisfy the fair cross-section requirement of the Sixth and Fourteenth Amendments” ); id. at 245–46 (Powell, J., concurring in judgment on ground that “use of a jury as small as five members, with authority to convict for serious offenses, involves grave questions of fairness . . . and a line has to be drawn somewhere if the substance of jury trial is to be preserved,” but disagreeing with plurality’s implication that the Fourteenth Amendment fully incorporates the right to jury trial and with plurality’s reliance on “numerology derived from statistical studies” ).

10

Id. at 239 (opinion of Blackmun, J.).

11

Id. ( “While we adhere to, and reaffirm our holding in Williams v. Florida, the[ ] [academic] studies, most of which have been made since Williams was decided in 1970, lead us to conclude that the . . . [Constitution prohibits] a reduction in [jury] size to below six members.” ).