Do Criminal Trials Require 12 Jurors?

There is an opinion piece in today’s Wall Street Journal where Steven Calabresi, who teaches law at Northwestern University, and Michael Saks, who teaches law at Arizona State University, argue that criminal juries of less than 12 people are unconstitutional and should be rejected. 

In support of their position, they cite a case that might come before the U.S. Supreme Court, Deltoro v. Florida, where Mr. Deltoro was tried and convicted by a 6 person jury of sexually assaulting his daughter.  Professors Calabresi and Saks, argue that Mr. Deltoro should be given a new trial with 12 people on the jury. 

They rightly point out that a criminal jury of 12 people has been around for centuries.

To which I respond, so what?

What is so special about a criminal jury of 12 people?  What does it have going for it other than a long tradition?  Certainly there were no studies done six centuries ago under English common law that found 12 was the optimal number of people needed to dispense justice.  After all, let’s not forget the the first juries were less than representative of the people and sometimes even had individuals who knew about the facts of the case.

Even today, are there any definitive studies that determine the optimal number of jurors in a criminal case?  Is 12 better than, say, 14, or 9?  Is the optimal number — whatever that might be — the same for a murder case or a rape case or a burglary charge?

Our civil system has used less than 12 jurors for years — yet I don’t hear about anyone routinely complaining about too few jurors in civil trials.

No, I don’t believe there is anything magic about having 12 citizens in a criminal trial.  Our justice system can still function fairly and effectively with less than 12 jurors in criminal cases. 

What do you think?

Comments

[criminal lawyer Houston]

I think juries could work out fine with 8-10 people. It would save a lot of jury summons. Another idea is to consider the offense and its seriousness when deciding on a panel.