The U.S. Supreme Court declined over the objection of Justice Neil Gorsuch on Tuesday to reconsider whether the Constitution guarantees Americans facing serious criminal charges the right to a trial by a full 12-member jury.
The decision to not take up the appeal, brought by Natoya Cunningham, a Florida woman who was convicted by a six-person jury and sentenced to eight years in prison, means states can continue to use juries consisting of fewer than 12 members in felony trials. Florida and five other states—Arizona, Connecticut, Indiana, Massachusetts, and Utah—allow the practice.
In Florida, six-person juries are used for all criminal cases not eligible for the death penalty, including non-capital murder cases where the convicted killer could face life imprisonment.
In contrast to Florida, Connecticut requires a 12-person jury for such serious non-capital cases. Utah, meanwhile, uses eight-member juries to consider felony cases where the offenses are punishable by more than a year in prison.
Justice Gorsuch said he would have taken the appeal. In a dissenting opinion, he urged the court to reexamine its “embarrassing” precedent, which allowed Florida to use such small juries for more than half a century.
“For almost all of this Nation’s history and centuries before that, the right to trial by jury for serious criminal offenses meant the right to a trial before 12 members of the community,” Justice Gorsuch wrote. “Yet today, a small number of States refuse to honor its promise.”
The 12-person jury standard was introduced to the United States by English colonists who based their civil and criminal justice systems on England’s legal tradition. In 1791, when the Sixth and Seventh Amendments were ratified to preserve jury trial rights as they existed in English common law, it remained a common understanding that a jury should consist of 12 individuals.
The traditional requirement of a 12-person jury came into question in 1967, when Florida Legislature halved the size of juries in an effort to reduce court expenses and backlogs. Three years later, the Supreme Court upheld a conviction by a six-member state-court criminal jury in Williams v. Florida, saying that Florida’s use of smaller juries in criminal cases does not violate a defendant’s Sixth Amendment right to a jury trial.
In Williams v. Florida, the Supreme Court described the common-law tradition as “a historical accident, unnecessary to effect the purposes of the jury system, and wholly without significance except to mystics.” Noting that the Six Amendment doesn’t mandate a precisely 12-member jury, the high court said the question of jury size should be left to individual states.
According to the Court, a smaller criminal jury was as constitutional as a traditional 12-member one so long as it could promote group deliberation and provide “a fair possibility for obtaining a representative cross-section of the community” while remaining free from outside attempts at intimidation. Based on its reading of the criminal justice literature of the day, the Court found that the effectiveness of a jury “hardly seems likely to be a function of its size.”
The Court also dismissed the idea that a 12-member jury gives a defendant a greater advantage. “The advantage might just as easily belong to the State, which also needs only one juror out of twelve insisting on guilt to prevent acquittal,” it said. “What few experiments have occurred ... indicate that there is no discernible difference between the results reached by the two different-sized juries.”
Justice Gorsuch disagreed with the Williams Court. He said the 1970s decision was based on “bad social science,” not a careful interpretation of the Constitution’s “original meaning.”
“We should have granted review in Ms. Cunningham’s case to reconsider Williams,” he wrote in the dissenting opinion, arguing that the post-Williams era has witnessed a “gradual erosion” of the jury trial right enshrined in the Constitution.
“If there are not yet four votes on this court to take up the question,” he wrote, “I can only hope someday there will be.”
“In the meantime, nothing prevents the people of Florida and other affected states from revising their jury practices to ensure no government in this country may send a person to prison without the unanimous assent of 12 of his peers.”
In 2022, the Supreme Court declined an appeal brought by Ramin Khorrami, an Arizona man who was convicted of fraud by a jury of eight people. At the time, Justices Gorsuch and Brett Kavanaugh said they would have heard the challenge.
