So, it seems like the only time we talk about juries, is when we’re furiously trying to
avoid serving on them. But we’ve all heard of them. You know, that group of people who
sit in a trial as impartial onlookers, hear evidence brought forth by both defendants
and plaintiffs, and ultimately deliberate to reach a verdict. But the jury also represents
an often overlooked but still highly contested way to think about American citizenship and
democratic participation. In fact, the number of jury members for any given trial is less
rigid than we imagine, and who counts as eligible citizens for jury duty is still being debated
today. So since the jury’s still out on how and why we have to serve, today we’ll
be examining the history of juries, their functions, and how we settled on that magic number 12.
So, before we get into the debates of jury duty and jury members, let’s break down
the facts of what juries even are.
In English common law, the judge determines the law to be applied to the case while the
jury’s duty is to find facts. The term jury comes from the word ‘jure’, which means
‘oath,’ and in the US there are two main types of juries: the grand jury and what we
think of when we think of juries—the petit jury. Grand juries, like their name implies,
usually consist of 16 to 23 members who are tasked with determining the validity of an
accusation before a trial. Petit juries, which sound much cuter but are actually found in
criminal and civil cases, can have between six and 12 members. Unlike a grand jury, defendants
and their lawyers have the right to be heard by the members of the petit jury.
The appropriate designation for number of jurors dates back to before the formation
of the US. And up until 1975 the disgruntled people who would act as jurors were more than
likely to consist of men only.
But why, when we think of juries, do we think of twelve people? Why aren’t there 8? 9?
10? Why wouldn’t a court decide during the voir dire process to just stop at 11 people
and call it a day? The historical reason why we default to 12 jurors in the petit jury
is much more biblical than one might imagine, especially considering there’s no contemporary
requirement in the US Constitution for twelve-member-only juries.
In 1898, the US Supreme Court stated that, a jury is comprised of “12 persons, neither
more or less" was a constitutional requirement, but that decision was overturned in 1970 by
Williams v Florida. Three years earlier, the state of Florida created legislation that
allowed for the use of six-person juries, and after being tried and convicted by a six
person jury on robbery charges, Johnny Williams took his appeal to the Supreme Court challenging
the constitutionality of this less-than-twelve number. In this case, the US Supreme Court
found that the Sixth Amendment doesn’t say anything about jury size, arguing that six-person
juries satisfy the requirements of the 6th and 14th Amendments. So juries trying criminal
cases can have 6 people— enough to promote group deliberation— but 5 is too low, as
the Supreme Court ruled in a later case. In their 1970 ruling, the Supreme Court found
the expectation that a jury must consist of 12 members to be an "historical accident.”.
Serious criminal cases across the states usually require 12 jurors, with fewer than twelve
being required for misdemeanors or civil cases, depending on the state. Phew ok that was a
heck of a lot of court cases. TLDR: the number 12 is a historical quirk and not a hard and
fast rule.
The story of where the 12 person jury originated is somewhat unclear. And to understand this
conclusion, we have to travel 3500 miles and back in time 1200 years. The original jury
system may have been created by the Welsh King of GlaMorgan, Morgan the Generous. The
king established jury trials in early 8th century CE, and decided on the number 12,
purportedly saying, “For as Christ and his 12 apostles were finally to judge the world,
so human tribunals should be composed of the king and 12 wise men,” with the King holding
court and acting as judge. It’s possible that Anglo-Saxons and Norman conquerors carried
this tradition over to English common law. So in other words, Morgan the Generous was
so generous, he gave us 12 person juries.
Towards the end of the 12th Century, King Henry II introduced reforms to reassert control
over the Church and as a mode of indirect rule in England. Traveling Royal justices
would call forth ‘juries of presentment’ across the realm to address accusations against
serious crimes. These consisted in part of 12 local men tasked with determining the innocence
of the accused, and helping interject Royal law into local disputes without requiring
the King to have direct say in every matter. This process was meant to supplement ordeals
of water, which attributed one’s innocence to their lack of buoyancy when chucked into
holy water. Which essentially was a doomed if you float doomed if you sink method of
justice. By around 1220 the petit jury became an established part of English law as the
aptly named trial by ordeal disappeared. The tradition eventually traveled to the US and
other English colonies, though, this configuration of juries and focus on inquiry would become
our modern-day grand jury while the petit jury’s focus on verdict would continue on
until the present.
So, we’ve figured out why there tend to be 12 jurors. But why, until the 1970s, were
those jurors mostly men? While most of us think political participation
is limited to voting, who gets to serve on juries and enact punishment also reveals who
is given full access to citizenship in our democracy.
Currently there are specific rules for who can and cannot participate in a jury in the
US at the federal levels. To serve as a juror, one must be:
first, a United States citizen and a resident of the county in which you are summoned;
Second, at least 18 years old; third, have the ability to read, write and
understand English; fourth, having not been convicted of a crime punishable by imprisonment
for more than one year. And fifth, not showing up to serve in a Golden
Girls themed Christmas sweatshirt with no sleep...oh wait that’s just what happened
when I was called to serve. Whoops.
Individuals who are 70 or older are not required to serve, but they may serve if they wish.
And states usually have similar rules as the federal government.
Now, people have been calling for reforms to protect the rights of defendants using
different languages and dialects, including US citizens who speak forms of AAVE (African
American Vernacular English). For instance, the ‘English-only’ rule that says who
can and cannot participate in juries has been critiqued, especially by members of Latinx
and Asian American communities in the US who argue that limiting the pool to one particular
language—despite the fact that the US does not have an official language—may affect
the composition of juries and adversely affect the fairness for a defendant not fluent in
English who is on trial. But racialized minority groups have historically & systematically
been excluded outright from participation in juries for a whole host of reasons.
For African Americans, this exclusion has roots in the conditions of enslavement. Yet
a Supreme Court decision in 1880 ruled that African Americans could not be excluded from
jury service. For a brief time through the Reconstruction period after the US Civil War,
the possibilities of citizenship for formerly enslaved African Americans were much more
open. But in the following years Supreme Court decisions (like 1896’s Plessy v Ferguson)
enshrined discriminatory practices that kept African Americans off of juries. This was
upended in 1935 when the Supreme Court ruled African Americans may not be excluded systematically
from jury service. This effectively meant African American MEN could participate in
juries, even though the Supreme Court would return to this issue again and again over
the decades.
It was much later that women of any race were on juries just like men. Women only gained
the right to serve on all federal juries in 1957--though it took sixteen more years until
women in all 50 states had the right to serve on juries at the state level. In 1961, the
Supreme Court ruled that a state was allowed to require women to opt-in for jury duty —effectively
making jury duty “voluntary” for women as not to interfere with their “domestic
responsibilities.” “[W]oman is still regarded as the center of home and family life. We
cannot say that it is constitutionally impermissible for a State […] to conclude that a woman
should be relieved from the civic duty of jury service unless she herself determines
that such service is consistent with her own special responsibilities." YIKES. Although
if you’re Liz Lemon, then it’s really your mind reading powers that kept women from
serving. This was eventually overruled in 1975, making it more difficult to exclude
women as possible jury members and making women selectable from voter registration lists.
Although it’s a myth that all states use voter registration lists to find jurors: California,
Maine, and Florida use driver’s license or utility company lists so as to avoid dissuading
people from participating in other political processes like voting. But there still exists
discrimination against a certain class of citizens: those convicted of a felony at the
federal or state level, who are disproportionately African American. A judge or jury will not
be able to restrict the rights of a person convicted of a crime during sentencing, such
as voting or ability to partake in jury duty, but being convicted of a felony can indirectly
affect that person’s civil rights through state statutes. This is what’s called a
collateral consequence of conviction--the removal of rights as a result of conviction
but not as part of sentencing. This might include ineligibility for public service or
programs, denial of professional licenses and elimination of other civil rights. Currently,
about 20 million US citizens with felony convictions are excluded from jury service at the federal
level and in 27 states. At the federal level, convictions with sentencing of more than one
year precludes people from serving on juries, contingencies exist within states that determine
how long a person can have these rights eliminated or impaired. Only Maine has no law on the
length of collateral consequences.
Also until recently, juries did not have to reach unanimous decisions to convict someone
in certain states. Only 48 out of 50 states required unanimity to convict in criminal
trials until 2018. That year, Louisiana voted to have an almost 140-year-old law changed
that allowed non-unanimous jury decisions in which only 10 out of 12 members had to
agree to convict. Oregon still allows criminal defendants — except those charged with murder
— to be found guilty by juries (10-2) or (11-1). In both states, these laws were enacted
during the Jim Crow Era and other discriminatory regimes. According to Thomas Aiello, associate
professor of African American studies and history, non-unanimous jury laws in Louisiana
were the result of systematic attempts to reduce the ability of jurors—hypothetically
African American jurors—to stop the conviction of an African American defendant by causing
a hung jury or mistrial. After Louisiana’s vote, Oregon’s State House of Representatives
put forth a bill to address their state’s own non-unanimous jury law, but it was later
dropped in part because the Supreme Court agreed to hear Ramos v Louisiana (2014), a
case that will ultimately decide the constitutionality of whether defendants require a jury of their
peers at the state level to be convicted of a crime unanimously.
Though it’s common to think of jury duty as something to avoid like the plague, serving
is a right that some have been excluded from exactly because it carries so much importance--sometimes
it makes the juror the only one standing in front of another person’s freedom. And although
the reason that there are 12 members instead of 3 or 6 or whatever other number is the
stuff of religious mythology, Welsh kings, and witch hunts from days past, the role that
juries play in the dishing out of justice and ultimately freedom or conviction for the
accused is a vital one.