After two grand juries failed to indict the police officers that killed Michael Brown and Eric Garner in 2014, our nation has engaged in polarizing discussions about how juries reach their decision. The very legitimacy of our justice system has come into question. Increasingly, deep concerns have been raised concerning the role of race and gender in jury decision-making in such controversial cases. Tracing the roots of juror decision-making is especially complicated when jurors’ race and gender are factored in as considerations. This Article relies on social science research to explore the many cross-sectional challenges involved in the jurors’ decision making in the George Zimmerman case. To analyze how the Zimmerman jurors’ race and gender may have affected their decision-making in the case, we present empirical studies evaluating the effect of race and gender on juror decision-making in criminal cases. Our aim in this Article is to create dialogue about an important challenge for our justice system: How can we fulfill the constitutional mandate that juries be diverse? How can we overcome the barriers to fulfilling this ideal? We conclude by demanding stronger measures to ensure that juries represent a fair cross-section of the communities that they represent. Our suggestions also include focusing on the prosecutor’s special obligations to serve justice by selecting a jury that adequately represents the community from which it is drawn. These and other changes are crucial to ensuring that communities accept even the most controversial jury decisions as legitimate.
One residual consequence of George Zimmerman's acquittal last year has been an increased public interest in jury size. As some will recall, Zimmerman was acquitted by a 6-person all female jury. Currently, several states have pending legislation that would increase the number of jurors in criminal trials.
In Wisconsin, the state senate passed a bill which would require 12-person juries for all criminal cases to include misdemeanors. This same bill has already passed the Wisconsin Assembly.
In Florida, the Senate Criminal Justice Committee on a 4-3 vote approved legislation to require 12-person juries in any case where the sentence may result in a life sentence. In the Florida House of Representative, a companion bill would require 12-member juries for all criminal cases.
Due to the fact that George Zimmerman is being tried by a 6-person jury in Florida, there has been a renewed interest in jury size so here is a brief background sketch on the topic. Since 1970, the U.S. Supreme Court has recognized juries composed of less than 12 jurors (Williams v. Florida). In Williams, the Court determined that while the Common Law might call for 12 jurors "there is absolutely no indication in the intent of the Framers' of an explicit decision to equate the constitutional and common-law characteristics of the jury." The Supreme Court has gone so far as to say that 6-person juries are okay; however, the jurors must be unanimous (Burch v Louisiana).
Despite the Supreme Court's acceptance of 6-person juries, there have been numerous studies that overwhelmingly show that larger juries perform better. Here is just a brief sampling of what those studies discovered with respect to reducing jury size: (1) jury less representative of the community as a whole; (2) fewer jurors to remember important pieces of evidence; (3) the jury is less likely to overcome group biases; and (4) decreased accuracy in verdicts. While I don't think the aforementioned issues will necessarily occur by reducing the jury from 12 to 11, there is the potential for problems with 6-person juries.
Six-person juries are in the news again. The two articles below discuss why some defense lawyers and legislators are pushing for six-person juries. In the first example, the state of Hawai'i is studying the feasibility of employing the six-person jury as a cost cutting move--it is cheaper to sit six rather than twelve. In the other example, defense attorneys in Chicago are using six-person juries to get "more opportunities to challenge and eliminate jurors relative to the jury's size and thus...craft the jury."
Interesting article in today's Wall Street Journal. Two noteable law professors (Calabresi and Saks) are urging the Supreme Court to take up Deltro v. Florida. The Supreme Court will decide by January 9th on whether they will hear the case in which the defendant challenges the constitutionality of the six person jury that convicted him.
Once in a while the Supreme Court gets a case -- or a line of cases -- completely wrong. The question of whether criminal juries of fewer than 12 citizens are constitutional is such a blunder.
This issue could soon come before the Supreme Court if the justices decide to hear Deltoro v. Florida. William Bolivar Deltoro was tried by a six-person jury and convicted in 2007 of sexually assaulting his daughter. He was sentenced to life in prison without the possibility of parole. In 47 other states and traditionally in common law, a trial for such a grave offense requires 12 jurors.