12-Member Juries and Unanimous Verdicts: A Debate

By Landsman, Stephan; McCord, David | Judicature, May/June 2005 | Go to article overview

12-Member Juries and Unanimous Verdicts: A Debate


Landsman, Stephan, McCord, David, Judicature


Introduction

The new ABA Standards Relating to Jury Trials, adopted in February, 2005, contain Principle 3: Juries should have 12 members; and Principle 4: Jury decisions should be unanimous. The Standards that complement these two Principles buttress the ABA's position that all state and federal courts should use the 12person unanimity model in all civil and criminal cases (except that juries of at least 6 persons are acceptable in criminal cases where the potential maximum confinement is six months or less). These Principles are aspirational, but they have behind them the force of a formidable, high-profile organization that speaks for a large segment of the legal community. For this reason, these two Principles have provoked concern among leaders of the legal community in jurisdictions whose practices do not comply.

Looking at 52 jurisdictions (the 50 states plus the District of Columbia and the federal courts), non-complying jurisdictions are numerous:

* In criminal cases, six jurisdictions permit juries of less than 12, and two permit non-unanimous verdicts;

* In civil cases, 40 permit juries of less than 12, and 30 permit nonunanimous verdicts;

In fact, only about 10 jurisdictions are completely or almost completely in compliance with the ABA's aspirations by requiring 12-person unanimous jury verdicts in all the criminal and civil cases covered by the Principles.1 Thus, the Principles advocate a substantial change for most jurisdictions in civil cases, and a fewjurisdictions in criminal cases. Indeed, several states would have to amend their constitutions in order to comply with the ABA Principles.

In light of the importance of the issue, Judicature presents two law professors addressing the topic in a pro/con format. Writing in support of ABA Principles 3 and 4 is Professor Stephan Landsman of DePaul College of Law, who was the Reporter for the American Jury Project that drafted the Principles adopted by the ABA House of Delegates. Writing in opposition is Professor David McCord of Drake University Law School, who is also the Director of the National Jury Center of the American Judicature Society.

1. These counts are derived from STATE COURT ORGANIZATION 1998, Table 42, by the Bureau of Justice Statistics, the most recent compilation of such data. The five completely complying jurisdictions are Alabama, New Hampshire, North Carolina, Tennessee, and Vermont. A handful of other jurisdictions allow deviations from the 12-person unanimity model in only minor respects.

In defense of the jury of 12 and the unanimous decision rule

by STEPHAN LANDSMAN

A bit more than 30 years ago, the United States Supreme Court decided on the basis of a smattering of preliminary studies and a casual approach to history to overturn more than 200 years of experience and precedent by allowing the abandonment of both the 12-member jury and insistence on unanimous verdicts. In so doing it overrode its 1898 decision in Thompson v. Utah,1 mandating 12-member juries, and its 1897 decision in American Publishing Co. v. Fisher,2 requiring jury unanimity.

The scholarly materials the court relied on were hardly empirical and far from convincing. Hans Zeisel, the great empiricist from the University of Chicago, persuasively demonstrated their shortcomings within months of the time the Supreme Court cited them.3 Subsequent research has shown that, the Supreme Court notwithstanding, smaller juries are demonstrably inferior to their 12-member counterparts.4 Larger juries deliberate longer and have better recall of trial testimony.5 Thus, they are more likely to produce accurate results.6 By contrast, smaller civil juries are more likely to produce extreme and unpredictable damage awards that do not reflect community values.7 Evidence also suggests the logical corollary, that larger juries in criminal cases are more likely to return sound verdicts in consonance with the concerns of the community.

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