Legal News

Five, Six, a Dozen? Just How Small Can a Jury Be?

By Dan Slater

On today’s WSJ opinion page, Northwestern Law’s Steven Calabresi and Arizona State Law’s Michael Saks are calling on the High Court to take up Deltoro v. Florida, a challenge to an earlier Supreme Court case holding that juries of fewer than 12 members are constitutional.

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. Deltoro’s trial by six was constitutionally permissible, explain the authors, because, in 1970, the Supreme Court decided that when the Framers used the word “jury” in the Constitution they meant to specify no particular number of jurors. The court held that juries could be as small as six and perhaps even smaller.

This, say Saks and Calabresi, runs contrary to the original meaning of the Constitution, tradition, precedent and empirical evidence showing that juries smaller than 12 don’t perform as well partly because they have a reduced “capacity for cross-sectional representation.”

Eight years after the 1970 case, the authors notes, the Court held unconstitutional Georgia’s attempt to reduce the size of juries to five. There was no consensus on why this was so, but one opinion, by Justice Lewis Powell, was candid enough to say that they were drawing a line based on nothing but their own unexplained say-so.

Full post as published by Law Blog - WSJ.com on January 06, 2009 (boomark / email).