NACDL - National Association of Criminal Defense Lawyers

Kian v. Florida

Few rights were as cherished or as well settled at the time of the Founding as the right to a trial by jury in criminal cases. And when that right was twice written into the Constitution, it carried established characteristics—including that conviction required “the unanimous consent of twelve.” 3 Blackstone, Commentaries on the Laws of England 379 (1768). Only in Williams v. Florida, 399 U.S. 78 (1970), did this Court depart from the path. There, the Court recognized the historical, common-law, and constitutional heritage of twelve-member juries. But the Court discarded that evidence on the basis that, in its judgment, a jury of twelve was no longer worth requiring as a practical matter. That was a grave mistake. For one thing, a rich common-law tradition warrants respect because it reflects “the wisdom, counsel, experience and observation of many ages.” Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 672 (1834). For another, each of the vital interests served by the jury-trial right is undermined by permitting criminal trials with six- or eight- rather than twelve-member juries. Juries of twelve counteract prosecutorial and judicial overreach, produce accurate and sensible decisions, and facilitate broad community participation in the criminal system. Reducing the number of jurors leads to unjust convictions, overzealous prosecutions, and serious deficiencies in juror deliberations and reasoning. Overruling Williams to restore the centuriesold requirement of a twelve-member jury would not have undue consequences. The vast majority of the States already comply with the Constitution’s original meaning. The federal system does, too, permitting departures from twelve-member juries only in extraordinary circumstances that are not presented here. Plus, any decision restoring the jury-trial right as the Framers intended it would not yield any path to collateral attacks in cases involving final convictions. This Court should overrule Williams and reverse the judgment below.

Author(s)

Jonathan D. Hacker, Co-Chair, Supreme Court Amicus Committee, NACDL, Washington, DC; Arjun Ogale, Gibson, Dunn & Crutcher LLP, Dallas, TX; Matt Aidan Getz, Kahn A. Scolnick, Patrick J. Fuster, and Paige H. Petrashko, Gibson, Dunn & Crutcher LLP, Los Angeles, CA; Tate Rosenblatt, Gibson, Dunn & Crutcher LLP, Washington, DC

Explore keywords to find information

• Amicus Briefs
• Right to Trial by Jury
• United States Supreme Court

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