Historically, trial juries were twelve people. Is this number constitutionally required? The Supreme Court said no 54 years ago in Williams v. Florida. The decision was 7-1, with Justice Marshall dissenting alone on this point.

However, the Supreme Court’s views on such matters have changed, and four years ago the high court dumped a precedent approving nonunanimous juries, despite the reliance of states on that precedent. See Ramos v. Louisiana. Today the Supreme Court declined to take up a Florida case challenging the Williams precedent, Cunningham v. Florida, but Justice Gorsuch fired a warning shot across the bow of states that allow juries of less than 12 in criminal cases.

How many states are in question? The National Center for State Courts complied a table of jury laws in 2004. It listed Arizona, Connecticut, Florida, Indiana, Massachusetts, and Utah as allowing small juries in at least some felony cases. A quick check indicated these states have not changed their laws since, though I have not researched it in detail. A lot more states allow small juries in misdemeanor cases. A reversal on such cases is less likely, and it would be less of a problem. The reversal would likely not be retroactive to cases final on direct appeal, as Ramos was not, and misdemeanors generally become final more quickly than felonies. Keeping the small juries for those cases may be a risk worth taking. Larger juries make trials more expensive and time-consuming, giving the defendant more leverage for plea bargaining, a necessary evil that should be avoided to the extent possible.

For felonies, though, and especially major crimes, keeping small juries is playing with fire. Justice Gorsuch does not have the needed four votes to take the issue up yet, but when he does Williams is probably toast. Ramos was 6-3 in the result, and the chances of two of those votes switching to keep Williams are remote. I would not be surprised if one or more of the Ramos dissenters switched the other way, finding that Ramos itself is now precedent and the two issues have enough in common that an opposite result is not warranted.

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