So, it seems like the only time we talk about juries, is when we’re furiously trying to avoid serving on them.
But we’ve all heard of them.
You know, that group of people who sit in a trial as impartial onlookers, hear evidence brought forth by both defendants and plaintiffs, and ultimately deliberate to reach a verdict.
But the jury also represents an often overlooked but still highly contested way to think about American citizenship and democratic participation.
In fact, the number of jury members for any given trial is less rigid than we imagine, and who counts as eligible citizens for jury duty is still being debated today.
So since the jury’s still out on how and why we have to serve, today we’ll be examining the history of juries, their functions, and how we settled on that magic number 12.
So, before we get into the debates of jury duty and jury members, let’s break down the facts of what juries even are.
In English common law, the judge determines the law to be applied to the case while the jury’s duty is to find facts.
The term jury comes from the word ‘jure’, which means ‘oath,’ and in the US there are two main types of juries: the grand jury and what we think of when we think of juries—the petit jury.
Grand juries, like their name implies, usually consist of 16 to 23 members who are tasked with determining the validity of an accusation before a trial.
Petit juries, which sound much cuter but are actually found in criminal and civil cases, can have between six and 12 members.
Unlike a grand jury, defendants and their lawyers have the right to be heard by the members of the petit jury.
The appropriate designation for number of jurors dates back to before the formation of the US.
And up until 1975 the disgruntled people who would act as jurors were more than likely to consist of men only.
But why, when we think of juries, do we think of twelve people?
Why aren’t there 8?
9?
10?
Why wouldn’t a court decide during the voir dire process to just stop at 11 people and call it a day?
The historical reason why we default to 12 jurors in the petit jury is much more biblical than one might imagine, especially considering there’s no contemporary requirement in the US Constitution for twelve-member-only juries.
In 1898, the US Supreme Court stated that, a jury is comprised of “12 persons, neither more or less" was a constitutional requirement, but that decision was overturned in 1970 by Williams v Florida.
Three years earlier, the state of Florida created legislation that allowed for the use of six-person juries, and after being tried and convicted by a six person jury on robbery charges, Johnny Williams took his appeal to the Supreme Court challenging the constitutionality of this less-than-twelve number.
In this case, the US Supreme Court found that the Sixth Amendment doesn’t say anything about jury size, arguing that six-person juries satisfy the requirements of the 6th and 14th Amendments.
So juries trying criminal cases can have 6 people— enough to promote group deliberation— but 5 is too low, as the Supreme Court ruled in a later case.
In their 1970 ruling, the Supreme Court found the expectation that a jury must consist of 12 members to be an "historical accident.”.
Serious criminal cases across the states usually require 12 jurors, with fewer than twelve being required for misdemeanors or civil cases, depending on the state.
Phew ok that was a heck of a lot of court cases.
TLDR: the number 12 is a historical quirk and not a hard and fast rule.
The story of where the 12 person jury originated is somewhat unclear.
And to understand this conclusion, we have to travel 3500 miles and back in time 1200 years.
The original jury system may have been created by the Welsh King of GlaMorgan, Morgan the Generous.
The king established jury trials in early 8th century CE, and decided on the number 12, purportedly saying, “For as Christ and his 12 apostles were finally to judge the world, so human tribunals should be composed of the king and 12 wise men,” with the King holding court and acting as judge.
It’s possible that Anglo-Saxons and Norman conquerors carried this tradition over to English common law.
So in other words, Morgan the Generous was so generous, he gave us 12 person juries.
Towards the end of the 12th Century, King Henry II introduced reforms to reassert control over the Church and as a mode of indirect rule in England.
Traveling Royal justices would call forth ‘juries of presentment’ across the realm to address accusations against serious crimes.
These consisted in part of 12 local men tasked with determining the innocence of the accused, and helping interject Royal law into local disputes without requiring the King to have direct say in every matter.
This process was meant to supplement ordeals of water, which attributed one’s innocence to their lack of buoyancy when chucked into holy water.
Which essentially was a doomed if you float doomed if you sink method of justice.
By around 1220 the petit jury became an established part of English law as the aptly named trial by ordeal disappeared.
The tradition eventually traveled to the US and other English colonies, though, this configuration of juries and focus on inquiry would become our modern-day grand jury while the petit jury’s focus on verdict would continue on until the present.
So, we’ve figured out why there tend to be 12 jurors.
But why, until the 1970s, were those jurors mostly men?
While most of us think political participation is limited to voting, who gets to serve on juries and enact punishment also reveals who is given full access to citizenship in our democracy.
Currently there are specific rules for who can and cannot participate in a jury in the US at the federal levels.
To serve as a juror, one must be: first, a United States citizen and a resident of the county in which you are summoned; Second, at least 18 years old; third, have the ability to read, write and understand English; fourth, having not been convicted of a crime punishable by imprisonment for more than one year.
And fifth, not showing up to serve in a Golden Girls themed Christmas sweatshirt with no sleep...oh wait that’s just what happened when I was called to serve.
Whoops.
Individuals who are 70 or older are not required to serve, but they may serve if they wish.
And states usually have similar rules as the federal government.
Now, people have been calling for reforms to protect the rights of defendants using different languages and dialects, including US citizens who speak forms of AAVE (African American Vernacular English).
For instance, the ‘English-only’ rule that says who can and cannot participate in juries has been critiqued, especially by members of Latinx and Asian American communities in the US who argue that limiting the pool to one particular language—despite the fact that the US does not have an official language—may affect the composition of juries and adversely affect the fairness for a defendant not fluent in English who is on trial.
But racialized minority groups have historically & systematically been excluded outright from participation in juries for a whole host of reasons.
For African Americans, this exclusion has roots in the conditions of enslavement.
Yet a Supreme Court decision in 1880 ruled that African Americans could not be excluded from jury service.
For a brief time through the Reconstruction period after the US Civil War, the possibilities of citizenship for formerly enslaved African Americans were much more open.
But in the following years Supreme Court decisions (like 1896’s Plessy v Ferguson) enshrined discriminatory practices that kept African Americans off of juries.
This was upended in 1935 when the Supreme Court ruled African Americans may not be excluded systematically from jury service.
This effectively meant African American MEN could participate in juries, even though the Supreme Court would return to this issue again and again over the decades.
It was much later that women of any race were on juries just like men.
Women only gained the right to serve on all federal juries in 1957--though it took sixteen more years until women in all 50 states had the right to serve on juries at the state level.
In 1961, the Supreme Court ruled that a state was allowed to require women to opt-in for jury duty —effectively making jury duty “voluntary” for women as not to interfere with their “domestic responsibilities.” “[W]oman is still regarded as the center of home and family life.
We cannot say that it is constitutionally impermissible for a State […] to conclude that a woman should be relieved from the civic duty of jury service unless she herself determines that such service is consistent with her own special responsibilities."
YIKES.
Although if you’re Liz Lemon, then it’s really your mind reading powers that kept women from serving.
This was eventually overruled in 1975, making it more difficult to exclude women as possible jury members and making women selectable from voter registration lists.
Although it’s a myth that all states use voter registration lists to find jurors: California, Maine, and Florida use driver’s license or utility company lists so as to avoid dissuading people from participating in other political processes like voting.
But there still exists discrimination against a certain class of citizens: those convicted of a felony at the federal or state level, who are disproportionately African American.
A judge or jury will not be able to restrict the rights of a person convicted of a crime during sentencing, such as voting or ability to partake in jury duty, but being convicted of a felony can indirectly affect that person’s civil rights through state statutes.
This is what’s called a collateral consequence of conviction--the removal of rights as a result of conviction but not as part of sentencing.
This might include ineligibility for public service or programs, denial of professional licenses and elimination of other civil rights.
Currently, about 20 million US citizens with felony convictions are excluded from jury service at the federal level and in 27 states.
At the federal level, convictions with sentencing of more than one year precludes people from serving on juries, contingencies exist within states that determine how long a person can have these rights eliminated or impaired.
Only Maine has no law on the length of collateral consequences.
Also until recently, juries did not have to reach unanimous decisions to convict someone in certain states.
Only 48 out of 50 states required unanimity to convict in criminal trials until 2018.
That year, Louisiana voted to have an almost 140-year-old law changed that allowed non-unanimous jury decisions in which only 10 out of 12 members had to agree to convict.
Oregon still allows criminal defendants — except those charged with murder — to be found guilty by juries (10-2) or (11-1).
In both states, these laws were enacted during the Jim Crow Era and other discriminatory regimes.
According to Thomas Aiello, associate professor of African American studies and history, non-unanimous jury laws in Louisiana were the result of systematic attempts to reduce the ability of jurors—hypothetically African American jurors—to stop the conviction of an African American defendant by causing a hung jury or mistrial.
After Louisiana’s vote, Oregon’s State House of Representatives put forth a bill to address their state’s own non-unanimous jury law, but it was later dropped in part because the Supreme Court agreed to hear Ramos v Louisiana (2014), a case that will ultimately decide the constitutionality of whether defendants require a jury of their peers at the state level to be convicted of a crime unanimously.
Though it’s common to think of jury duty as something to avoid like the plague, serving is a right that some have been excluded from exactly because it carries so much importance--sometimes it makes the juror the only one standing in front of another person’s freedom.
And although the reason that there are 12 members instead of 3 or 6 or whatever other number is the stuff of religious mythology, Welsh kings, and witch hunts from days past, the role that juries play in the dishing out of justice and ultimately freedom or conviction for the accused is a vital one.