Juries in civil and criminal trials must be composed of at least six people

Thursday, October 3, 2013

Good morning:

Trained Observer asked the following question recently in a comment to the clarification-and-apology thread:

Is it typical for federal civil trial juries to be composed of 10?

According to the NY Post’s Page Six, Mark Cuban’s jury on insider tr accusations appears to be seven women, three men.

My answer:

The use of a 10-person jury does not violate the right to a jury trial. However, the Mark Cuban case is the only case that I recall using a 10-person jury.

The source for the right to a jury trial is Article 3 of the United States Constitution, which states in part, “The Trial of all Crimes…shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed.”

The Seventh Amendment extends the right to a jury trial to civil cases:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

In Colgrove v. Battin, 413 U.S. 149 (1973), the Supreme Court of the United States (SCOTUS) decided that a jury must consist of at least 6 people in order to function properly. SCOTUS also has ruled that the right to a jury trial in criminal cases does not apply, unless the maximum sentence authorized by statute exceeds 6 months. This ruling means that there is no right to a jury trial, if the offense charged is a petite misdemeanor.

Notice that the 6-person requirement is a minimum requirement that does not preclude the use of 12-person juries. In practice, the use of 6-person juries is restricted to courts of limited jurisdiction, such as county district and municipal courts that process misdemeanor and gross misdemeanor offenses.

Florida and possibly one other state use 6-person juries to decide felony cases (criminal offenses in which the maximum sentence exceeds one year in jail).

SCOTUS has ruled that the right to a 12-person jury applies to capital (death penalty) cases.

In addition to the constitutionally required 12-person jury in capital trials, Florida also uses 12-person juries when a defendant is charged with 1st degree murder.

To avoid potential confusion, I am including a brief review regarding the use of grand juries.

Grand juries meet in secret to decide whether to charge people with crimes. Members of a grand jury serve an 18-month term and generally meet one day per month. Grand juries investigate and issue subpoenas to witnesses (i.e., compelling a witness to appear before the grand jury and testify regarding a matter under investigation) and subpoenas duces tecum (i.e., subpoenas that require a witness to provide certain specified documents or evidence). To issue an indictment, at least 12 members of a grand jury must decide there is probable cause to support each charge under consideration.

Pursuant to the Fifth Amendment, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.”

Witnesses who testify before grand juries may bring their lawyers with them, however their lawyers cannot be present in the room while the grand jury is in session and their client is testifying. Before answering any question, a witness can request an opportunity to consult with his lawyer regarding his answer. Most of the requests concern whether the witness has a statutory privilege (e.g., attorney-client, doctor-patient, etc.) or a 5th amendment right to refuse to answer the question. The grand jury takes short breaks to accommodate such requests.


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28 Responses to Juries in civil and criminal trials must be composed of at least six people

    • crazy1946 says:

      Dave, The stories them selves are kind of hum drum, but the responses to the story from the Zimdolts are amusing…. I wonder how many fools are still sending part of their welfare checks to him each month? Do you suppose he takes food stamps as well?

  1. Mary Davis says:

    @ Professor. Please check your e-mail.
    Thank you.

  2. crazy1946 says:

    dianetrotter, Wow, a good question. Let’s look at the Trayvon case for a moment, as a good example. If AC had presented it to the (racist?) grand jury and it had failed to reach an indictment, what would have been her next move. Bear in mind we are assuming she intended to win the case. Had she simply announced that she would drop the case, would there have been civil unrest? Had she gone ahead and charged with 2nd degree murder, would it have given a reason for a mistrial? Can you imagine the PR nightmare they would have faced? I don’t think that she would have received a conviction in this case even if she had tried, it was pre-determined to be an acquittal, for reasons that we will probably never know for sure…

  3. dianetrotter says:

    So grand jury meets and decides there is not enough evidence for a capital murder indictment, can prosecutor then go for 2nd degree murder or manslaughter?

  4. Meh, 10 person – 6 person. I tell my clients when we try their case before certain jurists, if you hire me, we’ll have to win on appeal…why? 🙂

  5. colin black says:

    15 in Scotland our justice ststem is based on the laws of France laid out by Napoleon after he manuvered himself into the position of Emperor after a decade of farce an dissperet attempts to govern after the abolition of the monarchy.

    Napolean was an astute statesmen as well as a tactical genious on the battlefield.

    Most of the statutes rules laws an regulations he decreed are still in use in the modern French legal system and some as with Scotland were adopted by other countrys.

    Napoleon was a pragmatist although a non believer in God he found Religion usefull.

    Asked why he travelled to Rome to seek a meeting an blessing from the Pope he answered.

    I am to rule a Nation comprised of Roman Cathlics if I were to rule a country dominated by those of the Jewish faith I would travel to Solomons Templ;e to pay my respects.

    • colin black says:

      15 Jurours an three possible verdicts GUILTY or NOT GUILTY or NOT PROVEN….

      The latter means there not sure if the accused is guilty or innocent an if more evidence new evidence that is.
      Then the accused can face a retrial on the offence.

  6. Judy75201 says:

    Just FYI, I’ll make my usual donation tonight. Thanks.

  7. ay2z says:

    OT ‘On’ topic,, the US and Canadian systems are the same with respect to number of jurors, minimum 6 and as many as twelve. Makes sense since our systems both go back to the English system. (will find a link for later. Wishing everyone a good day, finally weather has broken and it’s much brighter for the moment at least )

  8. ay2z says:

    OT, NASA from Mars is still operational and has just photographed what some think will be the comet of the centur named ISON. The comet entered the solar system and will pass by the sun. It may brighten to the comet of the century, or it’s icy self might just fizzle away.

    (could be that depens on how much ISON board 😉

  9. Two sides to a story says:

    The rationale of secrecy with a grand jury is rather odd. Seems like that opens the door wide to abuses, although I imagine one of the concerns is to give power to the people.

    • crazy1946 says:

      Two sides to a story,

      ” I imagine one of the concerns is to give power to the people.”

      Actually, because it is just the Prosecutor (the State) and a group of people supposedly neutral and no representation for the person who is testifying, I would suggest it has the opposite effect. It gives more power to the state and takes it from the defendant…. This would IMO give more room for abuse of power than if the person testifying had a legal representative to aid them in their efforts…. As you say it gives a better than average chance of abuse to occur…

  10. crazy1946 says:

    Professor I know this is not on topic, however if you would allow it to stand, I would appreciate it…


    Recently I made several posts to Rachael that were poorly written and failed to communicate my true thoughts and intents. It is obvious that my communication skills are somewhat lacking at times and for that I truly am sorry. Rachael, I want to simply say that I do appreciate and enjoy your posts and feel that I have failed you, in that I simply did (do) not find a way to respond to you in such a way that you could understand that we actually did (do) agree on most issues and that I do respect your opinions and words. If you can find it in your heart to forgive me for my weaknesses, I promise to work harder at making my point with out being seen as offensive… Perhaps I should limit my future communications to simple “yes” or “no” posts, but being that I am a man, I would probably even screw that up…

    • Rachael says:

      Don’t worry – I’m going through some stuff right now and overly sensitive to everything. And it was wrong for me to guilt-trip you that way. I enjoy your posts too and I’m really sorry I got caught at a high-emotion time. I should know better than to say anything when I’m having things going on because I lash out and I’m really sorry. You did not fail me. I failed myself, and to you, I apologize. You have nothing to apologize for.

  11. crazy1946 says:

    Good morning, great to see a new post!

    • I have another one in the works.

      • crazy1946 says:

        It will be great to return to the relative safety of the class room to once again begin the study of law… A mind that is busy learning and studying is less prone to wander into the quicksand of emotions…. I am curious however, why are attorneys not allowed to be present during questioning by the grand jury?

        • Girlp says:

          I don’t understand not having a lawyer with you when questioned in front of the grand jury at all….no wonder people take the fifth. You can be innocent but answered a question in such a way you appear to have done the crime; under the circumstance of you being in court alone is enough to make you nervous.

          • Trained Observer says:

            Girlp — Am beginning to think it’s best to say nothing no matter what the occasion — being interviewed by federal agents for possible insider trading or testifying before a grand jury if forced to do so without a lawyer present.

            I could be wrong, but I thought that was one of the interesting twists in the Sandusky machinations. During grand jury proceedings before everything really hit the fan, one of Penn State’s lawyers was later caught playing both sides of the advisory fence and shouldn’t have been present during the grand jury portion. Am admittedly hazy, very hazy, on this.

          • Girlp says:

            @ Trained : I agree, I have read many stories where a suspect said the wrong thing and they find out years later that the person did not commit the crime. Hmmm I don’t remember that about Sandusky but would not be surprised.

  12. Trained Observer says:

    Thank you, professor, for these insights, including the add-on bonus info on grand juries.

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