Thursday, October 3, 2013
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.
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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