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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Participate and Support our Right to a Jury Trial

Sunday, February 17,2013

During the brief hearing on Thursday, Judge Nelson assured prosecution and defense that the GZ murder trial will commence on June 10, 2013. She also ordered the Clerk of the Seminole County Circuit Court to mail out jury-service notices to 500 people to create the initial panel of potential jurors from which prosecution and defense will select the 6-person jury, plus alternates to decide the case. BDLR estimated that jury selection will take approximately 2 weeks.

Question: Why so many people?

Answer: Her decision probably acknowledges the nationwide reality that few people outside the judicial system recognize, namely, less than half of the people who receive a summons report for jury service.

For example, in western Washington where I used to practice law, less than a third of the people who receive notices report for jury service and the percentage of no-shows has increased over time.

Although judges could order the police to contact and transport to the courthouse anyone who fails to report for jury service, as was the custom long ago, they no longer issue such orders since the police lack necessary resources to carry them out. Judges have adjusted instead to the increasing percentage of no-shows by correspondingly increasing the number of people to whom they send notices. Although this policy has allowed the courts to continue to provide jury trials, I often wonder if it has adversely affected the jury decision-making process and the quality of its verdicts.

Evidence based jury verdicts that resolve disputes fairly and equitably without regard to race, gender, sexual preference, economic class, religion or national origin promote justice and increase community faith and confidence in the ability of its legal system to restore Ma’at. Confidence in the community can heal and restore community wellness.

Unjust verdicts do the opposite and have the capacity to destroy communities, nations and possibly our mother, Earth.

If you or someone you know has decided or is thinking about ignoring a summons to jury duty, please reconsider the decision in light of the individual and shared responsibility we have to practice Ma’at in our communities.

Jury verdicts always cause effects in individual and community awareness of itself. The butterfly effect of those decisions could end a war or start another one.

Participate in and support our right to a jury trial.