Why do some people say, “It’s six of one, half a dozen of the other”? Why can’t they just simply say, “It’s the same difference”?
When it comes to juries these COVID-19 pandemic days, the question is becoming whether there is any difference to proceeding to trial with only six jurors as opposed to 12. Given the difficulty courts have had getting jurors to show up in courthouses in response to jury summonses, some judges have tried to convince civil litigants to agree to a six-member jury at civil trials as opposed to the standard 12-member jury that attorneys are so used to facing.
Many attorneys, who are creatures of habit and precedent, hesitate and are paralyzed by the internal debate on whether to give up a 12-member jury in favor of a six-member jury. Is there really a difference? Or, when it comes to civil trials, is six in one the same as 12 in another jury box?
Reluctance of the Populace to Appear
According to a November 22, 2020, Associated Press article, courts across the entire United States are postponing jury trials due to the difficulty in getting jurors to come to the courtroom for jury selection where they will be forced to be in close proximity to strangers from all walks of life for extended periods of time.1
That difficulty has been seen here in Pennsylvania as well. Jury trials were shut down in the state and federal courts from April through August 2020 and slowly began to open again in September. Now, with the second surge of COVID-19, some courts such as the U.S. District Court for the Middle District of Pennsylvania and the Luzerne County Common Pleas Court have again chosen to postpone jury trials.
Other courts are attempting different tactics in an effort to keep their jury trials on track. The judges in the Lackawanna County Common Pleas Court, citing difficulties in getting jurors to show up in court and difficulties getting civil litigants to agree to proceed with trial in front of six-member juries, recently applied to the Pennsylvania Supreme Court for a modification of Pa. R. Civ. P. 221, which covers “peremptory challenges.”
On November 4, the Pennsylvania Supreme Court issued an order granting that application, thereby allowing the judges of Lackawanna County to reduce, or even eliminate, any peremptory challenges by any attorneys at a civil litigation trial. So far, this strategy by the Lackawanna County Court of Common Pleas to exert more control over its civil trials has not spread to other counties.
With the possibility of more courts pressing counsel to agree to six-member juries, more and more attorneys will have to weigh the pros and cons of agreeing to a smaller jury.
The Origin of 12 Jurors
The origin of juries is disputed. Although informal use of juries predates the twelfth century, King Henry II (1154–1189) of England is often credited with instituting the first official jury system, when in 1166 he ordered that “12 lawful men” in each village would make decisions on those accused of crimes. As the British Empire grew in the world, including over to America, English customs, such as the jury system of litigation, also spread.2
In the early United States, the right to trial by jury in a civil case was addressed in the Seventh Amendment to the Constitution, which provides: “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.” No more specific rules were set down as to the number of jurors that were required to be in the jury box.
For almost 200 years, the trend in civil litigation matters in the United States was in favor of 12-member juries. In the late 1960s, a court reform movement began that favored smaller juries, in part, as a cost-savings measure. In the 1970s, the issue of whether a six-member jury was permissible in criminal and civil cases was addressed by the U.S. Supreme Court in separate decisions.
In 1970, the Supreme Court approved the use of a six-person jury in a Florida criminal case, ruling that neither the language nor the history of the U.S. Constitution mandated a 12-person jury in such proceedings.3 Instead, the Supreme Court referred to the idea of a 12-person jury as a “historical accident” and held that the purpose of a jury is to provide a cross-section of the community, and that juries of less than 12 persons in serious felony cases do not violate that purpose or the Constitution.
In Colgrove v. Battin,4 the Supreme Court held that a civil jury of six members did not violate the Seventh Amendment right to trial by jury in a civil case.
As such, history shows that a six-member jury is not without precedent. The question remains, however, whether there is a difference between a six-member jury and a 12-member jury other than the number of jurors sitting in the box (or as spread throughout the courtroom for social distancing purposes during the pandemic).
Potential Differences from Jury Size
While there is no science to picking the perfect jury and while jury selection is largely a random process, some differences have been noticed by those who have researched comparisons of six-member juries versus 12-member juries.
According to an article written in 2004, some psychologists believe, based in part on articles written by Michael J. Saks, Ph.D., and Mollie Marti, Ph.D., J.D., that justice is better served by larger juries.5
These psychological studies revealed that, generally speaking, smaller juries communicated in a more cohesive fashion, with more jurors sharing equally in the discussions and deliberations. Larger groups were noted to be more contentious with more vigorous debates, and better able to collectively recall more of the evidence. According to this article from the American Psychological Association website, it was also noted that a dissenter in a larger jury may be more likely to have an ally in the jury deliberations room such that those in the minority group of a larger jury may be better able to resist pressure to yield to the will of the larger group.
These findings have led some researchers to conclude that a larger jury may be more likely to render more accurate verdicts based on a better recall of the evidence and a more thorough debate on the merits of the matter. These researchers asserted that more accurate verdicts lead to greater predictability, which, in turn, could lead to more settlements of cases before trial. For these reasons, some researchers suggest that larger juries are better than smaller juries.
In another article, by Evan Moore and Tali Panken, it was noted that 12-member juries are more likely to be composed of a cross-section of the members of the community with diverse backgrounds, beliefs, and experiences, which is one of the main purposes of calling a jury to court. For these reasons, it appeared to be the suggestion of these commentators that 12-member juries should be favored over six member juries.6
Although some psychologists and social scientists may have suggested that 12-member juries should be favored, those same researchers conceded that the differences in deliberations time spent on average by 12-member juries as compared to six-member juries has not been associated with any differences in verdict decisions. In other words, the psychological research has not shown that juries of different size reach different verdicts based on the size alone.7 For example, it was noted in one article that a case that goes to trial with evidence that greatly favors the defense would still likely come back as a defense verdict regardless of whether there were six jurors or 12 jurors on the panel, just that it might take the 12-member jury longer to deliberate and come back with its verdict.
In 2015, the state of Illinois changed from 12-member juries to six-member jurors in civil litigation matters. This change prompted one writer to interview attorneys on both sides of the bar in preparation for the writing of an article.8
One plaintiff attorney interviewed for the article noted that among the benefits of a six-member jury is that the time spent during jury selection can arguably be cut in half. That attorney believed that plaintiffs may benefit from a smaller jury in that the fewer the number of jurors that the party with the burden of proof must persuade, the more likely that that party may be to prevail.
A defense attorney interviewed for the article noted his belief that a 12-person jury may be better for civil litigation defendants. The defense counsel noted his opinion that, in a smaller jury, it may be more difficult for the members of the jury to override the obstinate stance of one dominant juror. It was noted that a 12-person panel of jurors could serve to blunt the effect of the adamant voice of a strong juror.
What to Do? What to Do?
The above research seems to indicate that plaintiffs should favor smaller juries and that the defense in civil litigation matters should generally favor larger juries, particularly in the larger value cases. The research also seems to indicate that those cases with very defense-favorable evidence remain likely to come back as a defense verdict regardless of the number of jurors.
In the end, the choice for litigating attorneys on whether to agree to a smaller jury remains a tough internal debate, particularly with all of the uncertainties attendant with allowing a jury to take a case into the deliberations room and the fear that a loss at trial may be blamed on the fact that counsel agreed to go with a smaller jury. The best practice may be to review the above research with one’s client and advise the client on the pros and cons to a decision on jury size based on the facts and circumstances of the particular case presented, and then confirm in writing with the client how the client elected to proceed to trial.
Reprinted with permission from the January 7, 2021, issue of Pennsylvania Law Weekly. © 2021 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
1. Dave Collins, Jury Duty? No Thanks, Say Many, Forcing Trials to Be Delayed, Associated Press (Nov. 22, 2020), https://apnews.com/article/trials-coronavirus-pandemic-hartford-courts-california-de849f632364e81c69e4a7a67d72073f.
3. Williams v. Florida, 399 U.S. 78 (1970).
4. 413 U.S. 149 (1973).
5. See Are Six Heads as Good as Twelve, Am. Psych. Ass’n (May 28, 2004), https://www.apa.org/research/action/jury (citing Michael J. Saks, Jury Verdicts: The Role of Group Size and Social Decision Rule (1977); Michael J. Saks & Mollie Marti, A Meta-analysis of the Effects of Jury Size, 21 L. & Hum. Behav. 451 (1997)).
6. See Evan Moore & Tali Panken, Jury Size: Less in Not More, Cornell Univ. L. Sch.: Student Projects, https://courses2.cit.cornell.edu/sociallaw/student_projects/JurySize_lessisnotmore.html.
8. Matthew Hector, Is the Switch to Six-Person Juries Constitutional?, 103 Ill. B.J., no. 3, Mar. 2015, at 14.