How big should a civil jury be?

Today, I pick a civil jury for a trial that will last about six trial days. I spent last evening getting up to snuff on the motions in limine.

We summoned 17 jurors. I will put them all in the box and manipulate the strikes if we have to pitch any of them for cause. Putting them all in the box will increase my jury utilization statistics.

I hope to seat 8 or 9 jurors after the lawyers finish exercising their peremptory challenges. Unlike all of my colleagues in the District of Nebraska, I almost never use a 12-person jury in civil cases.

I wonder what civil trial lawyers think about juries of less than 12. Let me know what you think.

RGK

15 responses

  1. A 12 person jury is exponentially more thorough than a six person jury. Each of the six other people (not seated on a six person jury) brings a wealth of many years of life’s experiences to the consideration of the case greatly increasing the common sense of the jury.

    Some lawyers prefer a six person jury because they don’t know how to do a voir dire and its easier to do an ineffective voir dire with six than with 12.

    Its the observations of the jury and the deliberations of the jury that make the 12 person jury superior.

  2. I worry about the consistency and comparability of jury trials. This was on my mind recently because of a certain well-publicized Florida criminal trial with a jury of six people that happened to have six women, and was not particularly racially diverse.

    I’m not a statistician, but if we model a juror was someone with a fixed probability of rendering a difficult and unpopular verdict, then a six-person jury has some very different characteristics from a twelve-person jury. For instance, if that probability is 1%, then for a six-person jury, there’s a 5.8% chance that such at least one juror will hold out for a hard verdict (that is, (1-.01)^6). But for twelve-person jury, there’s an 11.3% chance.

    (These are made-up numbers. And you can dispute what they show. And that’s probably not the best analysis.) The point is to say there is a different level of confidence you can have in the verdict of a smaller jury compared to that of a larger jury.

    And also, the liklihood that the jury will represent a diverse sampling of the community goes up substantially with more people. It’s not hard for smaller juries to exclude minorities (of any kind, be they racial, sexual, economic, professional, etc.); that’s just how statistical sampling works.

    Is it OK to have different levels of confidence in one trial than another? I would like to think that if the same case was tried before two judges in two different venues with similar circumstances and identical laws, that the same result would come out.

    Maybe this is not such a big deal for civil trials, with Judge Kopf indicated this is limited to.
    And I’m not a civil trial lawyer, so maybe I was not supposed to comment. If so, sorry.

  3. I prefer 6, one advantage for both sides is that 12 jurors are called and each side gets 3 strikes, (25 %) leaving 1/2 as opposed to 12 in which 18 jurors are called, – 3 strikes per side is 16.6 % leaving 1/3.
    There tend to be more challenges for cause sustained with a smaller pool.

    I ask at pretrial for defense to stipulate to 6 pursuant to Nebraska rules and occasionally defense counsel consents.

    Many state court judges have adopted the “void dire doesn’t matter” approach and limit it to 45 minutes, per side -federal court usually 15 minutes maximum, so a smaller jury pool is preferable for those lawyers, like me, who think “void dire does matter.”

    The decisions come quicker, but are not unexpected.

  4. Vince,

    Does the size of the jury matter? In other words, do smaller juries get it right about the same number of times as 12-person juries?

    All the best.

    RGK

  5. I suspect that is a nearly impossible question to answer other than to say our experience with county and district court 6 person juries has not caused us to think there is a difference. Often we let the alternate deliberate since it seems unfair to send them home after closing argument, so there are 7.

    By the time the case is submitted, you usually have a good sense of where the jury is headed and there just are not that many surprises.

  6. I think a six person jury is too small. The twelve person jury is a creature of federal criminal right derived from the constitution, but not applied to the States. I don’t do much civil work, but I would rather have a larger jury than six because small juries seem more capable of being controlled by one leader while a larger jury is more likely to have an additional strong juror to counter. I also think randomness and a greater likelihood of a fair cross section comes with size and a 6 person jury could be an unrepresentative snippet. I think it problematic when we wind up with a jury pool, let alone final jury, that is not a good mix. People feel left out and unheard in those situations, ala Zimmerman, so we should strive for the cross section in the pool as well as those selected from the pool. As a lawyer in a particular case, however, I don’t care so much about a fair cross section, unless my client’s “slice” of the cross section can’t be seen. Generally I think juries smaller than twelve would be fine if we were getting a good representative pool as a result of the jury selection plan in the locale. But, those plans and the criteria for who gets a notice, how they are selected, and how they are excused before ever seeing the courthouse don’t seem to get us to a representative sample too often. That is an interesting area of the law and one worthy of study by professorial types. The only possible way to address the problem with current selection of who gets into the pool is to go big in the size of those selected from that pool for each particular jury.

  7. Dean,

    We use state voter registration lists, state drivers’ license lists and state ID lists. See here at paragraph 5 and page 2. Do you think that broad enough?

    All the best.

    RGK

  8. Form follows function.

    Prior to the Glorious Revolution of 1688, English judges were “lions under the throne,” servile creatures of the King. As English judges held their sinecures at pleasure of the King, they were highly motivated to place their fingers on the scales of justice for benefit of the King. As such, the jury was an essential countervailing force against tyranny, insofar as the jury had every right to ‘go rogue,’ thwarting even the will of the King. Blackstone wrote that it was “the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals.” 3 Wm. Blackstone, Commentaries on the Lawes of England 379 (1765).

    At common law, juries were ultimate masters of both law and fact. As in a real sense, juries wrote laws, it was thought that you needed a large enough cross-section of the county to write just laws. In a proper jury trial, the judge was an administrator and living law library. The judge told the jury what he thought the law was, but the jury had a right to reject his counsel. As Chief Justice Jay charged a jury in the Supreme Court (yeah, they used to be a trial court):

    “It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of law. But still both objects are lawfully, within your power of decision.”

    Georgia v. Brailsford, 3 US 1, 4 (1794). Jefferson further elaborates:

    “It is left, therefore, to the juries, if they think the permanent judges are under any bias whatever in any cause, to take on themselves to judge the law as well as the fact. They never exercise this power but when they suspect partiality in the judges, and by the exercise of this power they have been the firmest bulwarks of English liberty.”

    The system worked because the judges watched the jury (through the system of appeals and remands for new trials) and the jury watched the judge. Checks and balances. As us bean-counters call it, “internal controls.”

    Dean Stowers asserts that the twelve-person jury is only something a criminal defendant is entitled to, and I seem to remember a case holding precisely that. But I am given pause by the fact that in 1791, there was no dichotomy between civil and criminal cases. Blackstone indicates [see quote above] that there was no difference; you could not even be injured in your property without the consent of twelve of your peers. If, as the case law seems to declare and the 7Am seems to suggest (through the only use of the word “preserved” in the Const/BoR), the Framers intended that the process be set in legal amber, then everybody has been doing it wrong.

    If all a jury needs to do is decide questions of fact, nine is probably enough. But for a jury to do what the Framers intended, twelve is preferable, for the reason Dean Nasser offers.

  9. I worked out the math on the Zimmerman trial: Even if jurors were chosen at random with no voir dire, the odds were about 50-50 that the jury would not have a black member. When you consider pre-trial publicity and its effect on eligibility, it became close to a veritable certainty.

    States can do whatever they want; the vast majority of criminal trials are, OC, at the state level. My objection is that the courts have misled jurors into not knowing their power of nullification (which mattered in Zenger, and might have mattered in Callender–the decision that emasculated the 7Am). The British system at the time it was imported asked more of their jurors, and one could frustrate the implementation of bad law through hanging his jury (back then, only men were allowed).

  10. Judge,

    Respectfully, I do not. It is well known that voter registration and drivers’ license lists tend to skew white and richer. Data could also be derived from other locations to make it more equitable, perhaps from public utilities’ list of customers(?). While it wouldn’t be perfect for the up-to-date census that jury selection mandates, it would better allow being tried by a full cross-section of the community.

    Rule 2. “Discrimination Prohibited. No citizen will be excluded from service as a grand or petit juror in this district on account of race, color, religion, sex, national origin, or economic status.”

    Thanks,
    BRD

  11. Dear BRD,

    Thanks for your input. We are also using state issued IDs that are fast becoming ubiquitous and used by poor people for a wide variety of practical reasons. Are you aware of any empirical data that suggests that this addition is insufficient to get at your concern?

    All the best.

    RGK

  12. BRD,

    We also use state issued IDs which are becoming ubiquitous among the poor because the requirement of identification is becoming ubiquitous for all sorts of basic services such as signing up for utilities, obtaining a cell phone or cashing a check. Why isn’t that sufficient? I would be very interesting in empirical studies on this point.

    Thanks so much for taking the time to write. I appreciate it. All the best.

    RGK

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