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And Then There Were Twelve - Statistical Reasoning, the Supreme Court, and the size of the Jury

NCJ Number
72641
Journal
California Law Review Volume: 68 Issue: 5 Dated: (September 1980) Pages: 1004-1043
Author(s)
D Kaye
Date Published
1980
Length
40 pages
Annotation
Conclusions articulated by the United States Supreme Court relative to jury size, the constitutionality of jury size size reduction, and related statistical arguments are discussed.
Abstract
In its 1970 decision in 'Williams v. Florida' the United States Supreme Court held that a decrease in the size of the criminal jury for 12 to 6 members did not offend the sixth amendment. It upheld this position 3 years later in 'Colgrove v. Battin.' The issue of jury size was again addressed in the 1978 decision of 'Burch v. Louisiana all the Justices agreed that a six-member criminal jury which was not required to return a unanimous verdict fell short of the lines fixed in 'Williams' and in 'Ballew.' Such holdings are not only contradictory of changes in jury size, and such a new standard is unworkable and undesirable. The principal argument for deviating from the 12-member jury is that smaller juries should cost less. However, in terms of representativeness, accuracy, and reliability, statistical analysis indicates that smaller juries fall short of acceptable criteria. No court can demarcate the intrinsically numerical contours of the nebulous concept of jury size without fashioning an arbitrary line; i.e., that a six member jury is acceptable, but a five-member jury is not. This inherent arbitrariness, in terms of statistical reasoning, is compounded as one moves toward smaller juries that clearly are functionally inferior. Thus, any departure from the traditional concept of the jury as a body of 12 persons should be held unconstitutional. Footnotes, figures, and tables are included in the article. Appendixes present tabular data and a simplified derivation of the Poisson model.

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