I previously described the high-level findings of the Seventh Circuit’s American Jury Project – click here for that post, including links to PDFs of the report and related documents. Having discussed the Commission’s findings, I am now looking at findings for the specific Principles studied. This post focuses on twelve person juries – click here for a previous post regarding juror questions and click here for a previous post regarding preliminary jury instructions.
Twelve person juries had the least conclusive results of the four Phase Two Principles. Mathematical modeling and other data suggested that twelve person juries would increase jury diversity and, therefore, presumably fairness. Fifty trials used twelve person juries. 50% of the judges in the trials believed the larger panels resulted in increased diversity, but only 39% of the trial attorneys agreed. But relatively few judges (25%) and trial attorneys (25%) thought the larger juries increased the fairness of the trial. Judges (78%) and trial attorneys (64%) largely agreed that the larger juries did not decrease trial efficiency. Finally, 93% of jurors and 77% of attorneys agreed that “the right number” of jurors were empanelled expanded in their cases.
The actual fairness of trials may not have been improved by larger juries. But the increased diversity of the twelve person jurors should at least increase the perception of fairness. Much of the power of our judicial system rests in a shared public perception of its fairness. The perception of fairness, therefore, is critical to the system. As a result, I agree with the Commission’s finding that, despite the inconclusive findings, twelve person juries warrant at least further study, if not widespread adoption.
Finally, one interesting procedural note: courts across the country face consistent problems filling jury pools. So, increasing jury sizes will strain an already strapped system. This is partially resolved by the Commission’s decision not to increase each side’s three peremptory challenges along with the increased jury sizes. Not increasing peremptory challenges reduces the increased strain on the jury pool and helps increase diversity, but it also limits counsels’ ability to pick the best possible jury. There may not be a perfect solution to this problem, but it is, at a minimum, an interesting tension that warrants additional study.