DEFENDANT’S MOTION FOR 12-PERSON JURY
COMES NOW DEFENDANT, who, by and through undersigned counsel, demands a trial by twelve jurors under the United States Constitution, and in support thereof states as follows:
The Supreme Court held in Williams v. Florida, 399 U.S. 78, 86 (1970) that mini-juries (as small as six jurors) were constitutionally permissible. But Williams does not align with the Supreme Court’s later ruling in Ramos v. Louisiana, 590 U.S. 83 (2020), which concluded that the Sixth Amendment’s “trial by an impartial jury” requirement encompasses what the term “meantat the Sixth Amendment’s adoption.” Id. at 1395 (emphasis supplied).
The original meaning of the Sixth Amendment’s “trial by an impartial jury” plainly meant a full jury of twelve persons, at the Sixth Amendment’s adoption. Appellant’s conviction by a six-person jury, here, would thus violate the Sixth and Fourteenth Amendments to the United States Constitution.
The Sixth Amendment:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . .
Section 1 of the Fourteenth Amendment of the United States Constitution:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Article I, section 22 of the Florida Constitution:
Trial by jury.—The right of trial by jury shall be secure to all and remain inviolate. The qualifications and the number of jurors, not fewer than six, shall be fixed by law.
Section 913.10, Florida Statutes:
Number of jurors.—Twelve persons shall constitute a jury to try all capital cases, and six persons shall constitute a jury to try all other criminal cases.
ARGUMENT
William Blackstone, “whose works constituted the preeminent authority on English law for the founding generation,” Alden v. Maine, 527 US 706, 715 (1999), explained long ago that the specific right to a jury of twelve is older and more firmly established, even, than the right to counsel in criminal cases. 4 William Blackstone, Commentaries on the Laws of England, ch. 27 (“Of Trial and Conviction”).
Indeed, the right to trial by jury was protected in Article 39 of the Magna Carta in 1215: “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way . . . except by the lawful judgment of his equals . . . . .”
Blackstone traced the twelve-person jury right to the ancient feudal system of trial by “a tribunal composed of twelve good men and true,” and he wrote that “it is the most transcendent privilege which any subject can be enjoy or wish for, that he cannot be affected in his property, his liberty or his person, but by the unanimous consent of twelve of his neighbours and equals.” 3 Blackstone, ch. 23 (“Of the Trial by Jury”) (emphasis supplied).
In Thompson v. Utah, 170 U.S. 343 (1898), the Court considered “whether the jury referred to in the original constitution and in the sixth amendment is a jury constituted, as it was at common law, of twelve persons, neither more nor less,” and the Court concluded that “[t]his question must be answered in the affirmative.” Id. at 349. The Court noted that since the time of Magna Carta, the word “jury” had been understood to mean a body of twelve. Id. at 349–50 (“When Magna Charta declared that no freeman should be deprived of life, etc., ‘but by the judgment of his peers or by the law of the land,’ it referred to a trial by twelve jurors.”). Because that understanding had been accepted since 1215, the Court reasoned, “[i]t must” have been “that the word ‘jury’” in the Sixth Amendment was “placed in the constitution of the United States with reference to [that] meaning affixed to [it].” Id. at 350.
After Thompson, the Court continued for another seventy years to cite the basic principle that the Sixth Amendment requires a twelve-person jury in criminal cases; for instance, in 1900, the Court explained that “there [could] be no doubt” “[t]hat a jury composed, as at common law, of twelve jurors was intended by the Sixth Amendment to the Federal Constitution.” Maxwell v. Dow, 176 U.S. 581, 586 (1900).
Thirty years later, the Court reiterated that it was “not open to question” that “the phrase ‘trial by jury’” in the Constitution incorporated a jury’s “essential elements” as “they were recognized in this country and England,” including the requirement that juries “consist of twelve men, neither more nor less.” Patton v. United States, 281 U.S. 276, 288 (1930) (emphasis supplied). As recently as 1968, the Court remarked that “by the time our Constitution was written, jury trials in criminal cases had been in existence for several centuries and carried impressive credentials traced by many to Magna Carta,” such as the necessary inclusion of twelve members. Duncan v. Louisiana, 391 U.S. 145, 151–152 (1968).
In Reid v. Covert, 354 U.S. 1, 10 (1957), the Court reiterated: “Trial by jury in a court of law and in accordance with traditional modes of procedure after an indictment by grand jury has served and remains one of our most vital barriers to governmental arbitrariness.” “These elemental procedural safeguards were embedded in our Constitution to secure their inviolateness and sanctity against the passing demands of expediency or convenience.” Id.
In Williams v. Florida, 399 U.S. 78 (1970), however, the Court retreated from this clear precedent by holding that a six-person jury does not violate the Sixth Amendment.
The decision in Williams is contrary to the original understanding of the Sixth Amendment at the time of the Founding. See Cunningham v. State, 144 S. Ct. 1287-88 (2024) (Gorsuch, J., dissenting from denial of certiorari). Even Williams recognized that the Framers “may well” have had “the usual expectation” in drafting the Sixth Amendment “that the jury would consist of 12” members—but Williams nevertheless reasoned that such “purely historical considerations” were somehow not dispositive. Id., 399 U.S. at 98–99.
Williams focused on the “function” that the jury plays in the Constitution and concluded that the “essential feature” of a jury is that it leaves justice to the “commonsense judgment of a group of laymen,” and that it thus allows “guilt or innocence” to be determined via “community participation and [with] shared responsibility.” Id. at 100–01. Williams said that “currently available evidence [and] theory” suggested that its function could just as easily be performed by six jurors as by twelve. Id. at 101–102 & n.48; cf. Burch v. Louisiana, 441 U.S. 130, 137 (1979) (acknowledging that Williams and its progeny “departed from the strictly historical requirements of jury trial”).
Williams is contrary to the history and precedents discussed above and cannot be squared with the subsequent ruling in Ramos v. Louisiana, 590 U. S. 83 (2020), holding that the Sixth Amendment’s requirement of a “trial by an impartial jury” encompasses what the term “meant at the Sixth Amendment’s adoption.” Id. at 90. The term meant trial by a jury of twelve people whose verdict must be unanimous. As the Court noted in Ramos, Blackstone recognized that under the common law, “no person could be found guilty of a serious crime unless ‘the truth of every accusation . . . should . . . be confirmed by the unanimous suffrage of twelve of his equals and neighbors[.]” Id. (emphasis added). “A ‘verdict, taken from eleven, was no verdict’ at all.” Id.
Indeed, Ramos held that the Sixth Amendment requires a unanimous verdict to convict a person of a serious offense. In reaching that conclusion, the Court overturned Apodaca v. Oregon, 406 U.S. 404 (1972), a decision that the Court faulted for “subject[ing] the ancient guarantee of a unanimous jury verdict to its own functionalist assessment.” 590 U.S. at 100.
The reasoning of Ramos vitiates the flawed reasoning on which Williams rests. Ramos rejected the same kind of “cost-benefit analysis” undertaken in Williams, observing that it is not for the Court to “distinguish between the historic features of common law jury trials that (we think) serve ‘important enough functions to migrate silently into the Sixth Amendment and those that don’t.’” 590 U.S. at 98. The Court wrote that the Sixth Amendment right to a jury trial must be restored to its original meaning, which included the right to jury unanimity:
Our real objection here isn’t that the Apodaca plurality’s cost-benefit analysis was too skimpy. The deeper problem is that the plurality subjected the ancient guarantee of a unanimous jury verdict to its own functionalist assessment in the first place. And Louisiana asks us to repeat the error today, just replacing Apodaca’s functionalist assessment with our own updated version. All this overlooks the fact that, at the time of the Sixth Amendment’s adoption, the right to trial by jury included a right to a unanimous verdict. When the American people chose to enshrine that right in the Constitution, they weren’t suggesting fruitful topics for future cost-benefit analyses. They were seeking to ensure that their children’s children would enjoy the same hard-won liberty they enjoyed. As judges, it is not our role to reassess whether the right to a unanimous jury is “important enough” to retain. With humility, we must accept that this right may serve purposes evading our current notice. We are entrusted to preserve and protect that liberty, not balance it away aided by no more than social statistics.
Ramos, 590 U.S. at 100 (emphasis in original; footnote omitted).
The same reasoning applies to the historical right to a jury of twelve: When the People enshrined the jury trial right in the Constitution, they did not attach a rider that future judges could undermine it based on latter-day social science views (which, by the way, fly in the face of common sense and trial judges’ lived experience).
Perforce, if the functional logic of Williams is accurate in asserting that the Sixth Amendment is subject to reinterpretation based on social science, then the issue must be periodically revisited to determine whether the social science holds up. Yet the research on which the opinion was based was out of date shortly after the opinion issued.
Williams “f[ou]nd little reason to think” that the goals of the jury guarantee, which included providing “a fair possibility for obtaining a representative[] cross-section of the community,” were “in any meaningful sense less likely to be achieved when the jury numbers six, than when it numbers 12.” Id. 399 U.S. at 100. It theorized that “in practice the difference between the 12-man and the six-man jury in terms of the cross-section of the community represented seems likely to be negligible.” Id. at 102.
Since Williams, that determination has proven incorrect. The Court acknowledged as much just eight years later in Ballew v. Georgia, 435 U.S. 223 (1978), when it concluded that the Sixth Amendment barred the use of a five-person jury. Although Ballew did not overturn Williams, it observed that empirical studies conducted in the intervening years highlighted several problems with its assumptions. For example, Ballew noted that more recent research showed that (1) “smaller juries are less likely to foster effective group deliberation,” id. at 233, (2) smaller juries may be less accurate and cause “increasing inconsistency” in verdict results, id. at 234, (3) the chance for hung juries decreases with smaller juries, disproportionally harming the defendant, id. at 236; and (4) decreasing jury sizes “foretell[] problems … for the representation of minority groups in the community,” undermining a jury’s likelihood of being “truly representative of the community,” id. at 236–37. Moreover, the Ballew Court “admit[ted]” that it “d[id] not pretend to discern a clear line between six members and five,” effectively acknowledging that the studies it relied on also cast doubt on the effectiveness of the six-member jury. Id. at 239; see also id. at 245–46 (Powell, J.) (agreeing that five-member juries are unconstitutional, while acknowledging that “the line between five- and six-member juries is difficult to justify”).
Post-Ballew research has further undermined Williams. As already noted, Williams itself identified the “function” of the Sixth Amendment as leaving justice to the “commonsense judgment of a group of laymen” and thus allowing “guilt or innocence” to be determined via “community participation and [with] shared responsibility.” 399 U.S. at 100–01. That function is thwarted by reducing the number of jurors to six. Smaller juries are less representative of the community and less consistent than larger juries. See, e.g., Shamena Anwar, et al., The Impact of Jury Race In Criminal Trials, 127 Q.J. Of Econ. 1017, 1049 (2012) (finding that “increasing the number of jurors on the seated jury would substantially reduce the variability of the trial outcomes, increase black representation in the jury pool and on seated juries, and make trial outcomes more equal for white and black defendants”); Diamond et al., Achieving Diversity on the Jury: Jury Size and the Peremptory Challenge, 6 J. of Empirical Legal Stud. 425, 427 (Sept. 2009) (“reducing jury size inevitably has a drastic effect on the representation of minority group members on the jury”); Higginbotham et al., Better by the Dozen: Bringing Back the Twelve-Person Civil Jury, 104 Judicature 47, 52 (Summer 2020) (“Larger juries are also more inclusive and more representative of the community.… In reality, cutting the size of the jury dramatically increases the chance of excluding minorities.”).
Other important considerations also weigh in favor of the twelve-member jury. Twelve-member juries (a) deliberate longer, (b) recall evidence better, and (c) rely less on irrelevant factors during deliberation. See Smith & Saks, The Case for Overturning Williams v. Florida and the Six-Person Jury, 60 Fla. L. Rev. 441, 465 (2008).
Minority views are also more likely to be thoroughly expressed in a larger jury, as “having a large minority helps make the minority subgroup more influential,” and, unsurprisingly, “the chance of minority members having allies is greater on a twelve-person jury.” Smith & Saks, 60 Fla. L. Rev. at 466. Finally, larger juries deliver more predictable results. In the civil context, for example, “[s]ix-person juries are four times more likely to return extremely high or low damage awards compared to the average.” Higginbotham et al., 104 Judicature at 52.
The mini-jury of solely six jurors is not merely unconstitutional. It is at its root affirmatively anti-Constitutional. Indeed, the jury of six first saw light at the birth of the Jim Crow era, as former Confederates regained power in Southern states and state prosecutors made a concerted effort to prevent blacks from serving on jurors.
Importantly, the history of Florida’s rule can be traced to the Jim Crow era. Justice Gorsuch has observed that “[d]uring the Jim Crow era, some States restricted the size of juries and abandoned the demand for a unanimous verdict as part of a deliberate and systematic effort to suppress minority voices in public affairs.” Khorrami v. Arizona, 143 S. Ct. 22, 27 (2022) (Gorsuch, J., dissenting from denial of certiorari) (citations omitted). He noted, however, that Arizona’s law was likely motivated by costs, not race. Id. On the other hand, Florida’s jury of six did arise in that Jim Crow era of “deliberate and systematic effort[s] to suppress minority voices in public affairs.” Id. The historical background is as follows.
In 1875, the Jury Clause of the 1868 Florida constitution was amended to provide that the number of jurors “for the trial of causes in any court may be fixed by law.” See Florida Fertilizer & Mfg. Co. v. Boswell, 34 So. 241, 241 (Fla. 1903). Tellingly, he common law rule of a jury of twelve was still kept in Florida while federal troops remained in the state. There was no provision for a jury of less than twelve until after Reconstruction ended in 1877, when the Florida Legislature enacted a provision specifying a jury of six in Chapter 3010, section 6, Laws of Florida (1877). See Gibson v. State, 16 Fla. 291, 297–98 (1877); Florida Fertilizer, 34 So. at 241.
The Florida Legislature enacted chapter 3010 with the jury-of- six provision on February 17, 1877. Gibson, 16 Fla. at 294. This was less than a month after the last federal troops were withdrawn from Florida in January 1877. See Jerrell H. Shofner, Reconstruction and Renewal, 1865–1877, in The History of Florida 273 (Michael Gannon, ed., first paperback edition 2018) (“there were [no federal troops] in Florida after 23 January 1877”).
On its face, the 1868 constitution extended the franchise to black men, but the historical context shows that that it was part of the overall resistance to Reconstruction's efforts to protect the rights of black citizens. The constitution was the product of a remarkable series of events including a coup in which leaders of the white southern (or native) faction took possession of the assembly hall in the middle of the night, excluding Radical Republican delegates from the proceedings. See Richard L. Hume, Membership of the Florida Constitutional Convention of 1868: A Case Study of Republican Factionalism in the Reconstruction South, 51 Fla. Hist. Q. 1, 5–6 (1972); Shofner at 266. A reconciliation was affected as the “outside” whites “united with the majority of the body’s native whites to frame a constitution designed to continue white dominance.” Hume at 15.
The purpose of the resulting 1868 Constitution was spelled out explicitly by Harrison Reed, a leader of the prevailing faction and the first governor elected under the 1868 constitution; Reed wrote to Senator Yulee that the new constitution was constructed to bar blacks from legislative office: “Under our Constitution the Judiciary & State officers will be appointed & the apportionment will prevent a negro legislature.” Hume, 15–16. See also Shofner 266.
Smaller juries and non-unanimous verdicts were part and parcel of the Jim Crow era effort “to suppress minority voices in public affairs.” Khorrami v. Arizona, 143 S. Ct. 22, 27 (2022) (Gorsuch, J., dissenting from denial of certiorari); see also Ramos, 590 U.S. at 126–27 (Kavanaugh, J., concurring) (non-unanimity was enacted “as one pillar of a comprehensive and brutal program of racist Jim Crow measures against African-Americans, especially in voting and jury service.”). The history of Florida’s jury of six arises from the same anti-Constitutional historical context.
When the Florida Legislature reduced the size of juries from twelve to six in 1877, it also re-established the racist “integrity, fair character, sound judgment and intelligence” test for jury service. Ch. 3010, Laws of Fla. (1877). This discretionary standard was “used to eliminate almost every black citizen from the southern trial venire.” Douglas L. Colbert, Challenging the Challenge: Thirteenth Amendment as a Prohibition against the Racial Use of Peremptory Challenges, 76 Corn. L. Rev. 1, 89-90 (1990).
So rare was it for an African American to serve on a jury that it was worthy of a news article; this was so even well into the twentieth century:
It is strange that the presence of a negro on the jury should not have attracted sufficient attention to have caused an inquiry into his eligibility as a jury man.
That Federal Jury, Panama City Pilot, Nov. 27, 1924, at 1.
At one point it looked as though the first negro juror in Monroe County was to be selected.
Child Molesting Trial Jury Chosen, Key West Citizen, Dec. 11, 1952, at 1, 3.
A negro juror was picked today to try Felix Combs, a negro roustabout, for raping a Clearwater woman. Selection of Henry Davis of Tarpon Springs marked one of the few times a negro has been selected for jury duty.
Negro Juror, Sanford Herald, Oct. 4, 1948, at 1.
The names of several Negroes were included in the 1959 jury list. Last fall, the county's first Negro juror served when Calvin Smith was named on the venire which heard a cattle rustling case in Circuit Court.
First Two Women Are Picked for Possible Jury Duty in County, Citrus Cnty. Chron., Feb. 16, 1950, at 1.
The trial are charged with misappropriation of funds. A jury was completed this morning, consisting of eleven white men and one negro.
One Negro on the Jury, DeLand Daily News, March 3, 1915, at 3.
CONCLUSION
Williams v. Florida, 399 U.S. 78 (1970) notwithstanding, the Sixth and Fourteenth Amendments require a jury of twelve, and thus, Defendant respectfully requests that this court order a twelve-person jury in the trial(s) in this case.
Currently certiorari has been granted in the United States Supreme Court on this issue in a Florida case:
25-6623 KIAN V. FLORIDA
DECISION BELOW: 421 So. 3d 439
CERT. GRANTED 6/15/2026
QUESTION PRESENTED: Whether Petitioner was de[p]rived of his right, under the Sixth and Fourteenth Amendments, to a trial by a 12-person jury when the defendant is charged with a serious felony?
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing document has been sent by the electronic portal to the State Attorney’s Office and the Clerk of Court on August 28th, 2026.