Amicus Curiae Brief — Jose Joya Parada, Oscar Armando Sorto Romero, Milton Portillo Rodriguez, and Juan Carlos Sandoval Rodriguez, Petitioners v. United States

No. 25-166

IN THE

Supreme Court of the United States

JOSE JOYA PARADA, et al.,

Petitioners,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

BRIEF OF THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS

David B. Smith

NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS

1600 L St., NW

Washington, DC 20036

Arjun Ogale

GIBSON, DUNN & CRUTCHER LLP

2001 Ross Ave., Ste. 2100

Dallas, TX 75201

Matt Aidan Getz

Counsel of Record

Kahn A. Scolnick

Patrick J. Fuster

Paige H. Petrashko

GIBSON, DUNN & CRUTCHER LLP

333 South Grand Ave.

Los Angeles, CA 90071

(213) 229-7754

mgetz@gibsondunn.com

T. Hunter Mason

GIBSON, DUNN & CRUTCHER LLP

1700 M St., NW

Washington, DC 20036

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE............................. 1

SUMMARY OF ARGUMENT ..................................... 2

ARGUMENT ............................................................... 4

I.

The historical record establishes that the right to

trial by jury meant a right to a jury of twelve .....4

II. Williams wrongly overrode the jury-trial right’s

original meaning ...................................................7

A. Williams improperly balanced away a key

constitutional guarantee................................8

B. A jury of twelve better serves the purposes

of the jury-trial right .................................... 11

III. Overruling Williams would not have undue

consequences ....................................................... 18

CONCLUSION .......................................................... 21

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Apodaca v. Oregon,

406 U.S. 404 (1972) .................................... 3, 10, 11

Baldwin v. New York,

399 U.S. 66 (1970) ................................................ 21

Ballew v. Georgia,

435 U.S. 223 (1978) .............................................. 12

Blakely v. Washington,

542 U.S. 296 (2004) .............................................. 12

Cancemi v. People,

18 N.Y. 128 (1858).................................................. 6

Capital Traction Co. v. Hof,

174 U.S. 1 (1899) .................................................... 7

Carpenter v. State,

5 Miss. 163 (High Ct. Err. & App. 1839) ............... 6

Danforth v. Minnesota,

552 U.S. 264 (2008) .............................................. 21

Duncan v. Louisiana,

391 U.S. 145 (1968) .......................... 4, 7, 12, 18, 19

Edwards v. Vannoy,

593 U.S. 255 (2021) .......................................... 4, 20

Emerick v. Harris,

1 Binn. 416 (Pa. 1808)............................................ 6

Foote v. Lawrence,

1 Stew. 483 (Ala. 1828) .......................................... 6

iii

Ex parte Grossman,

267 U.S. 87 (1925) .................................................. 5

Kahler v. Kansas,

589 U.S. 271 (2020) ................................................ 5

Khorrami v. Arizona,

143 S. Ct. 22 (2022) ................................ 3, 9, 18, 19

Maxwell v. Dow,

176 U.S. 581 (1900) ................................................ 7

N.Y. State Rifle & Pistol Ass’n v. Bruen,

597 U.S. 1 (2022) .................................................... 9

Patton v. United States,

281 U.S. 276 (1930) ...................................... 2, 7, 19

People v. Hampton,

96 Cal. App. 5th 965 (2023) ................................. 20

Ramos v. Louisiana,

590 U.S. 83 (2020) ................ 3, 4, 5, 8, 9, 10, 11, 21

Rassmussen v. United States,

197 U.S. 516 (1905) ................................................ 7

Smith v. Alabama,

124 U.S. 465 (1888) ................................................ 8

Teague v. Lane,

489 U.S. 288 (1989) .............................................. 20

Thompson v. Utah,

170 U.S. 343 (1898) ............................................ 5, 7

United States v. Brown,

996 F.3d 1171 (11th Cir. 2021) ............................ 14

United States v. Smith,

18 U.S. (5 Wheat.) 153 (1820) ............................ 3, 8

iv

United States v. Symington,

195 F.3d 1080 (9th Cir. 1999) .............................. 15

Wesberry v. Sanders,

376 U.S. 1 (1964) .................................................... 7

Wheaton v. Peters,

33 U.S. (8 Pet.) 591 (1834) ............................... 3, 10

Williams v. Florida,

399 U.S. 78 (1970) ............... 2, 3, 7, 8, 9, 10, 11, 12,

.......................................... 13, 14, 15, 17, 18, 20, 21

Work v. State,

2 Ohio St. 296 (1853) ............................................. 6

Zylstra v. Corp. of Charleston,

1 S.C.L. 382 (Ct. Com. Pl. 1794) ............................ 6

Constitutional Provisions

U.S. Const. art. III, § 2 ................................................ 4

U.S. Const. amend. VI ................. 4, 7, 9, 10, 11, 18, 19

U.S. Const. amend. XIV ............................................ 19

Rules

Fed. R. Crim. P. 23 ........................................ 13, 14, 19

Fed. R. Crim. P. 23(b)(2) ........................................... 19

Fed. R. Crim. P. 23(b)(3) ........... 3, 4, 13, 14, 15, 19, 20

Fed. R. Crim. P. 24 .................................................... 20

Sup. Ct. R. 37.2 ............................................................ 1

Historical Materials

Bacon, A New Abridgment of the Law

(4th ed. 1778).......................................................... 5

v

Bishop, Commentaries on the Law of

Criminal Procedure (1866) .................................... 7

Blackstone, Commentaries on the Laws

of England (1768) ............................................... 2, 5

Cooley, Constitutional Limitations (1868) ................. 7

N.Y. Charter of Liberties & Privileges

(1683), in Lincoln, Constitutional

History of New York (1906) ................................... 6

Story, Commentaries on the Constitution

of the United States (1833) .................................. 12

Wilson, Of Juries, in Collected Works of

James Wilson (Hall & Hall eds. 2007) .................. 7

Other Authorities

Amar, Reinventing Juries: Ten

Suggested Reforms,

28 U.C. Davis L. Rev. 1169 (1995) ...................... 17

Arnold, Trial by Jury: The

Constitutional Right to a Jury of

Twelve in Civil Trials,

22 Hofstra L. Rev. 1 (1993) ............................ 16, 17

Barkow, Recharging the Jury: The

Criminal Jury’s Constitutional Role

in an Era of Mandatory Sentencing,

152 U. Pa. L. Rev. 33 (2003) ................................ 12

Bellin, An Inestimable Safeguard Gives Way to

Practicality: Eliminating the Juror Who

“Refuses to Deliberate” Under Federal Rule

of Criminal Procedure 23(b)(3),

36 U. Mem. L. Rev. 631 (2006) ............................ 14

vi

Carrington, The Seventh Amendment:

Some Bicentennial Reflections,

1990 U. Chi. Legal F. 33 .......................... 15, 16, 18

Kaye, And Then There Were Twelve:

Statistical Reasoning, the Supreme

Court, and the Size of the Jury,

68 Calif. L. Rev. 1004 (1980) ......................... 15, 16

Miller, Six of One Is Not a Dozen of the Other:

A Reexamination of Williams v. Florida and

the Size of State Criminal Juries,

146 U. Pa. L. Rev. 621 (1998) .............. 5, 13, 16, 18

Offit, Reimagining the Inclusive Jury,

57 U.C. Davis L. Rev. 2691 (2024) ...................... 20

Reichelt, Standing Alone: Conformity, Coercion,

and the Protection of the Holdout Juror,

40 U. Mich. J.L. Reform 569 (2007) .................... 14

Rossner & Tait, Virtual Technology and the

Changing Rituals of Courtroom Justice,

98 Chi.-Kent L. Rev. 251 (2023) .......................... 20

Saks & Marti, A Meta-Analysis of the

Effects of Jury Size,

21 Law & Hum. Behav. 451 (1997) ......... 15, 16, 17

Su & Goravara, What Is a Jury?,

103 N.C. L. Rev. 969 (2025) ............................. 6, 16

Valenti & Downing, Six Versus Twelve

Member Juries: An Experimental Test of

the Supreme Court Assumption of

Functional Equivalence, 1 Personality &

Soc. Psychol. Bull. 273 (1974) .............................. 13

vii

Webster, Preserving Fundamental Rights in the

Realm of Mid-Deliberation Juror Removal,

52 U. Mem. L. Rev. 1069 (2022) .................... 14, 15

Zeisel, And Then There Were None: The

Diminution of the Federal Jury,

38 U. Chi. L. Rev. 710 (1971)................... 12, 13, 17

IN THE

Supreme Court of the United States

No. 25-166

JOSE JOYA PARADA,

Petitioners,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

BRIEF OF THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS

INTEREST OF AMICUS CURIAE*

The National Association of Criminal Defense

Lawyers, or NACDL, is a nonprofit voluntary professional bar association that works on behalf of criminal

defense attorneys to ensure justice and due process for

those accused of crimes or misconduct. NACDL was

* No counsel for a party authored this brief in whole or in part,

and no entity or person other than NACDL, its members, and its

counsel made a monetary contribution intended to fund the preparation or submission of this brief. Counsel of record for the parties received notice of NACDL’s intent to file this brief at least

10 days before its due date under this Court’s Rule 37.2.

2

founded in 1958 and has a nationwide membership of

many thousands of direct members and up to 40,000

attorneys in affiliate organizations. NACDL is dedicated to advancing the proper, efficient, and fair administration of justice. NACDL files many amicus

briefs each year in this Court and other federal and

state courts, seeking to assist in cases presenting issues important to criminal defendants, criminal defense lawyers, and the criminal legal system as a

whole.

SUMMARY OF ARGUMENT

I. Few rights were as cherished or as well settled

at the time of the Founding as the right to a trial by

jury in criminal cases. And when that right was twice

written into the Constitution, it carried with it established characteristics—including that conviction required “the unanimous consent of twelve.” 3 Blackstone, Commentaries on the Laws of England 379

(1768). The rule that trial by jury meant a trial by

twelve was so firmly cemented at common law and

recognized by Founding-era sources that this Court

once called the constitutional requirement of a twelvemember criminal jury “not open to question.” Patton v. United States, 281 U.S. 276, 288 (1930).

II. But the Court lost its way in Williams v. Florida, 399 U.S. 78 (1970). There, the Court recognized

the historical and constitutional heritage of the

twelve-member jury—but discarded that evidence in

favor of a functionalist analysis of whether a jury of

twelve was worth requiring. Williams was grievously

wrong in two respects.

First, Williams erred in discarding history and deciding for itself whether the size of the jury required

at common law was an “important enough” right to

3

preserve. Ramos v. Louisiana, 590 U.S. 83, 100

(2020). When the Framers preserved a common-law

right in the Constitution, the settled contents of that

right were “necessarily included, as much as if they

stood in the text.” United States v. Smith, 18 U.S.

(5 Wheat.) 153, 160 (1820). Centuries of common-law

lessons warrant respect because they reflect “the wisdom, counsel, experience and observation of many

ages.” Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 672

(1834). Williams was wrong to discard those lessons

in favor of its own functionalist analysis. Ramos, 590

U.S. at 99-100.

Second, the functionalist analysis in Williams undermined the jury’s proper functioning. Even “[b]efore

the ink dried on the decision,” and especially “in the

years since,” social science and experience have confirmed the wisdom of the twelve-member jury—and

the dangers of permitting trial by fewer than twelve.

Khorrami v. Arizona, 143 S. Ct. 22, 26-27 (2022) (Gorsuch, J., dissenting from denial of certiorari). Juries

of twelve counteract prosecutorial and judicial overreach, produce accurate and sensible decisions, and

facilitate broad community participation in the criminal adjudication process. Downward departures from

twelve, conversely, threaten all those core functions of

the jury-trial right. Federal Rule of Criminal Procedure 23(b)(3) squarely implicates those concerns, especially because the rule is easily susceptible to

abuses in the form of excluding holdout jurors who

might otherwise produce a mistrial.

III. Just as in Ramos this Court corrected the aberration of Apodaca v. Oregon, 406 U.S. 404 (1972),

and restored the jury-trial right’s long-recognized

unanimity requirement, in this case the Court should

correct the aberration of Williams and restore the

4

jury-trial right’s equally well-settled requirement of a

twelve-member jury. Doing so will ensure that criminal defendants receive the vital protections the Framers intended but will not have undue consequences.

The enormous majority of the states already comply

with the Constitution’s original meaning. And in the

federal system (and in states that mirror that system),

there are plenty of acceptable alternatives for the

problem that Rule 23(b)(3) was designed to address.

Plus, as in Ramos, a decision restoring the Constitution’s original meaning will not yield any path to collateral attacks in cases involving final convictions by

fewer than twelve jurors. Edwards v. Vannoy, 593

U.S. 255, 272 (2021). Ultimately, any disruption from

correcting course will be minor—and a fair price to

pay for re-enshrining one of the most vital rights on

which the Framers insisted.

ARGUMENT

I.

The historical record establishes that the

right to trial by jury meant a right to a jury

of twelve.

Jury trials weren’t a new idea in 1791. When the

“Constitution was written, jury trial in criminal cases

had been in existence in England for several centuries

and carried impressive credentials traced by many to

Magna Carta.” Duncan v. Louisiana, 391 U.S. 145,

151 (1968). The Framers valued that right so much

that they enshrined it in the Constitution twice over.

U.S. Const. art. III, § 2 (“Trial of all Crimes . . . shall

be by Jury”); id. amend. VI (criminal defendants shall

have the right to trial by an “impartial jury” in “all

criminal prosecutions”). And when the Framers twice

insisted on trial by jury in criminal cases, they were

drawing from centuries of inherited “meaning about

5

the content and requirements of a jury trial.” Ramos v.

Louisiana, 590 U.S. 83, 89 (2020); accord, e.g., Ex parte

Grossman, 267 U.S. 87, 108-09 (1925) (the “language

of the Constitution cannot be interpreted safely except

by reference to the common law and to British institutions as they were when the instrument was framed

and adopted”).

Prominent among those historical features was

that trial by “jury” meant trial by twelve—not by

eleven or any lower number. That understanding

spanned 600 years, from its common-law origins to

early American practice through this Court’s precedents up until 1970.

Start with the common law. The “twelve-person

unanimous criminal jury was an institution with a

nearly four-hundred-year-old tradition in England”

before the Sixth Amendment’s ratification. Miller, Six

of One Is Not a Dozen of the Other: A Reexamination

of Williams v. Florida and the Size of State Criminal

Juries, 146 U. Pa. L. Rev. 621, 643 (1998). Leading

English authorities equated the jury-trial right with a

right to trial by twelve jurors. See Kahler v. Kansas,

589 U.S. 271, 279 (2020) (in assessing “‘historical

practice,’” this Court “look[s] primarily to eminent

common-law authorities (Blackstone, Coke, Hale, and

the like)”). Blackstone, for instance, explained that a

person couldn’t be “affected either in his property, his

liberty, or his person, but by the unanimous consent

of twelve of his neighbours and equals.” 3 Blackstone,

Commentaries on the Laws of England 379 (1768).

Another influential treatise observed that a jury consists of “twelve, and can be neither more nor less.” 3

Bacon, A New Abridgment of the Law 234 (4th ed.

1778); see Thompson v. Utah, 170 U.S. 343, 350 (1898)

(citing Bacon’s Abridgment to underscore that trial by

6

jury was one of “the principal excellencies of our constitution” and required a “verdict of twelve”).

The colonists brought that common-law tradition

to this side of the Atlantic. Several of the colonies’

foundational documents used “twelve men” as a proxy

for the word “jury.” In its first legislative session, the

New York General Assembly provided that “Tryalls

shall be by the verdict of twelve men.” N.Y. Charter

of Liberties & Privileges § 17 (1683), in Lincoln, Constitutional History of New York 101 (1906). The Pennsylvania Frame of Government likewise stated that

“all trials shall be by twelve men.” See Su & Goravara,

What Is a Jury?, 103 N.C. L. Rev. 969, 998 (2025).

Even where state constitutions didn’t specify that

the right to trial by “jury” meant a trial by twelve,

there was no confusion about what “jury” meant. A

South Carolina court, for example, understood “jury”

to mean “12 men . . . indiscriminately drawn from

every class of their fellow citizens.” Zylstra v. Corp. of

Charleston, 1 S.C.L. 382, 389 (Ct. Com. Pl. 1794). The

Supreme Court of Pennsylvania similarly explained

that the unadorned term “trial by jury” in its 1777 constitution preserved the requirement “‘that all trials

shall be by twelve men.’” Emerick v. Harris, 1 Binn.

416, 426 (Pa. 1808). And state high courts in later

decades continued the tradition of reading “jury” in

criminal cases to mean twelve people. See, e.g.,

Cancemi v. People, 18 N.Y. 128, 138 (1858); Work v.

State, 2 Ohio St. 296, 304 (1853); Carpenter v. State, 5

Miss. 163, 166-67 (High Ct. Err. & App. 1839); Foote v.

Lawrence, 1 Stew. 483, 483 (Ala. 1828).

Prominent legal thinkers at the Founding and in

later decades took no different view. In lectures delivered in Philadelphia “drawing on his experience as

one of the most active members of the Constitutional

7

Convention,” Wesberry v. Sanders, 376 U.S. 1, 17

(1964), Justice Wilson expressed the view that “[t]o

the conviction of a crime, the undoubting and the

unanimous sentiment of the twelve jurors is of indispensable necessity.” Wilson, Of Juries, in 2 Collected

Works of James Wilson 985 (Hall & Hall eds. 2007).

Later treatises echoed the same view that “[a] jury of

less than twelve men is not a jury” at all, so “a statute

authorizing a jury of less, in a case in which the constitution guarantees a jury trial, is void.” 1 Bishop,

Commentaries on the Law of Criminal Procedure

§ 761, at 532 (1866); accord, e.g., Cooley, Constitutional Limitations 319 (1868).

Before 1970, this Court consistently recognized

that 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.” Thompson, 170 U.S. at 349; accord Capital

Traction Co. v. Hof, 174 U.S. 1, 13 (1899); Maxwell v.

Dow, 176 U.S. 581, 586 (1900); Rassmussen v. United

States, 197 U.S. 516, 527 (1905); Patton v. United

States, 281 U.S. 276, 288 (1930); Duncan, 391 U.S. at

151-52. So clear was the historical record on this point

that the Court declared the constitutional requirement of a trial by twelve jurors “not open to question.”

Patton, 281 U.S. at 288.

II. Williams wrongly overrode the jury-trial

right’s original meaning.

In Williams v. Florida, 399 U.S. 78 (1970), this Court

took an unwarranted detour from that rich commonlaw and constitutional tradition—and in the process

seriously undermined the jury-trial right. Williams’s

error unfolded in two steps. First, the Court improperly dismissed as irrelevant the extensive historical

foundations of the jury-trial right. Second, the Court

8

dismissed the requirement of a twelve-person jury

based on a smattering of since-debunked social-science studies and its own views about the importance

of jury size. Both errors cry out for correction—and in

fact, this Court recently corrected similar errors in another aberrational case that clipped the wings of the

jury-trial right.

A.

Williams improperly balanced away a

key constitutional guarantee.

Williams got off on the wrong methodological foot.

Instead of stopping after observing that the commonlaw jury of twelve was a core feature of what trial by

jury meant at the Founding, the Court in Williams

tried to weigh for itself whether the jury’s size was

“important enough” to preserve. Ramos, 590 U.S. at

98. This Court has since rejected that functionalist

approach, re-emphasizing that the meaning of the

jury-trial right turns on “what the term ‘trial by an

impartial jury’ meant at the time of the Sixth Amendment’s adoption.” Id. at 90.

1. Williams’s disregard for the twelve-member

jury is out of step with how this Court interprets the

Constitution. As Justice Story explained in 1820, references to legal terms “as they are found in our treatises of the common law” indicate that their commonlaw “definitions are necessarily included” in their

meaning “as much as if they stood in the text.” United

States v. Smith, 18 U.S. (5 Wheat.) 153, 160 (1820).

For many decades, this Court faithfully applied that

lesson. As the Court explained near the end of the

nineteenth century, “[t]he interpretation of the constitution of the United States is necessarily influenced

by the fact that its provisions are framed in the language of the English common law, and are to be read

in the light of its history.” Smith v. Alabama, 124 U.S.

9

465, 478 (1888). And after a limited number of freewheeling detours, this Court in recent years has “focus[ed] on history”—along with text, tradition, and

well-reasoned precedent—to understand what the

Constitution guarantees. N.Y. State Rifle & Pistol

Ass’n v. Bruen, 597 U.S. 1, 25 (2022).

Sometimes discerning the Constitution’s original

meaning is hard. This isn’t one of those times. Here,

“plenty of evidence exists about the original public

meaning of the Sixth Amendment.” Khorrami v. Arizona, 143 S. Ct. 22, 25 (2022) (Gorsuch, J., dissenting

from denial of certiorari).

Nor is there any true alternative to defining the

institution of the jury by reference to history. Unlike

“broad guarantees of the Constitution whose proper

scope is to be determined in a given instance by a

blend of historical understanding and the adaptation

of purpose to contemporary circumstances,” “[t]he

right to a trial by jury . . . has no enduring meaning

apart from historical form.” Williams, 399 U.S. at 1425 (Harlan, J., dissenting in part and concurring in

part). That historical form was a panel of twelve. See

supra pp. 4-7. So trial by twelve is what the Constitution requires—plain and simple.

In its haste to escape the common law’s wisdom,

Williams overlooked that “the right to trial by jury included a right” to trial by twelve when the Sixth

Amendment was adopted. Ramos, 590 U.S. at 100.

Williams did not second-guess the extensive history

underlying the twelve-member jury. Williams, 399

U.S. at 93-96. But in the Court’s view, that historical

tradition amounted to little more than “mystical or superstitious insights” supporting an “accidental feature” of the jury trial. Id. at 88, 90. And finding no

“explicit decision” in the text governing the size of

10

criminal juries, the Court in Williams then threw in

the towel, deciding that it should “turn[] to other than

purely historical considerations to determine which

features of the jury system, as it existed at common

law, were preserved in the Constitution.” Id. at 99.

The lack of express textual specification is not a

license to cast off “everything history might have

taught us about what it means to have a jury trial.”

Ramos, 590 U.S. at 98 (emphasis omitted). After all,

the common-law tradition “is not the product of the

wisdom of some one man, or society of men, in any one

age, but of the wisdom, counsel, experience and observation of many ages of wise and observing men.”

Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 671-72 (1834).

Long-held traditions like the twelve-person jury “may

serve purposes evading our current notice.” Ramos,

590 U.S. at 100. Williams was wrong to dismiss those

traditions out of hand.

2. Worse than Williams’s abandonment of original meaning was the alternative to which it resorted.

The Court subjected core aspects of the jury-trial right

to a reweighing of “the function that the particular

feature performs and its relation to the purposes of

the jury trial.” Williams, 399 U.S. at 99-100. Under

that functionalist framework, the Court relied on a

handful of (now-debunked) “experiments” and concluded that “the particular number of the body that

makes up the jury” was not an “essential feature” of

the right. Id. at 100.

This Court has already corrected a similar mistake. In Ramos, the Court overruled Apodaca v. Oregon, 406 U.S. 404 (1972), which had held that the

Sixth Amendment did not require a unanimous verdict. Id. at 406 (plurality opinion). Apodaca was Williams’s sequel and billed itself as such. Ibid. (reaching

11

“the same conclusion” as in Williams “with regard to

the requirement of unanimity”). Relying on Williams,

Apodaca too performed an open-ended functionalist

inquiry into “the function served by the jury in contemporary society”—an inquiry that ended in the

Court’s jettisoning the unanimity requirement for

criminal trials. Id. at 410.

Ramos rightly rebuffed the “muddy yardstick” approach that Apodaca borrowed from Williams. 590 U.S.

at 99. The Court explained that such a “breezy costbenefit analysis” cannot inspire “confidence” because

no one can objectively measure the costs and benefits

of a particular feature of the common-law tradition.

Id. at 99-100. Relying on such unmoored balancing,

the Court continued, creates an unacceptably high

risk that courts will “balance . . . away” time-honored

rights based on little more than their own views about

whether the right is “important enough” to merit ongoing fealty. Id. at 100.

Williams erred no less than Apodaca in balancing

away the right to a jury of twelve. As this Court recognized in Ramos, “[w]hen the American people chose

to enshrine [the Sixth Amendment right to jury trial]

in the Constitution, they weren’t suggesting fruitful

topics for future cost-benefit analyses.” 590 U.S. at

100. Instead, “[t]hey were seeking to ensure that their

children’s children would enjoy the same hard-won

liberty they enjoyed.” Ibid. That hard-won liberty “included a right” to be judged by a jury of twelve peers.

Ibid.; see supra pp. 4-7.

B.

A jury of twelve better serves the purposes of the jury-trial right.

Williams should be overruled not only because it

undertook an improper functionalist analysis, but also

12

because that analysis yielded the wrong result. This

Court has identified three primary goals that the jurytrial right serves: (1) “the interposition between the

accused and his accuser of the commonsense judgment of a group of laymen,” Williams, 399 U.S. at 100;

(2) “promot[ing] group deliberation,” Ballew v. Georgia, 435 U.S. 223, 230 (1978) (plurality opinion); and

(3) “provid[ing] a representative cross-section of the

community,” ibid. Social science and common sense

show how a jury of twelve better serves each of these

goals as compared to juries with fewer members.

1. Juries are an essential democratic check

against prosecutorial and judicial overreach. 3 Story,

Commentaries on the Constitution of the United

States § 1774, at 541 (1833). Because juries are outside the government, they “function as [the] circuitbreaker in the [government’s] machinery of justice.”

Blakely v. Washington, 542 U.S. 296, 306 (2004). The

government and the judge are both “repeat player[s]

in the criminal justice process,” and as a result they

can “become desensitized to the enormity of what is at

stake in a criminal proceeding.” Barkow, Recharging

the Jury: The Criminal Jury’s Constitutional Role in

an Era of Mandatory Sentencing, 152 U. Pa. L. Rev.

33, 72 (2003).

Requiring trial by jury ensures that criminal

cases are seen “with a fresh set of eyes” and with “no

institutional bias.” Barkow, supra, at 72. Juries impose their own sense of fair play and are not desensitized to the stakes of one prosecution for having seen

so many other prosecutions. In short, wherever a defendant “preferred the common-sense judgment of a

jury,” he “was to have it.” Duncan, 391 U.S. at 156.

It’s easy to see why a jury of fewer than twelve

provides less of a bulwark. See Zeisel, And Then There

13

Were None: The Diminution of the Federal Jury, 38 U.

Chi. L. Rev. 710, 721 (1971). “To obtain a conviction

under the unanimity rule, the prosecutor must persuade the juror with the highest standard” of reasonable doubt. Ibid. In polling fewer members of the

community, the prosecutor’s job is made easier because she can more likely avoid “the class of jurors

who are most difficult to convince.” Ibid. With fewer

jurors, in other words, it becomes less likely prosecutors will encounter the “representatives of [the doubtful] minority” on which our criminal legal system depends. Ibid.

Empirical studies have proven, even under experimental conditions designed to engender reasonable

doubt, that smaller juries favor conviction at higher

rates. In one such experiment, six-member juries

voted to convict nine out of ten times, while twelveperson juries did so in only two. Valenti & Downing,

Six Versus Twelve Member Juries: An Experimental

Test of the Supreme Court Assumption of Functional

Equivalence, 1 Personality & Soc. Psychol. Bull. 273,

274 (1974). “[B]y permitting criminal juries to be reduced in size,” Williams “quiets voices of reasonable

doubt, potentially leading to more unjust convictions.”

Miller, supra, at 674.

The jury’s role as check against overreach is especially undermined in the context of Federal Rule of

Criminal Procedure 23(b)(3) and its state analogs.

Rule 23(b)(3) allows courts to “excuse a juror” for “good

cause” after “the jury has retired to deliberate” so that

“a jury of 11 persons [may] return a verdict.” Before

Williams, the Rules had codified this Court’s consistent view that conviction required the unanimous

vote of twelve jurors, at least absent the defendant’s

consent to the contrary. Fed. R. Crim. P. 23 advisory

14

committee’s notes to 1944 amendments. But after

Williams, the Rule was amended to allow a verdict by

eleven jurors without consent when the court finds

“good cause” to dismiss a juror after deliberations

begin. Id. advisory committee’s notes to 1983 amendments. That procedure is prone to abuse, permitting

courts—often at the behest of jurors in the majority—

to target jury holdouts and secure a conviction where

a mistrial otherwise would be required. See Bellin, An

Inestimable Safeguard Gives Way to Practicality:

Eliminating the Juror Who “Refuses to Deliberate” Under Federal Rule of Criminal Procedure 23(b)(3), 36 U.

Mem. L. Rev. 631, 636 (2006).

“Without distinguishing the type of conduct necessary to satisfy the good cause standard, courts can

remove jurors for conduct that is slight in comparison

to a defendant’s constitutional rights to a fair trial and

unanimous verdict.” Webster, Preserving Fundamental Rights in the Realm of Mid-Deliberation Juror Removal, 52 U. Mem. L. Rev. 1069, 1099, 1101-02 (2022);

see Reichelt, Standing Alone: Conformity, Coercion,

and the Protection of the Holdout Juror, 40 U. Mich.

J.L. Reform 569, 584 (2007) (“[T]he identification of a

holdout juror is accompanied by allegations of misconduct, refusals to deliberate, or other behavior opposed

by the overwhelming majority of the jury.”).

Jurors dismissed under Rule 23(b)(3) for the oftcited “refusal to deliberate” may well be dissenters

forced out to reach artificial unanimity. Bellin, supra,

at 638. After all, the line between stymying deliberation and disagreeing on the merits of the government’s

case is “‘vanishingly thin.’” United States v. Brown,

996 F.3d 1171, 1184 (11th Cir. 2021).

Such circumvention of the jury’s protective function cannot be corrected, or even identified, in many

15

cases. The deferential abuse-of-discretion standard,

coupled with the typical dearth of a record on jury deliberations, means appellate review of Rule 23(b)(3)

juror dismissals is superficial at best. See Webster,

supra, at 1103; United States v. Symington, 195 F.3d

1080, 1088 n.7 (9th Cir. 1999) (because courts must

avoid “compromising the secrecy of the jury’s deliberations,” the “evidence available to the district court”

will be “necessarily limited”). And because jurors are

discouraged from discussing deliberations after trial,

many defendants will never even discover that such

impropriety took place. Undoing Williams—and, with

it, Rule 23(b)(3)—would reduce the risk of these grave

and often undetectable abuses.

2. The jury’s truth-seeking function is also better

served by having twelve jurors as opposed to fewer. In

the half-century since Williams, studies have shown

that the traditional twelve-person jury is better able

to process the evidence, arguments, and instructions

in a lengthy or complex trial. More jurors mean more

resources to improve reasoning, whether through

“recollection of testimony, recognition of inconsistencies, or comprehension of the court’s instructions.”

Kaye, And Then There Were Twelve: Statistical Reasoning, the Supreme Court, and the Size of the Jury,

68 Calif. L. Rev. 1004, 1020 (1980); accord Saks &

Marti, A Meta-Analysis of the Effects of Jury Size, 21

Law & Hum. Behav. 451, 458 (1997) (“the larger the

decision-making group, the better the decisions will be

because of the increased resources provided by having

more group members”); Carrington, The Seventh

Amendment: Some Bicentennial Reflections, 1990 U.

Chi. Legal F. 33, 54 (“larger groups such as full juries

have greater resources of memory and cognitive understanding . . . and for these reasons make more accurate factual determinations”).

16

As a result, the traditional twelve-person jury is

“more sensitive to the ‘ambiguities in the case’” that

could produce reasonable doubt. Miller, supra, at 671.

Thus, “[s]tudies have demonstrated that seating

twelve jurors will result in a verdict that is a more reliable reflection of the statistical community average.”

Su & Goravara, supra, at 1020. Jurors with fewer

members, conversely, “are more likely to produce outlier verdicts inconsistent with community values.”

Ibid.

Relatedly, “numerous recent studies have demonstrated that the quality of the jury’s discussion and

deliberation is better in larger groups than in smaller

ones.” Arnold, Trial by Jury: The Constitutional Right

to a Jury of Twelve in Civil Trials, 22 Hofstra L. Rev.

1, 31 & n.216 (1993) (collecting studies). Twelvemember juries subject the jurors’ initial impressions,

memories, and conclusions to “more viewpoints, types

of expertise, and mutually cancelling biases.” Kaye,

supra, at 1020; accord Saks & Marti, supra, at 458

(observing “more substantive deliberation” among

twelve jurors, involving “the sharing of more facts,

more ideas, and more challenges to the tentative conclusions of others”). In short, because of the greater

variety of views present, “twelve-person juries facilitate minority resistance to conformity pressure from

the majority, promote a more vigorous deliberation of

the issues, and deter immediate decisions in all but

the most clear-cut cases.” Miller, supra, at 673.

The traditional jury’s capacity for “better testing

of ideas and reactions” yields “more accurate factual

determinations.” Carrington, supra, at 54. And improved accuracy shields the innocent from erroneous

conviction—without making conviction of the guilty

unduly difficult.

17

3. Finally, juries of twelve better achieve “community participation and shared responsibility” in deciding the guilt of the accused. Williams, 399 U.S. at 100.

Williams itself recognized that a jury must be

sizeable enough that it “provide[s] a fair possibility for

obtaining a representative cross-section of the community.” 399 U.S. at 100. Yet the Court satisfied itself with speculation that “the difference between the

12-man and the six-man jury in terms of the crosssection of the community represented” was “likely to

be negligible.” Id. at 102. That speculation has been

proven wrong many times over.

“[I]f we want individual juries to be cross-sectional,

. . . we should want each jury to be of substantial size.”

Amar, Reinventing Juries: Ten Suggested Reforms, 28

U.C. Davis L. Rev. 1169, 1188 (1995) (emphasis omitted). Twelve-member juries are better able to “draw

citizens from different backgrounds,” ibid., improving

the deliberative process and ensuring a broader check

on government abuses. Meanwhile, “the smaller the

size of the jury, the less frequently it even approaches

community representation.” Zeisel, supra, at 716. As

jury size decreases, the odds that a jury will not include a juror representing a minority population—racial, ideological, or otherwise—increases considerably. Saks & Marti, supra, at 457 (“12-person juries

are more likely than 6-person juries to contain at least

one member of whatever minority group is under consideration.”); Arnold, supra, at 30 (discussing a study

showing that 72% of twelve-person juries included minority jurors as compared to 47% of six-person juries).

Excluding minority views undermines the jury’s

representative function in stark ways. With homogeneity, the jury’s deliberative capacities weaken because

there is less “competition among views” putting “ideas

18

and reactions” to a rigorous test. Carrington, supra,

at 54. Lone dissenters—more likely in smaller juries—are more easily pressured to conform with the

majority. See Miller, supra, at 673. Any reduction

from twelve jurors weakens the bulwark against “unfounded criminal charges brought to eliminate enemies,” both because it is easier to exclude sympathetic

community members from a smaller panel and because potential dissenters are less likely to resist the

majority. Duncan, 391 U.S. at 156.

*

*

*

Williams represented both a departure from

sound constitutional methods and a “misapplication of

social-science research.” Miller, supra, at 622. These

errors combined to “trigger[] the ‘unthinkable’ dismantling of an irrevocable constitutional cornerstone.” Ibid. “Before the ink dried on the decision”

and even more “in the years since,” social science and

experience have confirmed Williams’s errors—and

demonstrated how the twelve-person jury passed

down from the common law serves the important

goals of the jury system far better than does a jury of

fewer. Khorrami, 143 S. Ct. at 26-27 (Gorsuch, J., dissenting from denial of certiorari). The Court should

overrule Williams to restore the jury to its full constitutional vigor.

III. Overruling Williams would not have undue

consequences.

Re-enshrining the twelve-member jury as a constitutional requirement would be minimally disruptive to the state and federal criminal systems.

At the state level, the enormous majority of criminal trials already comport with the historical demands

of the Sixth Amendment. Forty-four states generally

19

require a twelve-person jury for serious offenses.

Khorrami, 143 S. Ct. at 23 (Gorsuch, J., dissenting

from denial of certiorari). So even though a ruling on

the Sixth Amendment jury-trial right would apply to

offenses in the states through the Fourteenth Amendment, Duncan, 391 U.S. at 156-58, the criminal justice

systems in the states would be little disturbed.

In the federal system (and in states with rules

analogous to those in the federal system), the only departures from the twelve-person jury are (1) those to

which the defendant consents and (2) those authorized by the court for “good cause” under Rule 23(b)(3).

The former are uncontroversial; a defendant with a

right to a jury also has the corresponding ability to

“consent to be tried by a less number than twelve.”

Patton, 281 U.S. at 290; see Fed. R. Crim. P. 23(b)(2)

(stipulation to reduced jury size). That leaves only

cases like this one, in which a court authorizes an

eleven-person jury to return a verdict without the defendant’s consent under Rule 23(b)(3).

Rule 23(b)(3) serves little practical purpose that

couldn’t be served by alternatives that comport with

the historical jury-trial right. Rule 23(b)(3) was intended to prevent mistrial when, “after the jury has

retired to consider its verdict and any alternate jurors

have been discharged, one of the jurors is seriously incapacitated or otherwise found to be unable to continue service upon the jury.” Fed. R. Crim. P. 23 advisory committee’s notes to 1983 amendments. At the

time, alternate jurors were discharged the minute the

jury retired to deliberate, leaving no mechanism for

substituting jurors who became incapacitated after

deliberations began. See ibid.

Since 1999, however, courts have been able to retain alternates so that they can substitute jurors even

20

after deliberations begin. See Fed. R. Crim. P. 24 advisory committee’s notes to 1999 amendments. Because

a juror can be substituted during deliberations, any

practical justification for authorizing an eleven-juror

verdict without a defendant’s consent has evaporated.

There’s yet another option to avoid mistrial in the

circumstances contemplated by Rule 23(b)(3) that

didn’t exist when it was first adopted: remote deliberations. In the wake of the COVID-19 pandemic, states

began allowing individual jurors to participate in deliberations remotely when public health or other compelling reasons prevent them from being present. See,

e.g., People v. Hampton, 96 Cal. App. 5th 965, 981-82

(2023) (denying new-trial motion where juror appeared remotely for one day of deliberations due to

COVID-19 exposure); see also Offit, Reimagining the

Inclusive Jury, 57 U.C. Davis L. Rev. 2691, 2721

(2024) (virtual platforms “can facilitate confidential

deliberation among jurors who are not gathered in a

single physical space”); Rossner & Tait, Virtual Technology and the Changing Rituals of Courtroom Justice, 98 Chi.-Kent L. Rev. 251, 277 (2023) (discussing

feasibility of virtual deliberations). When defendants

consent to such a procedure, there is little reason to

sacrifice the pivotal right to trial by a jury of twelve.

Overruling Williams also would not subject final

state or federal convictions by fewer than twelve jurors to belated attack. Any rule reversing Williams

and restoring the twelve-member jury-trial right “will

not be applicable to those cases which have become final before the new rules are announced.” Teague v.

Lane, 489 U.S. 288, 310 (1989). This Court has also

clarified that there is no exception for “watershed”

rules, Edwards v. Vannoy, 593 U.S. 255, 272 (2021),

even when a case restores “the original meaning” of a

21

constitutional provision, Danforth v. Minnesota, 552

U.S. 264, 270 (2008).

Ultimately, whatever minor disruptions may result from overruling Williams are the necessary result

of the balance the Framers struck long ago. “[A]dministrative conveniences,” Baldwin v. New York, 399

U.S. 66, 73 (1970) (plurality opinion), are no justification for flagrant violations of one of the Constitution’s

most cherished rights, Ramos, 590 U.S. at 89. Granting review in this case is the first step to stop “perpetuat[ing] something we all know to be wrong” based on

the potential “consequences of being right.” Id. at 111

(opinion of Gorsuch, J.).

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

David B. Smith

NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS

1600 L St., NW

Washington, DC 20036

Arjun Ogale

GIBSON, DUNN & CRUTCHER LLP

2001 Ross Ave., Ste. 2100

Dallas, TX 75201

Matt Aidan Getz

Counsel of Record

Kahn A. Scolnick

Patrick J. Fuster

Paige H. Petrashko

GIBSON, DUNN & CRUTCHER LLP

333 South Grand Ave.

Los Angeles, CA 90071

(213) 229-7754

mgetz@gibsondunn.com

T. Hunter Mason

GIBSON, DUNN & CRUTCHER LLP

1700 M St., NW

Washington, DC 20036

Counsel for Amicus Curiae

September 10, 2025