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, OSCAR ARMANDO SORTO

ROMERO, MILTON PORTILLO RODRIGUEZ, AND

JUAN CARLOS SANDOVAL RODRIGUEZ,

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 AMICI CURIAE OF THE UTAH

ASSOCIATION OF CRIMINAL DEFENSE

LAWYERS AND CONNECTICUT CRIMINAL

DEFENSE LAWYERS ASSOCIATION FOR

PETITIONERS

Douglas J. Thompson

Counsel of Record

MORRISE THOMPSON FORESTA

825 North 900 West,

Orem, UT 84057

(801) 671-8391

doug@utahcrimlaw.com

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

David Ferguson

Executive Director

UTAH ASSOCIATION OF

CRIMINAL DEFENSE

LAWYERS

10 W. 100 S., Ste. 700

Salt Lake City, UT 84101

Ted Koch

President

CONNECTICUT

CRIMINAL DEFENSE

LAWYERS ASSOCIATION

P.O. Box 1766

Waterbury, CT 06721

i

TABLE OF CONTENTS

TABLE OF CONTENTS .............................................. i

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICI CURIAE ................................ 1

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

ARGUMENT ............................................................... 3

I. The Jury Represents the Community in the

Administration of Justice; Small Juries are Less

Likely to Reflect the Broader Community. ................ 4

II.The Jury Serves a Counter-Majoritarian Function;

a Smaller Jury Cannot Serve that Function as Well

as a Jury of Twelve. .................................................... 9

III. The Jury System Is Designed to Satisfy Society’s

Interest, as Well as the Defendant’s Interest, that

Justice Is Done; a Small Jury Does Not Symbolize

the Justice-Serving Role of a Jury. .......................... 14

CONCLUSION .......................................................... 18

ii

TABLE OF AUTHORITIES

Cases

Batson v. Kentucky, 476 U.S. 79,

106 S. Ct. 1712 (1986)................................... 12

Duncan v. Louisiana, 391 US 145,

88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968) .......... 7

Georgia v. McCollum, 505 U.S. 42,

112 S. Ct. 2348 (1992)................................... 11

Irvin v. Dowd, 366 U.S. 717,

81 S. Ct. 1639 (1961) ............................... 12

Jackson v. Virginia, 443 U.S. 307,

99 S. Ct. 2781 (1979)..................................... 14

Mu'Min v. Virginia, 500 U.S. 415,

111 S. Ct. 1899 (1991) ............................. 12

Norris v. Alabama, 294 U.S. 587,

55 S. Ct. 579 (1935) ................................. 12

Parkland Hosiery Co. v. Shore, 439 U.S. 322,

99 S. Ct. 645, 58 L. Ed. 2d 552 (1979) ...... 7

Powers v. Ohio, 499 U.S. 400

111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991) .. 4, 5

Ramos v. Louisiana, 140 S. Ct. 1390 (2020)...... 12

iii

Steelvest, Inc. v. Scansteel Service Center, Inc.,

908 S.W.2d 104 (Ky. 1995) ............................. 7

Strauder v. West Virginia, 100 U.S. 303,

25 L. Ed. 664 (1879) ................................. 11-12

Taylor v. Louisiana, 419 US 522 (1975) ............ 13

The King v. Sussex Justices, Ex Parte McCarthy,

[1924] 1 KB 256, [1923] EWHC KB 1,

[1924] KB 256 ............................................... 15

Thiel v. S. Pac. Co., 328 U.S. 217,

66 S. Ct. 984 (1946) ................................. 16

Travelers' Ins. Co. v. Selden,

78 F. 285 (4th Cir. 1897) ........................... 7

United States v. Lewis,

638 F. Supp. 573 (W. D. Mich. 1986) ........... 10

United States v. Scott, 437 U.S. 82,

98 S. Ct. 2187 (1978)..................................... 14

Williams v. Florida, 399 U.S. 78, 100,

90 S. Ct. 1893,

26 L. Ed. 2d 446 (1970) .................. 2, 3, 5-6, 18

Constitutions

Ariz. Const. art. 2, sec. 23 ................................ 8, 9

Conn. Const. amend. art. IV ................................ 8

iv

Louis. Const. of 1974 art. 1, § 17 ...................... 8-9

Mass. Const. art. XII ............................................ 9

Utah Const. art. I, sec. 10 .................................... 8

Statutes

Ind. Code § 35-37-1-1(b)(1)................................... 8

LA R.S. 14:2 §2(A)(4)............................................ 8

Mass. G. L. C. 218, § 26A ..................................... 9

Rules

Fla. Rule Crim. Proc. § 3.270 (2019) ................... 8

LA Code Crim. Pro. 782 ....................................... 8

Mass. R. Crim. P. 19(c) ........................................ 9

Treatises and Law Review

Albert W. Alschuler & Andrew G. Deiss, A Brief

History of the Criminal Jury in the United

States, 61 U. CHI. L. REV. 867 (1994) ........... 14

Arthur L. Rizer III, The Race Effect on Wrongful

Convictions, WILLIAM MITCHELL L. REV.

29, 845 (2003) ................................................ 11

Chittaranjan Andrade, Sample Size and its

Importance in Research, INDIAN J.

PSYCH. MED. 42 (2020) .................................. 13

v

Eli Price, Discourse on the Trial by Jury (1863). 7

Founders Online, NATIONAL ARCHIVES, “Adams’

Diary Notes on the Right of Juries: 1771.

Feby. 12.,” in The Adams Papers, Legal

Papers of John Adams, vol. 1, Cases 1–30, ed.

L. Kinvin Wroth and Hiller B. Zobel (1965) .. 6

Founders Online, NATIONAL ARCHIVES, “[February

1771]” in The Adams Papers, Diary and

Autobiography of John Adams,” vol. 2, 17711781, ed. L. H. Butterfield (1961) .................. 5

Joseph T. Karcher, The Case for the Jury System,

CHICAGO-KENT L. REV. 157 (1968) ................. 8

Judge Royal Furgeson, The Jury in To Kill A

Mockingbird: What Went Wrong?, Tex. Bar. J.

488 (2010) ...................................................... 16

Laura I. Appleman, The Lost Meaning of the Jury

Trial Right, 84 IND. L.J. 397 (2009) .............. 5

Sir James FitzJames Stephen, A History of the

Criminal Law of England, vol 1 (1883) ........ 15

Theodore Plucknett, A Concise History of the

Common Law (1956) ....................................... 5

Thomas Ward Frampton, The Jim Crow Jury,

71 VAND. L. REV. 1593 (2018) ....................... 11

vi

William E. Chandler, State Reporter,

REPORTS OF CASES ARGUED AND DETERMINED

IN THE SUPREME JUDICIAL COURT OF NEW

HAMPSHIRE, vol. 41 (1861) ............................ 10

William O. Douglas, The Right of the

People (1958) ................................................... 7

News and Media

12 ANGRY MEN

(Orion-Nova Productions 1957) .................... 16

Joel Moore, Lydian Coombs, and Dorothy Sedovic,

Jury Acquits Man Charged with Planning

Rapper Young Dolph’s Murder, KCTV 5

(Aug 22, 2025) ............................................... 16

MARVEL’S DAREDEVIL, se. 2, ep. 8

(Marvel Television 2016) .............................. 16

RUNAWAY JURY

(Regency Enterprises 2003).......................... 16

THE UNTOUCHABLES

(Paramount Pictures 1987) .......................... 16

1

INTEREST OF AMICI CURIAE 1

The Utah Association of Criminal Defense

Lawyers (UACDL) is a non-profit voluntary

professional legal organization that brings together

criminal defense attorneys to develop education,

support, and advocacy for criminal defense in Utah.

As a professional organization committed to

protecting the last resort of any defendant: the jury

trial. Felony juries in Utah are tried to eight

members excepting capital cases. UACDL seeks to

strengthen the trial rights of Utah’s defendants.

The Connecticut Criminal Defense Lawyers’

Association (CCDLA) is a non-profit, statewide

organization that consists of both private lawyer and

public defenders. The attorneys who makeup

CCDLA represent criminal defendants in every

courthouse in the State of Connecticut and regularly

try cases before juries of 6 people. Connecticut law

permits juries of six in felony trials with the

exception of murder cases; all juries are selected

using individually sequestered voir dire. A bedrock

principle of CCDLA is the preservation and

advancement of the rights of persons subject to

criminal investigations and prosecutions. CCDLA

has an interest in seeing that the right to a jury trial

is complete, robust, and fair in Connecticut.

Pursuant to this Court’s Rule 37.6, Amici state that no

counsel for any party authored this brief in whole or in part,

and no person or entity other than Amici made a monetary

contribution to the preparation or submission of the brief.

Counsel for both parties received a Notice of Intent to file this

brief more than 10 days prior to filing and consented to this

filing.

1

2

Because the criminal legal systems in Utah and

Connecticut would be affected by a decision in this

case (along with a handful of other states), we write

in support of petitioners. A favorable determination

for them would provide the defendants of our states

with twelve-person juries that properly embody the

spirit of the criminal jury.

SUMMARY OF THE ARGUMENT

In this brief we address what we believe is one of

the central flaws of Williams v. Florida: its position

that juries with as few as six members are

functionally equivalent to juries of twelve since the

“purpose of the jury trial . . . is to prevent oppression

by the Government,” which the Williams Court

thought a six-person jury could accomplish just as

well as a twelve-person jury. 2

In drawing that conclusion, the Williams Court

missed three other foundational purposes for which

juries were designed, and in doing so missed what is

lost when cases are decided by juries of six or eight

members. These three additional purposes of the

jury are to: (1) represent the community in the

administration of justice, (2) protect defendants from

the vindictiveness of the community, and (3) ensure

popular respect for the outcome of cases.

The jury simultaneously serves both majoritarian

and counter-majoritarian roles by representing the

community and also serving as a check on the

2 399 U.S. 78, 100, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (1970).

3

community’s occasional unjust vindictiveness. The

desirable balance of these competing roles falls flat

when the jury is not appropriately comprised to

serve both roles. As discussed below, juries of twelve

members balance these roles better than smaller

juries. Additionally, twelve-member juries matter

because that is the kind of jury that the public

anticipates as giving just verdicts.

When these three additional purposes are given

their fair consideration, the analysis demonstrates

that juries of twelve achieve the purpose of the Sixth

Amendment better than smaller juries do.

ARGUMENT

In Williams v. Florida, this Court determined

that the historical purpose of why juries exist is to

"prevent oppression by the Government." 3 From that

position the Court concluded that a six-person jury

can just as effectively accomplish that objective as a

twelve-person jury. 4 Missing from the Court’s

analysis, however, were other reasons for why juries

exist and why trial by jury matters. These other

purposes factor into the strategic decision of why

defense attorneys and their clients assert the right

to trial by jury. Moreover, these other purposes are

better accomplished through juries of twelve

members over smaller juries. A jury’s purpose is to:

3

Id.

4

Id.

4

1. Represent the community in the

administration of justice.

2. Serve as

community’s

vindictiveness.

a check

proclivity

on

the

for

3. Satisfy society’s, and the

defendant’s, interest that the case was

decided fairly. 5

Smaller juries do not reflect these important

purposes the way that a twelve-person jury can.

I.

The Jury Represents the Community in

the Administration of Justice; Small

Juries are Less Likely to Reflect the

Broader Community.

From its inception, the jury served as the voice of

the community. “[I]n its origins the jury is of a

representative character; the basis of its composition

in the early days . . . was clearly the intention to

5 Of note, there are additional reasons for why juries exist. For

example, juries have been recognized as a tool to education the

public on civic matters. Powers v. Ohio, 499 U.S. 400, 407, 111

S. Ct. 1364, 1368 (1991). The more people serve on juries the

more effective this is accomplished, which makes twelve-person

juries superior to smaller ones. That said, defendants do not

choose juries to help educate the populace, so this function is

not explored further in this brief.

5

make it representative of the community. . .”. 6 The

pluralist purpose of the jury was also recognized as a

central feature in early America. As John Adams

wrote in his diary:

In the Administration of Justice too, the

People have an important Share. . . [N]o

Man can be condemned of Life, or Limb,

or Property or Reputation, without the

Concurrence of the Voice of the People. 7

Not only does the jury represent the community’s

decision to hold defendants accountable; but it also

represents the community’s interest in protecting

defendants against governmental overreach. This is

a right not only for the defendant, 8 but as this Court

has also recognized that the people themselves have

a right to act as jurors as a means to “prevent [the]

arbitrary use or abuse" of judicial power. 9 The

6 Theodore Plucknett,

A Concise History of the Common Law,

127 (1956), https://tinyurl.com/2924e8hw.

Founders Online, NATIONAL ARCHIVES, “[February 1771]” in

The Adams Papers, Diary and Autobiography of John Adams,”

vol. 2, 1771-1781, ed. L. H. Butterfield (1961).

https://founders.archives.gov/?q=important%20share&s=15113

11112&r=8; see also Laura I. Appleman, The Lost Meaning of

the Jury Trial Right, 84 IND. L.J. 397 (2009) (describing that

the right of a jury trial was originally primarily a right of the

people to be involved in the administration of justice).

7

8

Williams, 399 U.S. at 100.

9 Powers v. Ohio, 499 U.S. 400, 406, 111 S. Ct. 1364, 1364, 113

L. Ed. 2d 411 (1991) (quoting Chief Justice Taft in Balzac v.

Porto Rico, 258 U. S. 298 (1922)).

6

requirement of a unanimous jury gives the right to

each juror, as an individual, to stop governmental

overreach. 10

Although the Williams Court recognized the

jury’s importance in protecting against oppression,

the Court brushed over the reasons why the jury

protects individuals from the government, and in

doing so missed the reason why a twelve-person jury

matters to accomplish this important function.

Jurors do not adjudicate guilt or innocence simply

as a small body of non-governmental officers or nonjudges; they reach their verdicts as a diverse body of

individuals representing the community. As one

early commentator wrote:

If justice be done to the wheel by

placing in it the most intelligent

citizens of all occupations, every

traverse jury of twelve men should

possess an aggregate of practical

information, that should be greater

Founders Online, NATIONAL ARCHIVES, “Adams’ Diary Notes

on the Right of Juries: 1771. Feby. 12.,” in The Adams Papers,

Legal Papers of John Adams, vol. 1, Cases 1–30, ed. L. Kinvin

Wroth and Hiller B. Zobel (1965), available at

https://founders.archives.gov/documents/Adams/05-01-02-00050005-0004 (“It is not only his right but his Duty in that Case to

find the Verdict according to his own best Understanding,

Judgment and Conscience, tho in Direct opposition to the

Direction of the Court.”).

10

7

than the judge on the bench, however

good his legal information. . . . 11

Juries are valued for defendants because of their

ability to apply “common-sense judgment.” 12 That

judgment stems from the jury’s connection to

“community values.” 13 The “community’s sense of

justice” that flows from a jury brings “the quality of

mercy” to the courts. 14 As the Kentucky Supreme

Court noted over a century ago:

The jury are drawn from the various

walks of life, and their combined

knowledge and experience afford the

very best opportunity for safe and wise

conclusions. Judge Dillon is quoted as

saying, "twelve good and lawful men

are better judges of disputed facts than

twelve learned judges." 15

Other commentators have made similar

observations, praising “the judgment of 12 impartial

Discourse on the Trial by Jury, 9 (1863), available

at https://tinyurl.com/2pavjym8.

11 Eli Price,

12

Duncan v. Louisiana, 391 US 145, 156, 88 S. Ct. 1444, 20 L.

Ed. 2d 491 (1968).

Parkland Hosiery Co. v. Shore, 439 U.S. 322, 355, 99 S. Ct.

645, 58 L. Ed. 2d 552 (1979) (Rehnquist, J. Dissent).

13

14 William O. Douglas,

The Right of the People, 183-84 (1958).

Steelvest, Inc. v. Scansteel Service Center, Inc., 908 S.W.2d

104 (Ky. 1995) (quoting Hudson v. Adams' Adm'r, Ky., 49 S.W.

192 (1899)).

15

8

(people), of the average of the community, applying

their separate experiences of life to the solution of

such doubts as may arise” as the model of justice, 16

and recognizing that the value of a jury is in its

“composite intelligence, dedication, comprehension,

evidence recall, and [] emotional balance . . .”. 17

Not only do smaller juries decrease the power of

the citizenry’s right to serve as a check against

government overreach, but they also diminish the

ability of each individual juror to draw from the

collective background of her peers in making just

verdicts. A jury of six is less likely to reflect the

broader community accurately than a jury of twelve.

It has half the life experience. It has half the

collective wisdom.

To that point, it should be noted that even those

few states, including Utah and Connecticut, with

fewer than twelve-person felony juries tacitly

acknowledge that something is lost when smaller

juries render verdicts. Every one of those states

require a twelve-person jury in capital cases. 18 Some

16

Travelers' Ins. Co. v. Selden, 78 F. 285 (4th Cir. 1897).

17 Joseph T. Karcher,

The Case for the Jury System, CHICAGO-

KENT L. REV., 157, 168 (1968).

See Ariz. Const. art. 2, sec. 23; Conn. Const. amend. art. IV;

Fla. Rule Crim. Proc. § 3.270 (2019); Ind. Code § 35-37-11(b)(1); Utah Const. art. I, sec. 10. Louisiana requires twelve

person juries for all cases except for those which “may” result in

imprisonment at hard labor. C.f. Louis. Const. of 1974 art. 1, §

17 (requiring twelve person juries for capital offenses) and LA

Code Crim. Pro. 782 (allowing juries of six for cases which

“may” result in imprisonment at hard labor); see also LA R.S.

18

9

of them even require a twelve-person jury for at least

some non-capital felonies. 19 While the gravity of a

capital case triggers several rights that do not

necessarily exist in other cases, the fact that each

state requires a twelve-person jury in capital cases

shows a concession that there is something actually

meaningfully different about a twelve-person jury.

II.

The Jury Serves a Counter-Majoritarian

Function; a Smaller Jury Cannot Serve

that Function as Well as a Jury of

Twelve.

Not only do juries serve as the voice of the

community, but commentators have also recognized

the important role jurors serve as a countermajoritarian

check

on

the

community’s

vindictiveness.

[T]he trial by jury has been steadily

regarded, from the earliest judicial

history in England, as the great

safeguard of the lives, liberty, and

property of the subject against the

abuses of arbitrary power, as well as

14:2 §2(A)(4) (defining felony as a crime that “may be sentenced

to death or imprisonment at hard labor).

See Ariz. Const. art. 2, sec. 23 (requiring juries for felonies in

which the term of imprisonment is thirty or more years).

Massachusetts has abolished capital offenses, see Mass. Const.

art. XII. However, it requires twelve person juries for felony

cases except for certain felonies tried before the district court.

C.f. Mass. G. L. C. 218, § 26A and Mass. R. Crim. P. 19(c).

19

10

against undue excitements of popular

feeling. 20

The jury’s role as a counter-majoritarian body is

critical to fair outcomes.

Jurors often serve as the gate through which the

community expresses disapproval of a defendant’s

acts. But as participants of the court, it also

moderates the community’s anger. As one Court

pointed out, “Jury trials have historically served to

vent community pressures and passions.” 21 When

the jury does this responsibly, it serves as “the lid of

a tea kettle releas[ing] steam,” allowing “peaceful

expression of community outrage at arbitrary

government or vicious criminal acts.” 22

However, the jury has not always served this

moderating

influence,

requiring

courts

to

occasionally intervene to protect this function.

Among the most well-known illustrations of juries

failing their counter-majoritarian role comes from

the Jim Crow South, where juries packed with white

community members would unfairly convict black

defendants on the barest of evidence but would

20

William E. Chandler, State Reporter, Reports of Cases

Argued and Determined in the Supreme Judicial Court of New

Hampshire,

vol.

41,

550

(1861)

available

at

https://tinyurl.com/6nru7nzp. (emphasis added).

21

United States v. Lewis, 638 F. Supp. 573, 580 (W. D. Mich.

1986).

22

Id.

11

acquit white defendants who harmed black

individuals. 23 Courts, including this one, had to step

in.

After Black citizens in the late 19th century began

to sit on juries, West Virginia quickly moved to

prohibit them from jury service. 24 This Court

intervened in Strauder v. West Virginia, declaring

the law unconstitutional. 25 In its ruling, the Court

noted the problem of prosecutors “[p]acking juries”

with biased community members 26 As Justice

Thomas has since remarked on reflection of

Strauder, “We reasonably surmised, without direct

evidence in any particular case, that all-white juries

might judge black defendants unfairly.” 27 Congress

subsequently

effected

Strauder

into

code,

“[i]ntegrating the jury box” in order to counter

“impunity for white purveyors of racial violence.” 28

The law had its desired effect. Much to the outrage

of some communities, integrated juries acquitted

23 Arthur L. Rizer III,

The Race Effect on Wrongful Convictions,

WILLIAM MITCHELL L. REV. 29, 845, 850-52 (2003).

24 Thomas Ward Frampton,

REV. 1593, 1600-01 (2018).

25

The Jim Crow Jury, 71 VAND. L.

Strauder v. West Virginia, 100 U.S. 303, 25 L. Ed. 664

(1879).

26

Id. at 309.

27

Georgia v. McCollum, 505 U.S. 42, 61, 112 S. Ct. 2348, 2360

(1992).

28

Id. at 1602.

12

black defendants more often, although they still

frequently convicted black defendants as well. 29

Myths of black jurors being unwilling to judge fairly

remained pervasive, requiring this Court to

intervene again, 30 and again, 31 and again. 32 All of

this has been to protect defendants from the

passions of the community that the jury is designed

to attenuate.

But racial animosity is not the only basis on

which courts intervene to safeguard the deliberative

jury from the community’s sense of outrage. In cases

where the “court of popular opinion” has decided

guilty before trial, prospective jurors are screened for

biases they may have acquired by having heard

about and discussed the case with others in the

community. 33 Relatedly, when a defendant suspects

that he cannot get a fair trial in the court’s

jurisdiction, his motion to change the trial venue is

typically brought after public polling of the

community’s sentiment shows that the defendant

will not get an impartial jury. 34 And while the public

29

Id. at 1603.

30

Norris v. Alabama, 294 U.S. 587, 55 S. Ct. 579 (1935).

31

Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986).

32

Ramos v. Luisiana, 140 S. Ct. 1390 (2020).

33

Mu'Min v. Virginia, 500 U.S. 415, 425-26, 111 S. Ct. 1899,

1905 (1991).

34

See generally, Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639

(1961).

13

would have no trouble convicting a defendant after

hearing about the defendant’s criminal record, juries

are frequently kept from hearing about the

defendant’s record so that they make measured

decisions that the public would not. To that end,

popular sentiment may quickly decide a dispute on

little evidence, whereas the jury inhabits a

microcosm of evidentiary rules, legal instructions,

and procedural presentations of the case. Put simply,

the jury not only represents the community, but it

also serves a counter-majoritarian or moderating

function against public vindictiveness.

Jury size directly affects this countermajoritarian function. If a jury is too large it may too

greatly reflect the community’s outrage, hampering

its moderating purpose. But when juries are too

small, they run other risks.

Although defendants “are not entitled to a jury of

any particular composition,” juries are meant to be a

“fair cross-section of the community.” 35 Smaller

juries are more likely to have “extreme

oversampling” issues. As a well-known statistical

phenomenon, when a random selection of a

population is too small to reflect the population’s

characteristics, there is an increased risk that the

35

Taylor v. Louisiana, 419 US 522, 538 (1975).

14

small sample will contain a disproportionate number

of atypical members of the overall population. 36

Defendants are always better served by a diverse

body of jurors. Juries of fewer than twelve members

lack the diversity of a twelve-person jury. This

makes them poorer representatives of the larger

community, while also potentially less likely to

moderate the vindictiveness of popular sentiments

against criminal defendants.

III. The Jury System Is Designed to Satisfy

Society’s Interest, as Well as the

Defendant’s Interest, that Justice Is

Done; a Small Jury Does Not Symbolize

the Justice-Serving Role of a Jury.

The jury serves a symbolic purpose. It provides

the community with assurance that a just outcome

was reached. While a defendant has a limited right

to challenge a jury that erroneously convicts, 37 the

integrity of a jury’s verdict is otherwise unassailable:

a judge may not direct a criminal jury to convict nor

may a jury’s decision to acquit be appealed. 38 The

Chittaranjan Andrade, Sample Size and its Importance in

Research, INDIAN J. PSYCH. MED. 42, 102-103 (2020) available

at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6970301/.

36

37

Jackson v. Virginia, 443 U.S. 307, 317, 99 S. Ct. 2781, 2788

(1979).

A Brief History of

the Criminal Jury in the United States, 61 U. CHI. L. REV. 867,

38 Albert W. Alschuler & Andrew G. Deiss,

912-13 (1994).

15

finality of a jury’s verdict is an important feature of

the legal system. 39

The public’s ability to identify with juries aids its

perception that juries get things right. Reflecting on

the English jury system in 1883, one historian noted:

The public at large feel more sympathy

with jury-men than they do with

judges, and accept their verdicts with

much less hesitation and distrust than

they would feel towards judgments

however ably written or expressed. 40

Perception matters in the legal system. “It is not

merely of some importance but is of fundamental

importance that justice should not only be done, but

should manifestly and undoubtedly be seen to be

done.” 41 When juries do not conform to the public’s

perception of a just jury, it shakes confidence in the

system.

39

United States v. Scott, 437 U.S. 82, 92, 98 S. Ct. 2187, 2194

(1978) (explaining the reasoning for why that finality may be

challenged when the result is a conviction).

40 Sir James FitzJames Stephen,

of England, vol 1, 573 (1883).

A History of the Criminal Law

The King v. Sussex Justices, Ex Parte McCarthy, [1924] 1

KB 256, [1923] EWHC KB 1, [1924] KB 256, available at

https://tinyurl.com/bdd5bumr.

41

16

This concerns of unjust juries has been aptly

captured in media. The manipulative jury selection

scene in the blockbuster film Runaway Jury reveals

that the gun manufacturer has spent enormous

sums of money to select its ideal jury, helping the

audience to see that the manufacturer is the story’s

villain. 42 And in Harper Lee’s To Kill a Mockingbird,

the reader knows that the jury will inevitably

convict the innocent Tom Robinson because the

author tells the reader that the jury “seemed to be

all farmers,” pointing out that “townsfolk rarely sat

on juries, they were either struck or excused.” 43 As

Justice Frankfurter pointed out, a jury's “broad

representative character” of the community is meant

to be an “assurance of diffused impartiality.” 44

Juries depicted in popular culture show twelve

individuals. 45 When described in media, they are

42 RUNAWAY JURY (Regency Enterprises 2003).

43 Judge Royal Furgeson, The Jury in To Kill A Mockingbird:

What Went Wrong?, TEX. BAR. J. 488 (2010) available at

https://tinyurl.com/2p8ztxfm.

44

Thiel v. S. Pac. Co., 328 U.S. 217, 227, 66 S. Ct. 984, 989

(1946) (Frankfurter, J. dissenting).

45 12 ANGRY MEN (Orion-Nova Productions 1957);

MARVEL’S DAREDEVIL, se. 2, ep. 8 (Marvel Television 2016)

(showing a twelve-person jury)

https://www.youtube.com/watch?v=vSg0mNAgx4s;

THE UNTOUCHABLES (Paramount Pictures 1987) (same)

https://www.youtube.com/watch?v=peie8WvkKP0.

17

shown as twelve people. 46 As criminal defense

attorneys, we see in close detail just how important

the jury’s composition is to our clients. When our

clients are fairly convicted by a jury, it is important

for the client to be able to recognize the legitimacy of

the jury’s verdict. We have repeatedly seen that

when defendants feel that they were fairly convicted

that they fair much better at complying with their

sentence than defendants who witness injustices in

their trials. The justice system has worse results

when it does not appear to be just.

As attorneys who handle jury trials before juries

of eight members, we often find ourselves explaining

to clients why they do not get a jury of twelve like

they expect. Our clients are sometimes surprised to

see that Utah’s and Connecticut’s juries fall out of

step with the well-known expectation of twelveperson juries. They are occasionally troubled when

they do not see twelve people sitting in the jury box

on their case.

For both the public and defendants, the jury

system carries symbolic power that ensures right

outcomes are reached. For that reason, it is not only

important for the jury to be just, but it also must be

seen to be just. Integral to that purpose is the

public’s, and the defendant’s, expectation that the

jury is constituted of twelve members.

See e.g., Joel Moore, Lydian Coombs, and Dorothy Sedovic,

Jury Acquits Man Charged with Planning Rapper Young

Dolph’s Murder, KCTV 5 (Aug 22, 2025) (describing the twelveperson jury composition) available at

46

https://www.kctv5.com/2025/08/22/jury-acquits-man-chargedwith-planning-rapper-young-dolphs-murder/.

18

CONCLUSION

The Williams Court was too dismissive of the

importance of a twelve-person jury. It considered one

reason for why juries matter but missed out on a

number of other crucial reasons why criminal

defendants pick juries over judges. A jury that is too

small does not adequately reflect the community. A

jury that is too large would not serve the countermajoritarian purpose of the jury since it would

reflect the community too greatly. A jury of twelve

has withstood the test of time in managing this

tension. Moreover, its broad recognition in American

culture has the symbolic value of representing

justice. Accordingly, we urge this Court to grant the

petition for a writ of certiorari and rule for

Petitioners. A favorable determination for them

would provide the defendants of our states with

twelve-person juries that properly embody the spirit

of the criminal jury.

Respectfully submitted,

Douglas J. Thompson

Counsel of Record

MORRISE THOMPSON FORESTA

825 North 900 West,

Orem, UT 84057

(801) 671-8391

doug@utahcrimlaw.com

19

David Ferguson

Executive Director

UTAH ASSOCIATION OF

CRIMINAL DEFENSE

LAWYERS

10 W. 100 S., Ste. 700

Salt Lake City, UT 84101

Ted Koch

President

CONNECTICUT

CRIMINAL DEFENSE

LAWYERS ASSOCIATION

P.O. Box 1766

Waterbury, CT 06721