Petition for Writ of Certiorari — Max Fontes, Petitioner v. Arizona

Supreme Court briefJul 31, 2025

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No. ____________

IN THE SUPREME COURT OF THE UNITED STATES

MAX FONTES,

Petitioner,

vs.

STATE OF ARIZONA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE ARIZONA COURT OF APPEALS

PETITION FOR WRIT OF CERTIORARI

DAVID J. EUCHNER

Counsel of Record

Pima County Public Defender’s Office

33 N. Stone, 21st Floor

Tucson, Arizona 85701

Telephone: (520) 724-6800

David.Euchner@pima.gov

Attorney for Petitioner

Max Fontes

QUESTION PRESENTED

Whether the Sixth and Fourteenth Amendments guarantee the right to

a trial by a twelve-person jury when the defendant is charged with a

felony.

TABLE OF CONTENTS

PAGES

QUESTION PRESENTED

........................................................ i

TABLE OF CASES AND AUTHORITIES............................................... iv

PETITION FOR WRIT OF CERTIORARI ............................................... 1

INTRODUCTION

........................................................ 1

OPINIONS BELOW

........................................................ 4

STATEMENT OF JURISDICTION ........................................................ 5

CONSTITUTIONAL AND STATUTORY PROVISIONS ......................... 5

STATEMENT OF THE CASE

........................................................ 6

REASONS FOR GRANTING THE WRIT

The Arizona Court of Appeals’ Decision Conflicts With This

Court’s Case Law And Relies On Precedent Whose

Reasoning Has Been Conclusively Rejected .................................... 9

The Arizona Court of Appeals’ Decision Cannot Be

Squared With Ramos

........................................................ 9

Ramos Established That The Scope Of The Sixth

Amendment Jury Trial Right Is Determined By

Analyzing The “Original Public Meaning” Of The

Right

........................................................ 9

The Original Public Meaning Of “Trial By An

Impartial Jury” Included A Right To A TwelvePerson Jury

...................................................... 11

II.

Williams’ Holding That A Six-Person Jury Is

Constitutionally Permissible Either Was Effectively

Overruled By Ramos Or Is Non-Binding Under The

Privileges or Immunities Clause .......................................... 18

III.

To The Extent Williams Is Binding On The TwelvePerson Jury Issue, This Court Should Formally

Overrule It

...................................................... 23

Williams Is Egregiously Wrong ................................... 24

Williams Has Caused Significant Negative

Jurisprudential And Real-World Consequences ......... 30

Any Reliance On Williams Is Limited And

Outweighed By The Importance Of The Sixth

Amendment Right ...................................................... 32

CONCLUSION

...................................................... 34

iii

TABLE OF CASES AND AUTHORITIES

CASES

PAGES

Agostini v. Felton, 521 U.S. 203 (1997) ................................................... 23

Alleyne v. United States, 570 U.S. 99 (2013) .......................................... 23

Apodaca v. Oregon, 406 U.S. 404 (1972) ......................................... passim

Baldwin v. New York, 399 U.S. 117 (1970)....................................... 20, 25

Ballew v. Georgia, 435 U.S. 223 (1978)............ 2, 20, 25, 27, 28, 29, 30, 34

Burch v. Louisiana, 441 U.S. 130 (1979) .......................................... 20, 25

Cancemi v. People, 18 N.Y. 128 (1858).................................................... 14

Capital Traction Co. v. Hof, 174 U.S. 1 (1899) ....................................... 17

Codispoti v. Pennsylvania, 418 U.S. 506 (1974) ..................................... 32

Cunningham v. Florida, 144 S. Ct. 1287 (2024) (Mem.) .................... 3, 27

Duncan v. Louisiana, 391 U.S. 145 (1968) .................................. 17-18, 33

Edwards v. Vannoy, 593 U.S. 255 (2021) ............................... 9, 21, 22, 33

Emerick v. Harris, 1 Binn. 416 (Pa. 1808) .............................................. 14

Espinoza v. Montana Dep’t of Revenue, 591 U.S. 464 (2020) ................. 22

Foote v. Lawrence, 1 Stew. 483 (Ala. 1828)............................................. 14

Franchise Tax Bd. of Cal. v. Hyatt, 587 U.S. 230 (2019)........................ 24

Herrera v. Wyoming, 587 U.S. 329 (2019)............................................... 19

Jose v. Arizona, 145 S. Ct. 1908 (April 7, 2025) ....................................... 3

Khorrami v. Arizona, 598 U.S. --, 143 S. Ct. 22 (2022) (Mem.) ................ 3

Malloy v. Hogan, 378 U.S. 1 (1964) ........................................................ 31

Maxwell v. Dow, 176 U.S. 581 (1900) ................................... 10, 13, 17, 25

Opinion of Justices, 41 N.H. 550 (1860) ................................................. 15

Patton v. United States, 281 U.S. 276 (1930).................................... 10, 17

Ramos v. Louisiana, 590 U.S. 83 (2020) ......................................... passim

Rassmussen v. United States, 197 U.S. 516 (1905) ................................ 17

Rouse v. State, 4 Ga. 136 (1848) .............................................................. 14

South Carolina v. Baker, 485 U.S. 505 (1988) ........................................ 19

Taylor v. Louisiana, 419 U.S. 522 (1975) ............................................... 31

Thompson v. Utah, 170 U.S. 343 (1898) ..................... 2, 10, 12, 16, 17, 18

United States v. Gaudin, 515 U.S. 506 (1995) ........................................ 23

Western & Southern Life Ins. Co. v. State Bd. of Equalization of

Cal., 451 U.S. 648 (1981)................................................................ 18

Vaughn v. Scade, 30 Mo. 600 (1860) ....................................................... 14

Whitehurst v. Davis, 3 N.C. 113 (1800) ................................................... 12

Williams v. Florida, 399 U.S. 78 (1970).......................................... passim

Work v. State, 2 Ohio St. 296 (1853) ....................................................... 14

Zylstra v. Corporation of City of Charleston, 1 S.C.L. 382 (1794) .......... 13

STATUTES

28 U.S.C. § 1257(a) .................................................................................... 4

Ariz. Rev. Stat. § 21-102............................................................................ 2

Conn. Gen. Stat. § 54-82 ........................................................................... 2

Fla. R. Crim. Proc. § 3.270 ........................................................................ 2

Ind. Code § 35-37-1-1(b)(2) ........................................................................ 2

Mass. Gen. Laws, ch. 218, § 26A ............................................................... 2

Utah Code § 78B-1-104 ............................................................................. 2

CONSTITUTIONAL PROVISIONS

Ariz. Const. art. 2, § 23 ......................................................................... 5, 7

U.S. Const. amend. VI ..................................................................... passim

U.S. Const. amend. XIV ...................................................... 5, 8, 11, 21, 22

OTHER AUTHORITIES

ABA, Principles for Juries and Jury Trials (Rev. 2016) ........... 2-3, 12, 28

1 Bishop, Commentaries on the Law of Criminal Procedure

(4th ed. 1873) .................................................................................. 16

4 W. Blackstone, Commentaries on the Laws of England (1769) ..... 13, 18

Diamond et al., Achieving Diversity on the Jury: Jury Size and the

Peremptory Challenge, 6 J. of Empirical Legal Stud. 425

(Sept. 2009) ............................................................................... 28, 29

Higginbotham et al., Better by the Dozen: Bringing Back the

Twelve-Person Civil Jury, 104 Judicature 47 (Summer

2000) ................................................................................... 28, 29, 30

Miller, Six Of One Is Not A Dozen Of The Other, 146 U. Pa. L. Rev.

621 (1998) ....................................................................................... 13

Scott, Fundamentals of Procedure in Actions at Law (1922) ................. 12

Alisa Smith & Michael J. Saks, The Case for Overturning Williams

v. Florida and the Six-Person Jury, 60 Fla. L. Rev. 441

(April 2008) ..................................................................................... 29

1 Story, Commentaries on the Constitution of the United States

(4th ed. 1873) .................................................................................. 15

Thayer, A Preliminary Treatise on Evidence at the Common Law

(1898) .............................................................................................. 13

Thayer, The Jury and Its Development, 5 Harv. L. Rev. 295 (1892)...... 12

Tiffany, A Treatise on Government and Constitutional Law (1867) ...... 16

2 Wilson, The Works of the Honourable James Wilson 350 (1804) ........ 15

PETITION FOR WRIT OF CERTIORARI

Max Fontes respectfully petitions for a writ of certiorari to review

the judgment in this case of the Arizona Court of Appeals.

INTRODUCTION

How many members must a jury have when a criminal defendant

is charged with a felony? For hundreds of years—from the signing of

Magna Carta until 1970—the answer was the same: “[N]o 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.’” Ramos v. Louisiana, 590 U.S. 83, 90 (2020). “A verdict,

taken from eleven, was no verdict at all.” Id. (quotation marks omitted).

By any historical metric, the traditional twelve-person jury

requirement falls within “what the term ‘trial by an impartial jury’ meant

at the time of the Sixth Amendment’s adoption.” Id. It was recognized by

“the common law, state practices in the founding era, [and] opinions and

treatises written soon afterward.” Id. This Court has stated that because

the twelve-person requirement has been accepted since 1215, “[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].” Thompson v. Utah, 170 U.S. 343, 349-50 (1898).

This Court, however, took a wrong turn when it held, in Williams

v. Florida, 399 U.S. 78, 86 (1970), that juries as small as six were

constitutionally permissible. Williams accorded no weight to the

historical record, acknowledging that the Framers “may well” have had

“the usual expectation” in drafting the Sixth Amendment “that the jury

would consist of 12” members. Id. at 98-99. Instead, Williams rested on

its view that the essential “function” of a jury is decision-making made

with “community participation and [with] shared responsibility”—a

function it thought empirical research suggested could be as easily

performed with six jurors as with twelve. Id. at 100-02 & n.48. As a

result, a half-dozen States—including Arizona—currently permit

criminal juries as small as eight or six members,1 even though this Court

subsequently recognized that the empirical studies that formed the basis

for Williams’ holding were badly flawed. Ballew v. Georgia, 435 U.S. 223,

232-37 (1978); see also ABA, Principles for Juries and Jury Trials,

1 The six States are: Arizona, see Ariz. Rev. Stat. § 21-102; Connecticut,

see Conn. Gen. Stat. § 54-82; Florida, see Fla. R. Crim. Proc. § 3.270;

Indiana, see Ind. Code § 35-37-1-1(b)(2); Massachusetts, see Mass. Gen.

Laws, ch. 218, § 26A; and Utah, see Utah Code § 78B-1-104.

Principle 3 cmt., at 18 (Rev. 2016) (“The shortcomings of [the] studies

[relied upon in Williams] have been demonstrated by subsequent

scholarly analysis”).

This Court has declined at least three prior opportunities to address

this issue. See Khorrami v. Arizona, 598 U.S. --, 143 S. Ct. 22 (2022)

(Mem.) (Gorsuch, J., dissenting from denial of certiorari); Cunningham

v. Florida, 144 S. Ct. 1287 (2024) (Mem.) (Gorsuch, J., dissenting from

denial of certiorari); Jose v. Arizona, 145 S. Ct. 1908 (cert. denied, April

7, 2025). But the time has come for this Court to discard the ahistorical

and unfounded Williams rule, just as Ramos overturned a similar

decision from the same era that permitted conviction of a serious crime

by a nonunanimous jury. Indeed, Ramos’s reasoning has already

effectively overruled Williams, as the Ramos decision rejected precisely

“the same fundamental mode of analysis” as that adopted in Williams.

Ramos, 590 U.S. at 157-58 (Alito, J., dissenting).

This Court should now overrule Williams. Its reasoning was

egregiously wrong, as it disregarded history in favor of now-discredited

empirical research. Williams’ holding has had real-world negative

consequences: It increases the odds of an erroneous conviction and

decreases the representative nature of the juries. Any “reliance interest”

those six States might claim in having to “retry a slice of their prior

criminal cases … cannot outweigh the interest we all share in the

preservation of our constitutionally promised liberties.” Ramos, 590 U.S.

at 110-11 (plurality op.); id. at 129 (Kavanaugh, J., concurring in part)

(invalidating “limited class” of convictions that violate Sixth Amendment

is a “‘small price to pay for the uprooting of this weed’”).

This is especially true in Max Fontes’ case. Fontes was facing

thirty-six years in prison for a vehicular homicide, and even under

Arizona law, he was entitled to a twelve-person jury. When COVID-19

spread through the jury, however, the prosecutor and trial judge decided

that they could overrule the twelve-person-jury guarantee, and the

Arizona Court of Appeals upheld that decision. These constitutional

violations will continue until this Court takes action.

OPINIONS BELOW

The Arizona Court of Appeals’ decision dated August 13, 2024, is

unreported but is available at 2024 WL 3791966. Exhibit 1. The Arizona

Supreme Court’s order denying Mr. Fontes’ petition for review is

unreported. Exhibit 2.

STATEMENT OF JURISDICTION

The Arizona Court of Appeals, Division Two, entered its judgment

on August 13, 2024. Exhibit 1. The Arizona Supreme Court’s order

denying discretionary review was entered on May 7, 2025. Exhibit 2. This

Court has jurisdiction pursuant to 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS

The Sixth Amendment to the United States Constitution provides

in relevant part: “In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of the State and

district wherein the crime shall have been committed[.]”

Section One of the Fourteenth Amendment to the United States

Constitution provides as follows:

All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the United

States and of the state wherein they reside. 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 2, section 23 of the Arizona Constitution provides as follows:

The right of trial by jury shall remain inviolate. Juries in

criminal cases in which a sentence of death or imprisonment

for thirty years or more is authorized by law shall consist of

twelve persons. In all criminal cases the unanimous consent

of the jurors shall be necessary to render a verdict. In all other

cases, the number of jurors, not less than six, and the number

required to render a verdict, shall be specified by law.

Arizona Revised Statute § 21-102(A)-(B) provides as follows:

A. A jury for trial of a criminal case in which a sentence of

death or imprisonment for thirty years or more is authorized

by law shall consist of twelve persons, and the concurrence of

all shall be necessary to render a verdict.

B. A jury for trial in any court of record of any other criminal

case shall consist of eight persons, and the concurrence of all

shall be necessary to render a verdict.

STATEMENT OF THE CASE

Mr. Fontes was involved in a two-car collision where the cause was

hotly disputed at trial. The State of Arizona charged both drivers with

crimes (different prosecuting agencies handled the cases). The other

driver, Angel Shelby, did not buckle either himself or his seven-monthold son, and the collision caused both to be ejected through a window. The

baby died and Shelby was seriously injured. Fontes was charged with

four crimes: manslaughter, two counts of aggravated assault, and

criminal damage. After protracted pre-trial litigation, see State v. Aragon

(Fontes), 505 P.3d 657 (Ariz. 2022), the seven-day trial proceeded with a

twelve-person jury plus three alternates empaneled.

On the fourth and fifth trial days, the trial court excused three

jurors who contracted COVID-19. On the morning of the sixth day, when

a fourth juror contracted COVID-19, the court told him not to come in but

that he was not yet excused. The State provided a case to the court that

said if the State stipulates that the defendant’s sentencing exposure was

to a cumulative sentence of less than 30 years, the defendant was not

entitled to a twelve-person jury under article 2, section 23 of the Arizona

Constitution. Defense counsel objected to the case being decided by fewer

than twelve jurors. As alternatives, defense counsel suggested either

pausing the trial until everyone could be available or declaring a mistrial.

The court cited an unpublished decision affirming a stipulation between

the State and the trial court to impose a sentence of less than thirty

years. The State agreed with the court’s suggestion that the defendant’s

agreement is not required so long as the State and court agree. The State

refused to dismiss any sentencing allegations that would statutorily

reduce exposure below 30 years. Exhibit 3, pp. 4-18.

Defense counsel vociferously objected to an 8-person jury because

the sentencing exposure is determined by the legislature. When the trial

court overruled that objection, defense counsel asked for the court to

allow the eleven remaining jurors to deliberate. The court also denied

that request. Exhibit 3, pp. 60-62.

On appeal, Fontes argued both that the Sixth and Fourteenth

Amendments require a felony case to be tried to a jury of twelve persons,

and that the reduction of the jury to eight persons also violated the

Arizona Constitution. As to the first issue, he acknowledged this Court’s

contrary precedent in Williams but argued that this Court’s opinion in

Ramos undercut Williams’ reasoning. The Arizona Court of Appeals

rejected his constitutional arguments and declined to remark on the

continued vitality of Williams. Exhibit 1, ¶ 16. Fontes filed a petition for

review in the Arizona Supreme Court; that court denied his petition, with

two justices voting to grant review as to the state constitutional issue.

Exhibit 2.

REASONS FOR GRANTING THE WRIT

THE COURT OF APPEALS’ DECISION CONFLICTS WITH THIS

COURT’S CASE LAW AND RELIES ON PRECEDENT WHOSE

REASONING HAS BEEN CONCLUSIVELY REJECTED.

The Court of Appeals’ Decision Cannot Be Squared With

Ramos.

A. Ramos Established That The Scope Of The Sixth

Amendment Jury Trial Right Is Determined By Analyzing

The “Original Public Meaning” Of The Right

This Court held in Ramos that the Sixth Amendment requires a

unanimous verdict to convict a defendant of a serious crime. 590 U.S. at

93. Because the text of the Sixth Amendment “says nothing … about

what ‘a trial by an impartial jury’ entails,” the Court’s analysis focused

on “what the term … meant at the time of the Sixth Amendment’s

adoption.” Id. at 89-90; see also Edwards v. Vannoy, 593 U.S. 255, 266

(2021) (acknowledging that “Ramos … adhered to the original meaning

of the Sixth Amendment’s right to a jury trial”).

To determine the “original public meaning” of the jury right, this

Court consulted “the common law, state practices in the founding era,

[and] opinions and treatises written soon afterward.” Ramos, 590 U.S. at

90-91. All those authorities pointed to the same “unmistakable”

“answer”—the phrase “trial by … jury” referred to a unanimous jury at

the time the Sixth Amendment was enacted. Id.

Ramos also placed importance on the fact that this Court had

“repeatedly and over many years[] recognized that the Sixth Amendment

requires unanimity.” Id. at 91-92 & nn.19-20 (citing Thompson v. Utah,

170 U.S. 343, 351 (1898); Maxwell v. Dow, 176 U.S. 581, 586 (1900);

Patton v. United States, 281 U.S. 276, 288 (1930)). The only detour from

the Court’s adherence to this “simple” and “straightforward principle[]”

arose in the 1970s, when Apodaca v. Oregon, 406 U.S. 404 (1972), was

issued and the Court’s jurisprudence “took a strange turn,” Ramos, 590

U.S. at 93.

The Apodaca plurality erred, Ramos explained, by “subject[ing] the

Constitution’s jury trial right to an incomplete functionalist analysis of

its own creation” rather than “grappling with the historical meaning of

the Sixth Amendment’s jury trial right.” 590 U.S. at 106. Specifically, the

Apodaca plurality “declared that the real question before them was

whether unanimity serves an important ‘function’ in ‘contemporary

society’” and quickly concluded that “unanimity’s costs outweigh its

benefits in the modern era.” Id. at 94. Not only was this “breezy cost-

benefit analysis” “skimpy” in its reasoning, but it also “overlook[ed] 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.” Id. at 99-100. In

other words, it is “not [the] role [of judges] to reassess whether” a right

“enshrine[d] … in the Constitution” is “‘important enough’ to retain.” Id.

at 100.

A majority accordingly held that Apodaca’s logic was indefensible

and not entitled to the protection of stare decisis. See Ramos, 590 U.S. at

106-07; id. at 115 (Sotomayor, J., concurring) (“Today, [Apodaca is]

rightly[] relegated to the dustbin of history.”); id. at 132 (Kavanaugh, J.,

concurring in part) (“Apodaca is egregiously wrong… I therefore agree

with this Court’s decision to overrule Apodaca.”); see also id. at 139

(Thomas, J., concurring) (Apodaca “does not bind us” because it did not

address the scope of the Sixth Amendment when viewed in light of the

Fourteenth Amendment’s Privileges or Immunities Clause).

B. The Original Public Meaning Of “Trial By An Impartial

Jury” Included A Right To A Twelve-Person Jury.

Just as in Ramos, “the common law, state practices in the founding

era, [and] opinions and treatises written soon afterward” all point to the

same “unmistakable” “answer” here: The phrase “trial by an impartial

jury” historically referred to a “‘unanimous verdict of a jury of twelve

persons.’” Ramos, 590 U.S. at 92 (quoting Thompson, 170 U.S. at 351);

see also ABA, Principles for Juries and Jury Trials Principle 3 cmt., at

18, 21 (“colonial and federal constitutional considerations [as well as]

long historical experience” support requiring a “twelve-person jury in all

non-petty criminal cases”).

The twelve-member requirement dates back nearly 900 years to the

reign of King Henry II, who “established twelve as the usual number” for

a jury. Thayer, The Jury and Its Development, 5 Harv. L. Rev. 295, 295

(1892). In the early 13th century, this rule was incorporated into Magna

Carta. When the document “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

[too] referred to a trial by twelve jurors.” Thompson, 170 U.S. at 349. And

“[b]y the middle of the fourteenth century[,] the requirement of twelve

had probably become definitely fixed” and had “c[o]me to be regarded

with something like superstitious reverence.” Scott, Fundamentals of

Procedure in Actions at Law 75-76 (1922). Indeed, in 1769, Blackstone

explained that “no person could be found guilty of a serious crime unless

‘the truth of every accusation … [was] … confirmed by the unanimous

suffrage of twelve of his equals and neighbors.’” Ramos, 590 U.S. at 90

(quoting 4 W. Blackstone, Commentaries on the Laws of England 343

(1769)). In short, a “‘verdict, taken from eleven, was no verdict’ at all.” Id.

(quoting Thayer, A Preliminary Treatise on Evidence at the Common Law

88-89 n.4 (1898)).

When considered in context of this history, “there can be no doubt”

that “a jury composed, as at common law, of twelve jurors was intended

by the Sixth Amendment to the Federal Constitution.” Maxwell, 176 U.S.

at 586. In particular, in the first few decades after the Sixth Amendment

was enacted, a bevy of state courts interpreted the phrase “trial by an

impartial jury” to require a twelve-person jury. See, e.g., Miller, Six Of

One Is Not A Dozen Of The Other, 146 U. Pa. L. Rev. 621, 643 & n.133

(1998) (collecting cases). In 1794, for instance, a South Carolina court

interpreted the jury right enshrined in the state constitution as requiring

the “rights of the citizens … to be determined … by 12 men…

indiscriminately drawn from every class of their fellow citizens.” Zylstra

v. Corporation of City of Charleston, 1 S.C.L. 382, 389 (1794). Six years

later, a North Carolina court explained that the same phrase (which also

appears in the North Carolina constitution) referred to the “ancient

mode” of a trial, in which a jury must contain twelve members—no more

and no less. Whitehurst v. Davis, 3 N.C. 113, 113 (1800) (per curiam)

(“Any innovation amounting in the least degree to a departure from this

ancient mode … may … endanger or pervert this excellent institution

from its usual course.”). And in the following years, the Supreme Courts

of Pennsylvania, Alabama, and Georgia interpreted similar language in

their own constitutions to require twelve-person juries. See Emerick v.

Harris, 1 Binn. 416, 426 (Pa. 1808); Foote v. Lawrence, 1 Stew. 483, 483

(Ala. 1828); Rouse v. State, 4 Ga. 136, 147 (1848).

The same understanding among state high courts throughout the

rest of the nineteenth century. For example:

• The Ohio Supreme Court wrote that its state constitutional

provision protecting “[t]he right of trial by jury” required that

“[t]he number [of jurors] must be twelve,” explaining that

“diminishing the number impairs [the jury trial] right, lessens

the security of the accused, and increases the danger of

conviction.” Work v. State, 2 Ohio St. 296, 304-05 (1853).

• The New York Court of Appeals warned that “allow[ing] … any

number short of a full panel of twelve jurors” “would be a highly

dangerous innovation” that “ought not to be tolerated” “in

reference to criminal cases, upon the ancient and invaluable

institution of trial by jury, and the constitution … establishing

and securing that mode of trial.” Cancemi v. People, 18 N.Y. 128,

138 (1858).

• The Supreme Court of Missouri held that the Missouri

Constitution, which “adopted” the “term ‘trial by jury’” from “the

common law,” referred to a trial “of twelve men.” Vaughn v.

Scade, 30 Mo. 600, 603-04 (1860).

• The Supreme Court of New Hampshire ruled that its state’s

legislature could not allow for juries of fewer than twelve because

“[t]he term[]… ‘trial by jury’ [is], and for ages ha[s] been well

known in the language of the law”—and was thus “used at the

adoption of the constitution”—to refer to “a body of twelve men.”

Opinion of Justices, 41 N.H. 550, 551 (1860).

Numerous scholars in the 18th and 19th centuries came to the same

conclusion. For example, Justice James Wilson explained shortly after

the Sixth Amendment was drafted that “[t]o the conviction of a crime, the

undoubting and unanimous sentiment of the twelve jurors is of

indispensable necessity,” 2 Wilson, The Works of the Honourable James

Wilson 350 (1804). Justice Joseph Story echoed that view: “trial by jury

is generally understood to mean … a trial by a jury of twelve men,

impartially selected[.]” 1 Story, Commentaries on the Constitution of the

United States § 1779, at 541 n.2 (4th ed. 1873). Other treatises from that

era agreed, explaining that (1) “in a case in which the Constitution

guarantees a jury trial,” a statute allowing “a verdict upon any thing

short of the unanimous consent of the twelve jurors” is “void” and (2) “a

trial by jury is understood to mean—generally—a trial by a jury of twelve

men.” 1 Bishop, Commentaries on the Law of Criminal Procedure § 897,

at 546 (2d ed. 1872); Tiffany, A Treatise on Government and

Constitutional Law § 549, at 367 (1867).

This Court, too, has “repeatedly and over many years,” Ramos, 590

U.S. at 92, recognized that the Sixth Amendment requires a twelvemember jury—and in many of the same cases that Ramos relied upon to

show the consensus over the unanimous jury requirement. The Court

first addressed the twelve-person requirement in 1898, when it

overturned a conviction issued by an eight-person jury in Utah.

Thompson, 170 U.S. at 349. The Court explained 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.” Id. Thompson relied on the Amendment’s original public meaning,

determining that “the words ‘trial by jury’ were placed in the constitution

of the United States with reference to the meaning affixed to them in the

law as it was in this country and in England at the time of the adoption

of that instrument.” Id. at 350.

In the years following Thompson, this Court repeatedly noted the

twelve-person requirement. For example, just one year later, it said that

“‘[t]rial by jury,’ in the primary and usual sense of the term at the

common law and in the American constitutions, is … a trial by a jury of

12 men.” Capital Traction Co. v. Hof, 174 U.S. 1, 13 (1899). Again in 1900,

it stated that “there can be no doubt” “[t]hat a jury composed, as at

common law, of twelve jurors was intended by the Sixth Amendment.”

Maxwell, 176 U.S. at 586. Five years later, it recited Thompson’s holding

that the Sixth Amendment guarantees “the right to be tried by a jury of

twelve persons.” Rassmussen v. United States, 197 U.S. 516, 527 (1905).

As the twentieth century rolled on, this Court’s statements about

the twelve-person jury right became even more unqualified. By 1930, it

stated that it was “not open to question” “[t]hat … ‘trial by jury’” “mean[t]

a trial by jury as understood and applied at common law,” including the

element “[t]hat the jury should consist of twelve men, neither more nor

less,” Patton, 281 U.S. at 288. And in 1968, this Court emphasized that

“the right to trial by jury guaranteed by the Sixth Amendment … is

fundamental to the American scheme of justice” and quoted Blackstone

for the proposition that “‘the truth of every accusation … should

afterwards be confirmed by the unanimous suffrage of twelve of [the

defendant’s] equals and neighbors.’” Duncan v. Louisiana, 391 U.S. 145,

149-52, 155 & n.23 (1968) (quoting 4 Blackstone, Commentaries on the

Laws of England 343).

In sum, the same considerations this Court identified in Ramos as

establishing that the Sixth Amendment requires a unanimous jury

verdict also require a twelve-person jury. Indeed, after reviewing many

of the sources discussed above, Ramos itself approvingly quoted

Thompson’s holding that “a defendant enjoys a ‘constitutional right to

demand that his liberty should not be taken from him except by the joint

action of the court and the unanimous verdict of a jury of twelve persons.’”

Ramos, 590 U.S. at 92 (quoting Thompson, 170 U.S. at 351).

II.

Williams’

Holding

That

Six-Person

Jury

Constitutionally Permissible Either Was Effectively

Overruled By Ramos Or Is Non-Binding Under The

Privileges or Immunities Clause.

The Court of Appeals’ only stated reason for disregarding the

history and precedent supporting a twelve-person jury requirement was

that it was bound by this Court’s holding in Williams. Exhibit 1. While

the decision below was understandable, this Court is not bound by

Williams, for two reasons.

First, this Court’s ruling in Ramos “repudiated the reasoning on

which” the Court of Appeals relied in Williams, meaning that Williams

“must be regarded as retaining no vitality.” Herrera v. Wyoming, 587 U.S.

329, 342 (2019); see also South Carolina v. Baker, 485 U.S. 505, 524

(1988) (confirming “that subsequent case law has overruled the holding”

in prior decision); Western & Southern Life Ins. Co. v. State Bd. of

Equalization of Cal., 451 U.S. 648, 664 n.16 (1981) (similar).

Williams cannot stand in light of Ramos’s holding that the Sixth

Amendment’s scope is determined by its original public meaning. The

Williams Court openly acknowledged that the Framers “may well” have

had “the usual expectation” in drafting the Sixth Amendment “that the

jury would consist of 12” members. 399 U.S. at 98-99. But Williams took

the view that such “purely historical considerations” were not dispositive.

Id. at 99. Rather, the Court focused on the “function” that the jury plays

in the Constitution. Id. at 100-01. It concluded that “the essential

feature” of a jury is that it leaves justice to the “commonsense judgment

of a group of laymen” and thus allows “guilt or innocence” to be

determined

via

“community

participation

and

[with]

shared

responsibility.” Id. With this understanding of the jury right in mind, the

Williams Court concluded that “[w]hat few experiments have occurred—

usually in the civil area” “suggest[ed]” that that function could just as

easily be performed with six jurors as with twelve. Id. at 101-02 & n.48.

As Justice Harlan explained at the time, this reading “stripp[ed] off

the livery of history from the jury trial” and ignored both “the intent of

the Framers” and the Court’s long held understanding that constitutional

“provisions are framed in the language of the English common law, and

… read in light of its history.” Baldwin v. New York, 399 U.S. 117, 12223 (1970) (Harlan, J., concurring in the result in Williams). And three

times during that same decade, this Court reaffirmed that Williams had

“departed from the strictly historical requirements of jury trial.” Burch

v. Louisiana, 441 U.S. 130, 137 (1979); accord Ballew, 435 U.S. at 229

(“[C]ommon-law juries included 12 members.”); Apodaca, 406 U.S. at

407-08 (“[T]he requirement that juries consist of 12 men … arose during

the Middle Ages and had become an accepted feature of the common law

jury by the 18th century.”).

More broadly, in overruling Apodaca, Ramos rejected the “same

fundamental mode of analysis as that in Williams.” Ramos, 590 U.S. at

157 (Alito, J., dissenting). Apodaca expressly recognized that Williams

“consider[ed] a related issue” and used Williams as a lodestone for its

reasoning. Apocada, 406 U.S. at 406-14; accord Ramos, 590 U.S. at 152

(Alito, J., dissenting) (noting that Apodaca “built on the analysis in

Williams”). All told, the Apodaca plurality cited Williams no less than

eleven times in a seven-page opinion. Its reliance included: (1) “cast[ing]

considerable doubt on the easy assumption … that if a given feature

existed in a jury at common law in 1789, it was necessarily preserved in

the Constitution”; (2) concluding that “[o]ur inquiry [in determining the

scope of the Sixth Amendment] must focus upon the function served by

the jury in contemporary society”; and (3) holding that the only “‘essential

feature of a jury’” guaranteed by the Sixth Amendment is that it must

“consist[] of a group of laymen representative of a cross section of the

community who have the duty and the opportunity to deliberate[.]” 406

U.S. at 408-10 (quoting Williams, 399 U.S. at 92-93, 99-100). Ramos

repudiated precisely this Williams-inspired reasoning as an improperly

“muddy yardstick” for safeguarding “the right to jury trial” that the

“American people chose to enshrine … in the Constitution.” 590 U.S. at

99-100 (majority op.).

Accordingly, Ramos’s decision to “reject [the plurality] opinion in

Apodaca” and hold that “the Fourteenth Amendment incorporates the

Sixth Amendment right to a unanimous jury against the States,” Vannoy,

593 U.S. at 262, had the necessary result of effectively overruling

Williams as well. And because “Ramos is the law,” it should be “give[n]

… all the consequence it deserves.” Vannoy, 593 U.S. at 295 n.1 (Kagan,

J., dissenting); see Espinoza v. Montana Dep’t of Revenue, 591 U.S. 464,

497 (2020) (Alito J., concurring) (“I lost, and Ramos is now precedent. If

the original motivation for the laws mattered there, it certainly matters

here.”).

Second, at a minimum, Williams—which considered only the

Fourteenth Amendment’s Due Process Clause—does not impede this

Court from recognizing a right to a twelve-person jury under the

Privileges or Immunities Clause. As Justice Thomas explained in an

analogous situation when concurring in the judgment in Ramos: (1) this

Court’s “decisions have long recognized [that a twelve-person jury] is

required,” (2) “[t]here is … considerable evidence that this understanding

persisted up to the time of the Fourteenth Amendment,” and (3) the only

contrary ruling (here, Williams) was decided under the Due Process

Clause. Ramos, 590 U.S. at 132-40 (Thomas, J., concurring in the

judgment). Thus, even if Williams remained good law under the Due

Process Clause, it has no bearing on whether “the Privileges or

Immunities clause” “protect[s]” the right to a twelve-person jury “against

the States.” Id. at 137-38. And because all other evidence beyond

Williams suggests that the Sixth Amendment imposes a twelve-member

jury requirement, this Court should hold that this right has been

extended against the States, if not under the Due Process Clause, then

under the Privileges or Immunities Clause.

III. To The Extent Williams Is Binding On The Twelve-Member

Jury Issue, This Court Should Formally Overrule It.

“[T]he force of stare decisis is at its nadir” in cases like this one—

i.e., those “concerning [criminal] procedur[e] rules that implicate

fundamental constitutional protection.” Alleyne v. United States, 570

U.S. 99, 116 n.5 (2013). Stare decisis’s “role is … reduced … in the case

of a [criminal] procedural rule” because such rules “do[] not serve as …

guide[s] to lawful behavior.” United States v. Gaudin, 515 U.S. 506, 521

(1995). Moreover, because this Court’s interpretation of the Constitution

“can only be altered by constitutional amendment or by overruling …

prior decisions,” Agostini v. Felton, 521 U.S. 203, 235 (1997), the strength

of stare decisis considerations is “reduced all the more when the rule is

not only procedural but rests upon an interpretation of the Constitution.”

Gaudin, 515 U.S. at 521.

With this point in mind, this Court’s stare decisis analysis considers

factors that “fold into three broad considerations”: (1) whether the

precedent is “egregiously wrong as a matter of law,” taking into account

“the quality of the precedent’s reasoning, consistency and coherence with

other decisions, changed law, changed facts, and workability, among

other factors”; (2) whether “the prior decision caused significant negative

jurisprudential or real-world consequences”; and (3) whether “overruling

the prior decision [would] unduly upset reliance interests.” Ramos, 590

U.S. at 122 (Kavanaugh, J., concurring in part); see also Franchise Tax

Bd. of Cal. v. Hyatt, 587 U.S. 230, 248 (2019) (laying out similar factors).

Each consideration suggests that Williams should be overruled.

A. Williams Is Egregiously Wrong

As explained above, Williams is flawed for the same reason as

Apodaca. That is, the Williams Court spent little time “grappling with

the historical meaning of the Sixth’s Amendment’s jury trial right [or]

this Court’s long-repeated statements that it demands [a jury of twelve

members]” and “[i]nstead … subjected the Constitution’s jury trial right

to an incomplete functionalist analysis of its own creation.” Ramos, 590

U.S. at 106. This error in approach was “not just wrong”—it was

“egregiously wrong.” Id. at 121, 132 (Kavanaugh, J., concurring in part).

Even at the time it was decided, Williams (like Apodaca) was

“already an outlier in the Court’s jurisprudence,” Ramos, 590 U.S. at 125

(Kavanaugh, J., concurring in part), as it was plainly inconsistent with

centuries of related decisions and history. It contradicted ancient

common-law guarantees and hundreds of years of precedent from state

high courts and this Court alike. In 1900—seventy years before Williams

was decided—this Court already expressed “no doubt” that “the Sixth

Amendment” “intended” “a jury composed … of twelve jurors.” Maxwell,

176 U.S. at 586. And within a decade after Williams issued, three other

decisions from this Court—Baldwin, Burch, and Ballew—recognized that

it had departed from the traditional historical understanding of the jury

trial right.

As explained above, Williams’ reasoning and holding have also been

fatally undercut by Ramos. To give one additional example, Ramos

demolished Williams’ brief attempt at historical analysis. Specifically,

Williams placed weight on the fact that, in enacting the Sixth

Amendment, the Senate chose not to include language that had been

proposed by James Madison to clarify that “trial by jury” included the

“requisite of unanimity for conviction, of the right to challenge, and other

accustomed requisites.” 399 U.S. at 94 (quoting 1 Annals of Cong. 435

(1789)). That omission suggested to the Williams Court that the Sixth

Amendment was not intended to include a jury’s “accustomed requisites,”

such as the common law practice of including twelve members. Id. at 9597. Ramos, however, explicitly rejected this precise argument, albeit in

considering unanimity. 590 U.S. at 97-98 (noting that the “snippet of

drafting history could just as easily support the … inference” that the

language was deleted because it was “so plainly included in the promise

of a ‘trial by an impartial jury’”).

Even taking the Williams functionalist approach as valid, the

decision suffers from another significant flaw: It was based on

“suggest[ions]” from a “few experiments” that were undermined shortly

after the opinion issued. 399 U.S. at 101. Specifically, the Williams Court

“f[ou]nd little reason to think” that the goals and traditional function of

the jury—including, among others, “to provide a fair possibility for

obtaining a representative[] cross-section of the community”—“are in any

meaningful sense less likely to be achieved when the jury numbers six,

than when it numbers 12.” Id. at 100. The Court theorized that “in

practice the differences 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.

Empirical research issued shortly after Williams undermined this

speculation, as this Court recognized eight years later in Ballew. See 435

U.S. at 232-37. See also Cunningham, 144 S. Ct. at 1288 (Gorsuch, J.,

dissenting from denial of certiorari) (“But almost before the ink could dry

on the Court’s opinion, the social science studies on which it relied came

under scrutiny.”). Ballew, which concluded that the Sixth Amendment

barred the use of a five-person jury, noted that post-Williams research

showed that (1) “smaller juries are less likely to foster effective group

deliberation[s],” id. at 232; (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 concluding 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., concurring) (observing that “the line between five- and sixmember juries is difficult to justify”).

Although Ballew declined to overrule Williams outright, the bench,

bar, and scholars have all recognized that it cast serious doubt on the

strength of Williams’ reasoning. As the American Bar Association

summarized, Ballew “acknowledged the empirical findings pointing to

the superiority of twelve member juries … when it concluded that juries

of fewer than six are unconstitutional.” ABA, Principles for Juries and

Jury Trials Principle 3 cmt., at 18.

Research post-dating Ballew further undermines Williams’ view

that a small jury can provide a representative cross-section of the

community. Current empirical evidence indicates that “reducing jury size

inevitably has a drastic effect on the representation of minority group

members on the jury.” Diamond et al., Achieving Diversity on the Jury:

Jury Size and the Peremptory Challenge, 6 J. of Empirical Legal Stud.

425, 427 (Sept. 2009); see also 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.”). Because

“the 12-member jury produces significantly greater heterogeneity than

does the six-member jury,” Diamond et al., Achieving Diversity, 6 J. of

Empirical Legal Stud. at 425, 449, it increases “the opportunity for

meaningful and appropriate representation” and helps ensure that juries

“represent adequately a cross-section of the community.” Ballew, 435

U.S. at 237.

Other important considerations also weigh in favor of the twelvemember jury. For instance, studies indicate that twelve-member juries

deliberate longer, recall evidence better, and are less likely to rely on

irrelevant factors during deliberation. Alisa Smith & Michael J. Saks,

The Case for Overturning Williams v. Florida and the Six-Person Jury,

60 Fla. L. Rev. 441, 465 (April 2008). Minority views are also more likely

to be considered 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.” Id. at 466. And 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, 104 Judicature at 52.

In sum, whether Williams’ reasoning is analyzed under the

historical test laid out in Ramos or under the functionalist test that

Williams itself created, it is egregiously, incontrovertibly wrong.

B. Williams Causes Significant Negative Jurisprudential

And Real-World Consequences

Decisions following Williams have illustrated the jurisprudential

difficulties it created: in Ballew, a split Court struggled to apply the

functionalist approach, with multiple members acknowledging that the

line being drawn had little foundation in law or fact. And, of course, this

Court fundamentally rejected its approach in Ramos.

Jurisprudential conflict aside, the Williams Court’s conclusion that

a six-member jury is no different than a twelve-member jury has “caused

significant negative … real-world consequences.” Ramos, 590 U.S. at 12324 (Kavanaugh, J., concurring in part). As noted above, juries of less than

twelve are less likely to include members of minority groups, spend less

time deliberating, recall less evidence, are more likely to rely on

irrelevant factors, are less likely to consider minority viewpoints, and are

less predictable than twelve-member juries. Williams thus permits “the

conviction at trial or by guilty plea of some defendants who might not be

convicted under the proper constitutional rule,” a drastic “consequence

[that] has traditionally supplied some support for overruling an

egregiously wrong criminal-procedure precedent.” 590 U.S. at 126

(Kavanaugh, J., concurring in part) (citing Malloy v. Hogan, 378 U.S. 1

(1964)).

Even beyond the individual defendants affected by the Williams

rule, permitting six- or eight-person juries in felony cases does real harm

to public perception of the jury as a legitimate, representative body. As

this Court has explained, “[o]ur notions of what a proper jury is have

developed in harmony with our basic concepts of a democratic society and

a representative government,” and, to fulfill that function, the jury must

“be a body truly representative of the community.” Taylor v. Louisiana,

419 U.S. 522, 527 (1975) (emphasis added and quotation marks omitted).

The Williams rule increases the odds that in the six States that continue

to permit juries of less than twelve, the jury will not include a true crosssection of the community—and that the members who do belong to a

racial, religious, or cultural minority will be given less of an opportunity

to express their views. Put slightly differently, Williams threatens the

vitality of one of the “most essential” constitutional protections, Ramos,

590 U.S. at 113 (Sotomayor, J., concurring): America’s “deep commitment

… to the right of a jury trial … as a defense against arbitrary law

enforcement,” Codispoti v. Pennsylvania, 418 U.S. 506, 515-16 (1974)

(quotation marks omitted).

C. Any Reliance On Williams Is Limited And Outweighed By

The Importance Of The Sixth Amendment Right

Much like in Ramos, overruling Williams would not implicate the

kind of “prospective economic, regulatory, or social disruption litigants

seeking to preserve precedent usually invoke.” 590 U.S. at 107. Nor can

Arizona reasonably argue that juries with less than twelve members

“have ‘become part of our national culture,’” as twelve-member juries are

required for felony trials in 44 States and federal court. Id. at 107-08.

And while the six States that permit smaller juries in criminal cases may

well have to retry some cases that are pending on direct appeal, “new

rules of criminal procedures … often affect[] significant numbers of

pending cases across the … country.” Id. at 108.

At the same time, allowing Williams to remain in place harms “the

most important” “reliance interest[]”—that “of the American people” “in

the preservation of our constitutionally promised liberties.” Ramos, 590

U.S. at 110-11 (plurality op.). That a few States might have “to retry a

slice of their prior criminal cases … cannot outweigh the interest we all

share in the preservation of our constitutionally promised liberties.” Id.;

accord 590 U.S. at 129-30 (Kavanaugh, J., concurring in part); see also

Vannoy, 593 U.S. at 298 (Kagan, J., dissenting) (recognizing “the need to

ensure” that the Sixth Amendment “keep[s] with the Nation’s oldest

traditions” so that defendants are provided “fair and dependable

adjudications of [their] guilt”). Indeed, there does not appear to be a

single “case in which a one-time need to retry defendants has ever been

sufficient to inter a constitutional right forever.” Ramos, 590 U.S. at 111.

The Williams rule should not be the first.

***

“This Court has long explained that the Sixth Amendment right to

a jury trial is ‘fundamental to the American scheme of justice.’” Ramos,

590 U.S. at 93 (quoting Duncan, 391 U.S. at 149). That right is

diminished by the continuing use of juries smaller than twelve, since “any

[] reduction [in jury size] that promotes inaccurate and possibly biased

decisionmaking, that causes untoward differences in verdicts, and that

prevents juries from truly representing their communities, attains

constitutional significance,” Ballew, 435 U.S. at 239. Absent intervention

from this Court, defendants in six States will continue to be denied their

right to a twelve-member jury—one that adequately represents a crosssection of their communities.