Petitioners Brief — Hamed Kian, Petitioner v. Florida

Supreme Court briefAug 6, 2026

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No. 25-6623

IN THE

Supreme Court of the United States

HAMED KIAN,

Petitioner,

STATE OF FLORIDA,

Respondent.

ON WRIT OF CERTIORARI TO THE

FOURTH DISTRICT COURT OF APPEAL OF FLORIDA

BRIEF FOR PETITIONER

SETH P. WAXMAN

DANIEL EISINGER

Public Defender

Counsel of Record

PAUL EDWARD PETILLO

WILMER CUTLER PICKERING

BENJAMIN EISENBERG

HALE AND DORR LLP

Assistant Public

2100 Pennsylvania Ave. NW

Defenders

Washington, DC 20037

OFFICE OF THE PUBLIC

(202) 663-6000

DEFENDER

seth.waxman@wilmerhale.com

FIFTEENTH JUDICIAL

ALEX W. MILLER

CIRCUIT OF FLORIDA

WILMER CUTLER PICKERING

421 Third Street

HALE AND DORR LLP

6th Floor

World

Trade Center

West Palm Beach, FL 33401

250 Greenwich Street

THOMAS G. SPRANKLING New York, NY 10007

WILMER CUTLER PICKERING

ADELA LILOLLARI

HALE AND DORR LLP

WILMER CUTLER PICKERING

2600 El Camino Real

HALE AND DORR LLP

Suite 400

60 State Street

Palo Alto, CA 94306

Boston, MA 02109

QUESTION PRESENTED

Whether Petitioner was deprived of his right, under

the Sixth and Fourteenth Amendments, to a trial by a

12-person jury.

(i)

PARTIES TO THE PROCEEDING

Petitioner Hamed Kian and Respondent Florida

were the only parties to the proceeding in the court

whose judgment is under review.

(ii)

TABLE OF CONTENTS

Page

QUESTION PRESENTED ...............................................i

PARTIES TO THE PROCEEDING ............................. ii

TABLE OF AUTHORITIES ......................................... vi

INTRODUCTION .............................................................. 1

OPINION BELOW............................................................. 4

JURISDICTION ................................................................. 4

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ...................................... 5

STATEMENT ..................................................................... 5

A. Historical And Constitutional

Background ............................................................ 5

Juries Have Been Composed Of 12

Members For A Millennium ......................... 5

B. Factual And Procedural Background .............. 11

Florida And Several Other States

Permit Small Juries To Try

Felonies ......................................................... 11

Mr. Kian Is Convicted Of Felonies

By A Six-Person Florida Jury ................... 14

SUMMARY OF THE ARGUMENT ............................. 15

ARGUMENT ..................................................................... 16

THE SIXTH AND FOURTEENTH

AMENDMENTS REQUIRE DEFENDANTS

CHARGED WITH SERIOUS CRIMES TO

BE TRIED BEFORE 12-MEMBER JURIES .................. 16

(iii)

TABLE OF CONTENTS—Continued

Page

A. Ramos Established That The Sixth

Amendment’s Jury Trial Clause Is

Defined By Its Original Public

Meaning ................................................................ 16

B. The Original Public Meaning Of “Trial

By An Impartial Jury” Requires A

12-Member Jury For Serious Crimes .............. 18

C. The Sixth Amendment’s 12-Member

Jury Requirement Applies To The

States, Including Florida ................................... 23

II. TO THE EXTENT THIS COURT HAS NOT

ALREADY OVERRULED WILLIAMS, IT

SHOULD DO SO NOW ................................................... 24

A. Ramos Effectively Overruled

Williams ............................................................... 24

B. If Williams Remains Good Law, The

Court Should Formally Overrule It ................. 27

Williams Is Egregiously Wrong ............... 29

Williams Conflicts With The

Original Public Meaning Of

The Sixth Amendment’s Jury

Trial Right ............................................. 29

b. Williams’s Functionalist

Reasoning Is Wrong On Its

Own Terms ............................................ 30

Williams Has Caused Significant

Negative Jurisprudential And

Real-World Consequences.......................... 34

TABLE OF CONTENTS—Continued

Page

Any Reliance On Williams Is

Outweighed By The Importance

Of The Sixth Amendment Jury

Trial Right .................................................... 37

CONCLUSION ................................................................. 39

TABLE OF AUTHORITIES

CASES

Page(s)

Agostini v. Felton, 521 U.S. 203 (1997) .......................... 27

Alleyne v. United States, 570 U.S. 99 (2013) ........... 27, 28

Apodaca v. Oregon, 406 U.S. 404 (1972) ................... 17, 26

Apprendi v. New Jersey, 530 U.S. 466 (2000) ................ 23

Baldwin v. New York, 399 U.S. 66 (1970) ...................... 17

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

Ballew v. Georgia, 435 U.S. 223

(1978) .......................................... 3, 15, 26, 31, 33, 35, 39

Brown v. Louisiana, 447 U.S. 323 (1980) ....................... 35

Burch v. Louisiana, 441 U.S. 130 (1979) ........................ 26

Calvin v. Smith, 77 Eng. Rep. 377 (K.B. 1608) ............... 6

Cancemi v. People, 18 N.Y. 128 (1858)....................... 9, 20

Capital Traction Company v. Hof, 174 U.S. 1

(1899) ...................................................................... 10, 22

Codispoti v. Pennsylvania, 418 U.S. 506 (1974) ........... 36

Cunningham v. Florida, 144 S. Ct. 1287 (2024) ... 3, 4, 23

Duncan v. Louisiana, 391 U.S. 145 (1968) .............. 14, 38

Edwards v. Vannoy, 593 U.S. 255 (2021) ..... 16, 17, 27, 38

Emerick v. Harris, 1 Binn. 416 (Pa. 1808) ................... 8, 9

Erlinger v. United States, 602 U.S. 821 (2024) ....... 23, 38

Espinoza v. Montana Department of Revenue,

591 U.S. 464 (2020) ..................................................... 27

vii

TABLE OF AUTHORITIES—Continued

Page

Florida Fertilizer & Manufacturing Company

v. Boswell, 34 So. 241 (Fla. 1903) ............................. 11

Foote v. Lawrence, 1 Stew. 483 (Ala. 1828) ..................... 9

Franchise Tax Board of California v. Hyatt,

587 U.S. 230 (2019) ..................................................... 28

Gibson v. State, 16 Fla. 291 (1877)................................... 11

Guzman v. State, 350 So. 3d 72 (Fla. Dist. Ct.

App. 2022) .................................................................... 12

Herrera v. Wyoming, 587 U.S. 329 (2019).......... 15, 24, 26

Hurst v. Florida, 577 U.S. 92 (2016) ......................... 25, 27

Khorrami v. Arizona, 143 S. Ct. 22

(2022) ............................................ 2, 4, 28, 30, 31, 36, 37

Ibanez v. Florida Department of Business &

Professional Regulation, Board of

Accountancy, 512 U.S. 136 (1994) .............................. 4

Larillian v. Lane & Company, 8 Ark. 372

(1848) .............................................................................. 9

Malloy v. Hogan, 378 U.S. 1 (1964) ................................ 35

Maxwell v. Dow, 176 U.S. 581 (1900) .... 10, 17, 19, 22, 24, 29

Opinion of Justices, 41 N.H. 550 (1860) ..................... 9, 21

Opinion of Justices, 431 A.2d 135 (N.H. 1981) .............. 32

Patton v. United States, 281 U.S. 276 (1930) ..... 11, 17, 23

Phillips v. State, 316 So. 3d 779 (Fla. Dist. Ct.

App. 2021) .................................................................... 13

Ramos v. Louisiana, 590 U.S. 83

(2020) ............................ 1-3, 15-19, 22, 24, 26-30, 34-38

viii

TABLE OF AUTHORITIES—Continued

Page

Rassmussen v. United States, 197 U.S. 516

(1905) ............................................................................ 22

Rouse v. State, 4 Ga. 136 (1848) ......................................... 9

South Carolina v. Baker, 485 U.S. 505 (1988) ............... 24

Southern Union Company v. United States,

567 U.S. 343 (2012) ..................................................... 23

State v. Hamm, 423 N.W.2d 379 (Minn. 1988)............... 32

State v. Johnson, 616 So. 2d 1 (Fla. 1993) ........................ 4

Taylor v. Louisiana, 419 U.S. 522 (1975)................. 35, 36

Thompson v. Utah, 170 U.S. 343 (1898) ..... 2, 6, 10, 17, 22

Vaughn v. Scade, 30 Mo. 600 (1860) ............................ 9, 20

Western & Southern Life Insurance Company

v. State Board of Equalization of

California, 451 U.S. 648 (1981) ................................ 24

Whitehurst v. Davis, 3 N.C. 113 (1800) ............................ 9

Williams v. Florida, 399 U.S. 78

(1970) ........................ 2, 6-7, 12, 15, 21, 23, 25-26, 30-31

Work v. State, 2 Ohio St. 296 (1853) ............................ 9, 20

Zylstra v. Corporation of City of Charleston,

1 S.C.L. (1 Bay) 382 (1794) .......................................... 9

United States v. Gaudin, 515 U.S. 506 (1995) ......... 23, 27

DOCKETED CASES

Parada v. United States, No. 25-166 (U.S.) ................... 13

TABLE OF AUTHORITIES—Continued

Page

CONSTITUTIONS, STATUTES, AND RULES

U.S. Constitution

VI amend. ...................................................................... 5

XIV amend. ................................................................... 5

Florida Constitution

art. I, § 3 (1868) ........................................................... 11

art. I, § 6 (1838) ........................................................... 11

art. I, § 22 ................................................................. 5, 12

Louisiana Constitution

art. I, § 17 ..................................................................... 14

art. 116 (1898) .............................................................. 36

South Carolina Constitution art. III, § 1 (1865) ............ 36

28 U.S.C. § 1257 ................................................................... 4

Ariz. Rev. Stat. § 21-102 ................................................... 13

Conn. Gen. Stat. § 54-82.................................................... 13

Fla. Stat.

§ 460.411 ....................................................................... 14

§ 775.082 ....................................................................... 14

§ 913.10 ............................................................... 5, 12, 14

Ind. Code Ann.

§ 35-37-1-1 .................................................................... 13

§ 35-50-2-7 .................................................................... 13

Laws of Fla., ch. 3010 (1877) ............................................ 12

Mass. Gen. Laws ch. 218

§ 26 ................................................................................ 14

§ 26A ....................................................................... 13, 14

1866 S.C. Sess. Laws 493 .................................................. 36

TABLE OF AUTHORITIES—Continued

Page

Utah Code Ann. § 78B-1-104............................................ 14

Fed. R. Crim. P. 23 ............................................................ 13

LEGISLATIVE MATERIALS

1 Annals of Cong. 435 (1789) ............................................ 30

1 Annals of Cong. 755 (1789) ............................................ 38

OTHER AUTHORITIES

ABA, Principles for Juries and Jury Trials

(rev. 2023) .......................................................... 3, 19, 37

Anwar, Shamena, et al., The Impact of Jury Race

in Criminal Trials, 127 Q.J. Econ. 1017

(2012) ................................................................................. 33

Arnold, Richard S., Trial by Jury: The

Constitutional Right to a Jury of Twelve in

Civil Trials, 22 Hofstra L. Rev. 1 (1993) .................. 6

Bacon, Matthew, A New Abridgment of the

Law (1740) ..................................................................... 6

Bates, Larry, Trial by Jury After Williams v.

Florida, 10 Hamline L. Rev. 53 (1987) ................... 7, 8

Bishop, Joel P., Commentaries on the Law of

Criminal Procedure (2d ed. 1872) ..................... 10, 21

Blackstone, William, Commentaries on the

Laws of England (1769) .................................. 6, 19, 23

Coke, Edward, The First Part of the Institutes

of the Laws of England (1628) .................................... 6

TABLE OF AUTHORITIES—Continued

Page

Colbert, Douglas L., Challenging the Challenge:

Thirteenth Amendment as a Prohibition

against the Racial Use of Peremptory

Challenges, 76 Cornell L. Rev. 1 (1990) .................... 12

Diamond, Shari S., et al., Achieving Diversity on

the Jury: Jury Size and the Peremptory

Challenge, 6 J. of Empirical Legal Stud. 425

(2009) ............................................................................... 33

Duncombe, Giles, Trials per Pais: Or, The

Law of England Concerning Juries by

Nisi Prius, &c (8th ed. 1766) .................................... 10

First Two Women Are Picked for Possible

Jury Duty in County, Citrus County

Chronicle (Feb. 16, 1950) ........................................... 12

Florida’s Historic Constitutions, Florida

Memory: State Library and Archives of

Florida, https://www.floridamemory.com/

discover/historical_records/constitution/

(visited Aug. 6, 2026).................................................. 11

Forsyth, William, History of Trial by Jury

(James Appleton Morgan 2d ed. 1878) ...................... 5

Frampton, T. Ward, Comment, The Uneven

Bulwark: How (And Why) Criminal

Jury Trial Rates Vary By State,

100 Cal. L. Rev. 183 (2012) ........................................ 32

Hale, Matthew, The History of the Common

Law of England (1713) ................................................ 6

Higginbotham, Patrick E., et al., Better by the

Dozen, 104 Judicature 46 (2020) ............................... 33

xii

TABLE OF AUTHORITIES—Continued

Page

Holmes v. Walton: The New Jersey Precedent,

4 Amer. Hist. Rev. 456 (1886) ..................................... 7

Jacob, Giles, Jury, A New Law-Dictionary (1st

ed. 1729) ......................................................................... 7

Johnson, Samuel, Jury, A Dictionary of the

English Language (4th ed. 1773) ............................... 7

Miller, Robert, 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, 9, 20

Mosvick, Nicholas, Forgotten Founders:

James Wilson, craftsman of the

Constitution, The National Constitution

Center (July 13, 2020) ................................................ 21

Official Journal of the Proceedings of the

Constitutional Convention of the State of

Louisiana (H. Hearsey ed. 1898) ............................. 36

Reinsch, Paul S., The English Common Law in

the Early American Colonies, in 1 Select

Essays in Anglo-American Legal History

(1907) .............................................................................. 8

Saks, Michael & Mollie W. Marti, A MetaAnalysis of the Effects of Jury Size,

21 Law & Hum. Behav. 451 (1997) ........................... 34

Scott, Austin W., Trial by Jury and the Reform

of Civil Procedure, 31 Harv. L. Rev. 669

(1918) .............................................................................. 7

xiii

TABLE OF AUTHORITIES—Continued

Page

Shofner, Jerrell H., Reconstruction and

Renewal, 1865-1877, in The History of

Florida 273 (Michael Gannon ed. 2018) ................... 11

Smith, Alisa & Michael J. Saks, The Case

for Overturning Williams v. Florida and

the Six-Person Jury: History, Law, and

Empirical Evidence, 60 Fla. L. Rev. 441

(2008) ...................................................................... 32, 34

Story, Joseph & Thomas M. Cooley,

Commentaries on the Constitution of the

United States (4th ed. 1873) ................................ 10, 21

Su, Wanling & Rahul Goravara, What Is a

Jury?, 103 N.C. L. Rev. 969 (2025) ........................ 3, 8

Thayer, James B., A Preliminary Treatise on

Evidence at the Common Law (1898)...................... 19

Thayer, James B., The Jury and Its

Development, 5 Harv. L. Rev. 295 (1892) ................. 6

The Debates in the Several State Conventions

(Jonathan Elliot ed., Philadelphia, J.B.

Lippincott Co. 1891) ..................................................... 8

Tiffany, Joel, A Treatise on Government and

Constitutional Law (1867) ........................................ 10

Wambaugh, Eugene, A Selection of Cases on

Constitutional Law (1915) .......................................... 7

Wilson, James, The Works of the Honourable

James Wilson (Bird Wilson ed., Philadelphia,

Bronson & Chauncey 1804)....................................... 8, 21

xiv

TABLE OF AUTHORITIES—Continued

Page

Zeisel, Hans, …And Then There Were None:

The Diminution of the Federal Jury,

38 U. Chi. L. Rev. 710 (1971) .................................... 31

IN THE

Supreme Court of the United States

No. 25-6623

HAMED KIAN,

Petitioner,

STATE OF FLORIDA,

Respondent.

ON WRIT OF CERTIORARI TO THE

FOURTH DISTRICT COURT OF APPEAL OF FLORIDA

BRIEF FOR PETITIONER

INTRODUCTION

How large must a jury be when trying a serious

crime, such as a felony? For hundreds of years, 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 12-person jury requirement falls within “what the term ‘trial by an impartial

jury’ meant at the time of the Sixth Amendment’s adoption.” Ramos, 590 U.S. at 90. Because the rule was

recognized by “the common law, state practices in the

founding era, [and] opinions and treatises written soon

afterward,” id., “[i]t must consequently be taken that the

word ‘jury’ and the words ‘trial by jury’ were placed in

the constitution of the United States with reference to

[that] meaning affixed to them,” Thompson v. Utah, 170

U.S. 343, 350 (1898).

Petitioner Hamed Kian was accordingly entitled to

a 12-member jury when he was charged with five counts

of practicing chiropractic medicine with a suspended license—a felony punishable under Florida law by up to

five years in prison for each count. Mr. Kian, however,

was tried before a panel of six, based on a state law this

Court upheld in Williams v. Florida, 399 U.S. 78 (1970).

Williams gave no weight to the historical record, despite

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 the view that the

essential “function” of a jury is decision-making made

with “community participation and shared responsibility”—a function the Court believed could be as easily

performed with six jurors as with 12. Id. at 100-102 &

n.48. Today, Florida and a few other States routinely

empanel juries with as few as six members to try felonies

that could result in significant terms of imprisonment.

“Williams was wrong the day it was decided,”

Khorrami v. Arizona, 143 S. Ct. 22, 23 (2022) (Gorsuch,

J., dissenting from denial of certiorari), and its reasoning

quickly eroded.

Even Ramos’s detractors have

acknowledged that Ramos’s history-focused approach to

the Sixth Amendment rejected “the same fundamental

mode of analysis” adopted in Williams. Ramos, 590 U.S.

at 157 (Alito, J., dissenting). And whatever the viability

of the Williams functionalist approach today, this Court

has long recognized that Williams’s understanding of

the available social science was badly flawed—smaller

juries actually “lead[] to inaccurate fact-finding and incorrect application of the common sense of the community to the facts.” Ballew v. Georgia, 435 U.S. 223, 232237 (1978). Today, moreover, it is well-established that

“[s]ix-person juries produce more volatile verdicts, engage in lower-quality deliberations, and are significantly

less likely to include minority voices.” Su & Goravara,

What Is a Jury?, 103 N.C. L. Rev. 969, 1030 (2025); accord ABA, Principles for Juries and Jury Trials, Principle 3 cmt., at pp.25-26 (rev. 2023).

This Court should discard the ahistorical and unfounded Williams rule, just as Ramos overturned a similar decision from the Williams era that permitted a defendant to be convicted by a nonunanimous jury. Even

if Williams still has precedential force after Ramos, its

reasoning is egregiously wrong: It “substituted bad social science for careful attention to the Constitution’s

original meaning.” Cunningham v. Florida, 144 S. Ct.

1287, 1288 (2024) (Gorsuch, J., dissenting from denial of

certiorari). The Williams decision has also had realworld negative consequences: It increases the odds of

an erroneous conviction and decreases the representative nature of the juries in the affected States. Finally,

any “reliance interest” those 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 110-111 (plurality op.); id. at 129 (Kavanaugh, J.,

concurring in part) (invalidating a “limited class” of convictions that violate the Sixth Amendment is a “‘small

price to pay for the uprooting of this weed’”).

Ultimately, the “right to trial by jury should mean

no less today, and afford no fewer protections for

individual liberty, than it did at the Nation’s founding.”

Cunningham, 144 S. Ct. at 1288 (Gorsuch, J., dissenting

from denial of certiorari). Mr. Kian respectfully submits

that this Court should take this opportunity to “correct

[its] mistake in Williams,” id., and restore to “the American people a liberty their predecessors long and justly

considered inviolable,” Khorrami, 143 S. Ct. at 27 (Gorsuch, J., dissenting from denial of certiorari). The judgment below should be reversed.

OPINION BELOW

The decision of Florida’s Fourth District Court of

Appeal, which is the first court in which the Sixth

Amendment issue was raised, is reported at 421 So. 3d

439 (Fla. Dist. Ct. App. 2025) (mem.), Pet.App.2.1

JURISDICTION

Florida’s Fourth District Court of Appeal affirmed

Mr. Kian’s conviction on October 16, 2025, without written opinion, meaning Mr. Kian had “no right of review in

the Florida Supreme Court.” Ibanez v. Florida Dep’t of

Bus. & Prof. Reg., Bd. of Accountancy, 512 U.S. 136, 142

(1994) (granting certiorari under similar circumstances).

On January 9, 2026, Mr. Kian timely filed a petition for a

writ of certiorari, which the Court granted on June 15,

2026. This Court has jurisdiction under 28 U.S.C.

§ 1257(a).

Florida law permits claims involving “fundamental” constitutional error to be raised for the first time on appeal, see State v.

Johnson, 616 So. 2d 1, 3-4 (Fla. 1993), and Florida did not contest

that Mr. Kian properly preserved his constitutional challenge in its

brief in opposition to the petition for certiorari.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The Sixth Amendment to the U.S. 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[.]”

The Fourteenth Amendment to the U.S. Constitution provides in relevant part: “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[.]”

Article I, § 22 of the Florida Constitution provides:

“The right of trial by jury shall be secure to all and remain inviolate. The qualifications and the number of jurors, not fewer than six, shall be fixed by law.”

Florida Statutes, § 913.10 provides: “Twelve persons shall constitute a jury to try all capital cases, and

six persons shall constitute a jury to try all other criminal cases.”

STATEMENT

A. Historical And Constitutional Background

1. Juries Have Been Composed Of 12 Members For A Millennium

The precise origins of the 12-person jury right are so

ancient that they have been “lost in the night of time.”

Forsyth, History of Trial by Jury 2 (James Appleton

Morgan 2d ed. 1878). Greek mythology speaks of Ares’s

trial before 12 gods, Miller, Comment, 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, 633 (1998), and at least as early as the 10th

century, English law “provided that twelve thanes—or

knights—and a representative of the king would swear

upon a relic that they would ‘accuse no innocent man, nor

conceal any guilty one,’” Arnold, Trial by Jury: The Constitutional Right to a Jury of Twelve in Civil Trials, 22

Hofstra L. Rev. 1, 6 (1993). The reign of King Henry II

later “established twelve as the usual number” for a

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

Rev. 295, 295 (1892), and this Court observed that the

Magna Carta’s declaration in 1215 “that no freeman

should be deprived of life, etc., ‘but by the judgment of

his peers or by the law of the land,’” can be understood

to “refer[] to a trial by twelve jurors.” Thompson, 170

U.S. at 349.

“[S]ometime in the 14th century the size of the jury

at common law came to be fixed generally at 12[.]” Williams v. Florida, 399 U.S. 78, 89 (1970). Calvin’s Case,

for example, describes a jury of “twelve free and lawful

men.” Calvin v. Smith, 77 Eng. Rep. 377, 378 (K.B.

1608). Lord Coke wrote in 1628 that the “number of 12

is much respected[.]” The First Part of the Institutes of

the Laws of England § 234 (1628). In 1713, Sir Matthew

Hale explained that a jury should have “[t]welve, and no

less,” The History of the Common Law of England 256

(1713), as did Matthew Bacon—who wrote a few decades

later that a jury “can be neither more nor less” than

twelve, 3 A New Abridgment of the Law 234 (1740).

Drawing on this long history of consensus, Blackstone

wrote in 1769 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.” 4 Blackstone, Commentaries on

the Laws of England 343 (1769).

Twelve-member juries were fixtures in at least most

of the American colonies at the time of the founding. As

in England, “trial by jury in criminal cases meant a

twelve-person jury which delivered a unanimous verdict.” Bates, Trial by Jury After Williams v. Florida, 10

Hamline L. Rev. 53, 65 (1987). This tradition traced to

the earliest settlers—“[t]he instructions for the governing of Virginia which were delivered in 1608 expressly

provide for ‘trial by 12 honest and indifferent persons,’”

and “[t]he New Plymouth Act of 1647 which established

the judicial procedure for that settlement provided for

trial by a jury of twelve persons.” Id.2 By the time the

Constitution was drafted, numerous States—including

Virginia, Massachusetts, New Hampshire, New York,

and Pennsylvania—had laws or constitutional provisions

expressly referencing 12-member juries. Bates, 10

Hamline L. Rev. at 65-66. The 12-member requirement

was so ingrained in the public consciousness that it appeared in several dictionaries. See Jacob, Jury, A New

Law-Dictionary (1st ed. 1729) (noting that “the Petit

Jury consisteth of twelve Men”); see also 1 Johnson,

Jury, A Dictionary of the English Language (4th ed.

1773) (defining the grand and petit juries as “a company

of men, as twenty-four or twelve, sworn to deliver a

truth upon such evidence as shall be delivered them

touching the matter in question”).3

Indeed, the first American statute ever declared unconstitutional was a New Jersey law permitting trials by six jurors, which

the New Jersey Supreme Court held in 1780 violated a colonial constitutional provision stating that “the inestimable right of trial by

jury shall remain confirmed as a part of the law of this colony, without repeal forever.” Scott, Trial by Jury and the Reform of Civil

Procedure, 31 Harv. L. Rev. 669, 673 & n.17 (1918) (quoting Holmes

v. Walton: The New Jersey Precedent, 4 Amer. Hist. Rev. 456 (1886);

Wambaugh, A Selection of Cases on Constitutional Law 21 (1915)).

Florida suggests that Pennsylvania “employed juries of six

or seven.” Brief in Opp. 8 (“Opp.”) (quoting Williams, 399 U.S. at

It is accordingly unsurprising that “most of the delegates to the Constitutional Convention in 1787” believed that “trial by jury in criminal cases meant trial by

a body of twelve persons all of whom agreed to the verdict.” Bates, 10 Hamline L. Rev. at 66. For example,

James Wilson—a framer of the Constitution and later

justice of this Court—explained in 1790, shortly before

the ratification of the Sixth Amendment, that “the unanimous sentiment of the twelve jurors is of indispensable

necessity” to “the conviction of a crime.” 2 Wilson, The

Works of the Honourable James Wilson 350 (Bird Wilson ed., Philadelphia, Bronson & Chauncey 1804). And

during the ratification debates themselves, speakers

from across the thirteen States repeatedly referred to

juries as being comprised of twelve members. See, e.g.,

3 The Debates in the Several State Conventions 467 (Jonathan Elliot ed., Philadelphia, J.B. Lippincott Co. 1891)

(Governor Edmund Randolph, at the Virginia convention, noted that “[t]here is no suspicion that less than

twelve jurors will be thought sufficient”); 2 The Debates

in the Several State Conventions 540 (Thomas McKean,

at the Pennsylvania convention, observed that “[j]uries

are not infallible because they are twelve in number”); 4

The Debates in the Several State Conventions 154 (Samuel Spencer, at the North Carolina convention, declared

that “cases which affect … lives and property, are to be

98 n.45 and citing Reinsch, The English Common Law in the Early

American Colonies, in 1 Select Essays in Anglo-American Legal

History 367, 398 (1907)). But Reinsch was describing “informal”

procedures employed by Pennsylvania in 1673. Reinsch, supra, at

398. The “first settlers of the province” were soon granted the right

to “trials by twelve men, and, as near as may be, peers, or equals[.]”

Emerick v. Harris, 1 Binn. 416, 426 (Pa. 1808) (Brackenridge, J.,

op.); see also Su & Goravara, 103 N.C. L. Rev. at 1001-1002 & nn.213214 (discussing Emerick).

decided, in a great measure, by the consent of twelve

honest disinterested men”).

In the decades after the Sixth Amendment was ratified, state courts uniformly held that the term “trial by

jury” in their own constitutions required 12 jurors. E.g.,

Miller, 146 U. Pa. L. Rev. at 643 & n.133 (collecting

cases). In 1794, for example, a South Carolina court interpreted its state constitution to require 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. (1 Bay) 382, 389 (1794). Six years later, a North

Carolina court explained that the same phrase in the

North Carolina constitution referred to the “ancient

mode” of a trial, in which a jury must contain 12 members. Whitehurst v. Davis, 3 N.C. 113, 113 (1800) (per

curiam). In the following years, the supreme courts of

Pennsylvania, Arkansas, and Georgia interpreted similar language in their constitutions to require 12-person

juries. See Emerick v. Harris, 1 Binn. 416, 426 (Pa. 1808)

(Pennsylvania) (Brackenridge, J., op.); Larillian v. Lane

& Co., 8 Ark. 372, 374-375 (1848) (Arkansas); Rouse v.

State, 4 Ga. 136, 147 (1848) (Georgia). State high court

decisions affirming the need for 12 jurors continued

throughout the remainder of the 19th century. See, e.g.,

Foote v. Lawrence, 1 Stew. 483, 483 (Ala. 1828) (Alabama); Work v. State, 2 Ohio St. 296, 304-305 (1853)

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

York); Vaughn v. Scade, 30 Mo. 600, 603-604 (1860) (Missouri); Opinion of Justices, 41 N.H. 550, 551 (1860) (New

Hampshire).

Scholars in the 18th and 19th centuries held the

same understanding of the Sixth Amendment right as

the state courts. An 18th-century treatise on jury trials

confirmed that a jury must “number twelve.”

1 Duncombe, Trials per Pais: Or, The Law of England

Concerning Juries by Nisi Prius, &c 92 (8th ed. 1766).

Justice Joseph Story’s Commentaries on the Constitution explained that “trial by jury is generally understood

to mean … a trial by a jury of twelve men, impartially

selected.” 2 Story & Cooley, Commentaries on the Constitution of the United States § 1779, at p.541 n.2 (4th ed.

1873). Other treatises from that era agreed, noting 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,”

1 Bishop, Commentaries on the Law of Criminal Procedure § 897, at p.546 (2d ed. 1872), and (2) “a trial by jury

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

twelve men,” Tiffany, A Treatise on Government and

Constitutional Law § 549, at p.367 (1867).

This Court, too, has repeatedly recognized that the

Sixth Amendment was understood at the time of the

founding to require a 12-member jury. In 1898, the

Court reversed a conviction by an eight-person jury in

the then-territory of Utah, explaining 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. A year later, the Court 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). And again in 1900, the

Court held that “[t]here can be no doubt” “[t]hat a jury

composed, as at common law, of twelve jurors was intended by the Sixth Amendment.” Maxwell v. Dow, 176

U.S. 581, 586 (1900). By 1930, this Court had concluded

that it was “not open to question” that “‘trial by jury’”

“means a trial by jury as understood and applied at

common law,” which required “[t]hat the jury should

consist of twelve men, neither more nor less.” Patton v.

United States, 281 U.S. 276, 288 (1930).

B. Factual And Procedural Background

1. Florida And Several Other States Permit

Small Juries To Try Felonies

Florida’s founding constitution provided that “the

right of trial by jury shall forever remain inviolate.” Fla.

Const. art. I, § 6 (1838). Following the defeat of the Confederacy and passage of the federal Reconstruction

Acts, Florida adopted a new constitution under the

watchful eye of federal troops, which similarly guaranteed that the “right of trial by jury shall be secured to all

and remain inviolate forever.” Fla. Const. art. I, § 3

(1868); see Florida’s Historic Constitutions, Florida

Memory: State Library and Archives of Florida,

https://www.floridamemory.com/discover/historical_records/constitution/ (visited Aug. 6, 2026). The

Florida Supreme Court later recognized that this constitutional provision “taken by itself, refers to a jury, according to the common law, to be composed of twelve

persons.” Gibson v. State, 16 Fla. 291, 300 (1877).

In 1875, Florida amended its constitution to provide

for the first time that the “‘number of jurors for the trial

of causes in any court may be fixed by law.’” Florida

Fertilizer & Mfg. Co. v. Boswell, 34 So. 241, 242 (Fla.

1903). And the month after federal troops left the State

in January 1877, Florida’s legislature passed a law stating that “twelve men shall constitute a jury to try all capital cases, and six men shall constitute a jury to try all

other offences.” Gibson, 16 Fla. at 297-298; Shofner, Reconstruction and Renewal, 1865-1877, in The History of

Florida 273 (Michael Gannon ed., 2018).

That change to Florida law did not happen in a vacuum. In the very same Act, the legislature reinstated an

“integrity, fair character, sound judgment and intelligence” test for jurors, Laws of Fla., ch. 3010 (1877)—a

standard then “used to eliminate almost every black citizen from the southern trial venire,” Colbert, Challenging the Challenge: Thirteenth Amendment as a Prohibition Against the Racial Use of Peremptory Challenges,

76 Cornell L. Rev. 1, 89-90 (1990). Black jury service

quickly became so rare that a Black person being seated

for a trial repeatedly made the newspaper. E.g., First

Two Women Are Picked for Possible Jury Duty in

County 1, Citrus Cnty. Chron. (Feb. 16, 1950) (noting

“the county’s first [Black] juror” had served “[l]ast fall”);

see also Pet. 23-25 (collecting similar articles from 1915,

1924, 1948, and 1952).

Today, Florida continues to follow the formula for

jury size charted in the post-Reconstruction era. The

current constitution, adopted in 1968, provides that

“[t]he right of trial by jury shall be secure to all and remain inviolate. The qualifications and the number of jurors, not fewer than six, shall be fixed by law.” Fla.

Const. art. I, § 22. Florida Statute § 913.10, in turn,

states that “[t]welve persons shall constitute a jury to

try all capital cases, and six persons shall constitute a

jury to try all other criminal cases.” Although this Court

upheld Florida’s six-person jury approach in Williams v.

Florida, 399 U.S. 78, 103 (1970), several Florida appellate judges have raised questions about the continuing

vitality of that ruling following Ramos. See, e.g., Guzman v. State, 350 So. 3d 72, 78 (Fla. Dist. Ct. App. 2022)

(Gross, J., concurring specially) (“Like Wile E. Coyote

momentarily suspended in midair after running off a

cliff, Williams hovers in the legal ether, waiting for further examination by the [U.S.] Supreme Court.”);

Phillips v. State, 316 So. 3d 779, 788 (Fla. Dist. Ct. App.

2021) (Makar, J., concurring) (“It seems a small step

from the demise of the reasoning in Apodaca and Johnson as announced in Ramos to conclude that the reasoning in Williams, upon which both decisions relied, is also

in jeopardy.”).

To Petitioner’s knowledge, just a handful of other

states also permit juries of fewer than 12 members when

the crime charged is a felony that could result in a significant term of imprisonment.4 Arizona permits eight-person juries except when “a sentence of death or imprisonment for thirty years or more is authorized.” Ariz. Rev.

Stat. § 21-102(A)-(B). Connecticut allows six-person juries unless the defendant is “charged with an offense

which is punishable by death, life imprisonment without

the possibility of release or life imprisonment.” Conn.

Gen. Stat. § 54-82(c). In Indiana, a six-person jury is permitted when a defendant is charged with a crime that is

not “murder or a Level 1, Level 2, Level 3, Level 4, or

Level 5 felony.” Ind. Code Ann. § 35-37-1-1(b); see id.

§ 35-50-2-7(b) (describing “Level 6 felony”). Massachusetts provides that criminal trials “in the Boston municipal court department and in the district court department,” Mass. Gen. Laws, ch. 218, § 26A—which have

Absent stipulation by the parties, the Federal Rules of Criminal Procedure generally require a “jury … of 12 persons.” Fed. R.

Crim. P. 23(b)(1). The only exception is that an 11-person jury may

return a verdict without the consent of the parties if, “[a]fter the

jury has retired to deliberate, … the court finds good cause to excuse a juror.” Id. 23(b)(3). This Court need not resolve the constitutionality of that provision in this case, as it involves “the procedures to be applied … when an emergency arises toward the end of

deliberations” rather than the number of jurors who must be sworn

at the outset. Cf. U.S. Brief in Opp. 16-17, Parada v. United States,

No. 25-166 (U.S. Dec. 2025).

limited jurisdiction, including over “felonies punishable

by imprisonment in the state prison for not more than

five-years,” id. § 26—“shall be by a jury of six persons,”

id. § 26A. Louisiana permits six-person juries for offenses where the crime charged “may” (but does not

“necessarily”) result in “confinement at hard labor or

confinement without hard labor for more than six

months.” La. Const. art. I, §17; cf. Duncan v. Louisiana,

391 U.S. 145, 146, 161-162 (1968). Finally, Utah permits

an eight-person jury for “noncapital first degree felony

aggravated murder or other criminal case which carries

a term of incarceration of more than one year as a possible sentence for the most serious offense charged.” Utah

Code Ann. § 78B-1-104(1)(b)-(c).

2. Mr. Kian Is Convicted Of Felonies By A

Six-Person Florida Jury

Mr. Kian was charged with five counts of practicing

chiropractic medicine with a suspended license, a thirddegree felony that is punishable by up to five years in

prison for each count. Fla. Stat. §§ 460.411(1)(b),

775.082(3)(e); see also Pet.App.3-4. He was convicted on

all counts by a six-person jury seated pursuant to Florida Statute § 913.10. Mr. Kian appealed his convictions,

arguing, inter alia, that the use of a six-person jury violated his rights under the Sixth and Fourteenth Amendments. Pet.App.5-11. The District Court of Appeal affirmed his convictions without a written opinion, depriving the Florida Supreme Court of jurisdiction to review

the decision. Pet.App.2; supra p.4. Mr. Kian timely filed

a petition for a writ of certiorari, which this Court

granted on June 15, 2026.

SUMMARY OF THE ARGUMENT

The Sixth Amendment’s “promise of a jury trial” is

“fundamental to the American scheme of justice.” Ramos v. Louisiana, 590 U.S. 83, 89, 93 (2020). The scope

of that right is controlled by “what the term ‘trial by an

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

Court and Florida acknowledge that the “jury at common law came to be fixed generally at 12” by the time of

the founding. Williams v. Florida, 399 U.S. 78, 89

(1970), cited in Opp. 8. Every relevant authority—English practice, colonial law, founding-era treatises, state

court decisions following ratification, and this Court’s

own precedents—confirms that general principle.

Under this Court’s decision in Ramos, the essentially undisputed historical record should be the end of

the inquiry. But even if Ramos did not change the legal

test to be applied, Williams’s reasoning regarding how

many members are needed to serve a jury’s essential

function simply has not stood the test of time. The reasoning did not even stand for a decade, as research

quickly revealed that smaller juries are less representative of the community and more likely to reach inconsistent outcomes that are disproportionately unfavorable to defendants. E.g., Ballew v. Georgia, 435 U.S. 223,

231-239 (1978).

Having effectively overruled Williams in Ramos,

this Court need not engage in the traditional stare decisis inquiry at all. Instead, it must only “formalize what

is evident in [Ramos] itself”—Williams retains no force

of law. Herrera v. Wyoming, 587 U.S. 329, 342 (2019).

Regardless, every factor this Court considers when

evaluating precedent favors overruling Williams. That

decision is egregiously wrong because of its conceded

inconsistency with the public meaning of the jury trial

right and because the empirical studies it relied upon in

determining the number of members needed to serve a

jury’s function were almost immediately undermined.

Williams has had significant negative consequences,

both in creating confusion in the case law and in permitting the use of six-member juries (which are less likely

to be representative and reliable than 12-member bodies). And overruling Williams affects limited reliance

interests (retrials of a finite number of pending cases),

which cannot outweigh the broader “reliance the American people place in their constitutionally protected liberties.” Ramos, 590 U.S. at 111 (plurality op.).

The Court should reverse the judgment below and

hold that a criminal defendant charged with a serious

crime must be tried by a 12-member jury.

ARGUMENT

THE SIXTH AND FOURTEENTH AMENDMENTS REQUIRE

DEFENDANTS CHARGED WITH SERIOUS CRIMES TO BE

TRIED BEFORE 12-MEMBER JURIES

A. Ramos Established That The Sixth Amendment’s Jury Trial Clause Is Defined By Its

Original Public Meaning

In Ramos, this Court concluded that the Sixth

Amendment requires a unanimous verdict to convict a

defendant of a serious crime by “determin[ing] what the

term ‘trial by an impartial jury’ meant at the time of the

Sixth Amendment’s adoption[.]” 590 U.S. 83, 90 (2020);

see also Edwards v. Vannoy, 593 U.S. 255, 266 (2021)

(agreeing with petitioner that Ramos “adhered to the

original meaning of the Sixth Amendment’s right to a

jury trial”).5 To assess that “original public meaning,”

the Court considered “the common law, state practices

in the founding era, [and] opinions and treatises written

soon afterward.” Ramos, 590 U.S. at 90, 92. All those

authorities pointed to the same result—the phrase “trial

by … jury” meant a unanimous jury at the time of the

Sixth Amendment’s enactment. Id. at 90.

Ramos also relied on this Court having “repeatedly

and over many years[] recognized that the Sixth Amendment requires unanimity.” 590 U.S. at 92 & nn.19-22 (citing inter alia 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 meaningfully “grappling with the historical

meaning of the Sixth Amendment’s jury trial right.” 590

While Ramos did not expressly define what constitutes a “serious crime” for its purposes, it appears to have used this term to

distinguish “petty offenses”—crimes for which there is no right to a

jury trial. Ramos, 590 U.S. at 88 & n.7; accord Vannoy, 593 U.S. at

262 & n.1. Here, the felony charges against Mr. Kian (which each

carried a sentence of up to five years in prison) do not fall under the

“petty offenses” doctrine, which applies to crimes where no “more

than six months” imprisonment is authorized. See Baldwin v. New

York, 399 U.S. 66, 69 (1970). Indeed, Florida agrees that this case

squarely presents the question of whether “the Sixth Amendment

requires the use of 12-person juries in serious criminal cases.” Opp.

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 (emphasis in original). 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 of the Court accordingly held that Apodaca’s logic was indefensible and not entitled to the protection of stare decisis. See Ramos, 590 U.S. at 105-106;

id. at 115 (Sotomayor, J., concurring) (Apodaca “is

rightly[] relegated to the dustbin of history[.]”); id. at

124 (Kavanaugh, J., concurring in part) (“I agree with

the Court’s decision to overrule Apodaca.”); see also id.

at 139 (Thomas, J., concurring in the judgment) (taking

the position that 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). Instead, the Court held

that the original public meaning of the Sixth Amendment controlled. Id. at 100 (majority op.).

B. The Original Public Meaning Of “Trial By An

Impartial Jury” Requires A 12-Member Jury

For Serious Crimes

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”

referred to a 12-person jury at the time the Sixth

Amendment was enacted. Ramos, 590 U.S. at 90; see

also ABA, Principles for Juries and Jury Trials, Principle 3 cmt., at pp.25, 27 (rev. 2023) (“colonial and federal

constitutional considerations [as well as] long historical

experience” support requiring a “twelve-person jury in

all non-petty criminal cases”).

As explained, the 12-member requirement has a

long history that dates back nearly a millennium, such

that by 1769, Blackstone could assert without equivocation 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 & n.10

(quoting 4 Blackstone, Commentaries on the Laws of

England 343 (1769)). As a result, a “‘verdict, taken from

eleven, was no verdict’ at all.” Id. at 90 & n.11 (quoting

Thayer, A Preliminary Treatise on Evidence at the

Common Law 88-89 n.4 (1898)). This history leaves “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 586.6

State practices from the same period confirm that

understanding. At least five States had laws expressly

requiring 12-person juries at the time the Constitution

was ratified. Supra p.7. In the first decades after the

Sixth Amendment was enacted, a bevy of state courts

interpreted the term “trial by jury” to require a 126

Maxwell, along with several other of this Court’s pre-1970

decisions concerning the contours of a jury trial, were abrogated by

the Court’s decision in Williams v. Florida, 399 U.S. 78 (1970). As

discussed below, however, Williams was effectively overruled by

Ramos and—if for some reason it was not—it should be now. See

infra pp. 24-38.

person jury, see, e.g., Miller, 146 U. Pa. L. Rev. at 643 &

n.133 (collecting cases), including the supreme courts of

both Carolinas, Pennsylvania, Alabama, and Georgia,

supra p.9.

State courts repeatedly held that 12-member juries

were required under the common law or state constitutional provisions analogous to the Sixth Amendment

throughout the rest of the 19th Century. For example:

•

The Ohio Supreme Court wrote in 1853 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, 301, 304305 (1853).

•

The New York Court of Appeals warned in 1858 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 and

laws establishing and securing that mode of trial[.]”

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

•

The Supreme Court of Missouri held in 1860 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,

603-604 (1860).

•

Also in 1860, the Supreme Court of New Hampshire

ruled that its state’s legislature could not allow for

juries of fewer than 12 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, 550551 (1860).

Numerous scholars in the 18th and 19th centuries

came to the same conclusion. James Wilson—considered

by some “the second most important framer of the Constitution,” Mosvick, Forgotten Founders: James Wilson,

craftsman of the Constitution, The National Constitution Center (July 13, 2020)—explained shortly after the

Sixth Amendment was drafted that “[t]o the conviction

of a crime, the undoubting and the unanimous sentiment

of the twelve jurors is of indispensable necessity,” 2 Wilson, The Works of the Honourable James Wilson 350

(Bird Wilson ed., Philadelphia, Bronson & Chauncey

1804) (emphasis added).7 That view was echoed by

Story’s Commentaries, which explained that “trial by

jury is generally understood to mean … a trial by a jury

of twelve men, impartially selected[.]” 2 Story & Cooley,

Commentaries on the Constitution of the United States

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

that era agreed: “From time immemorial a jury of trials

has consisted of twelve men. And it is a point upon which

the authorities agree, that, within the meaning of our

constitutional provisions, a jury of less than twelve men

is not a jury[.]” 1 Bishop, Commentaries on the Law of

Criminal Procedure § 897, at pp.545-546 (2d ed. 1872).

When Wilson also remarked that he felt “no peculiar predilection for the number twelve,” he appears to have been taking the

position that a petit jury could conceivably be larger than twelve—

not smaller. 2 Wilson, The Works of the Honourable James Wilson

304 (“[A] grand jury consists of more, and its number is not precisely fixed.”).

This Court, too, has “repeatedly and over many

years,” Ramos, 590 U.S. at 92, acknowledged that the

Sixth Amendment calls for a 12-member jury—and in

many of the same cases that Ramos relied upon to show

the consensus over the unanimous jury requirement.

For example, the Court addressed the 12-person requirement in 1898 when it overturned a conviction 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. Foreshadowing Ramos, Thompson reached this conclusion by relying 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 the 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 12-person requirement. It held 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). Then this Court

wrote that “[t]here 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, and

later reaffirmed Thompson’s conclusion 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).

Soon, 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. Williams itself agreed

that “the size of the jury at common law came to be fixed

generally at 12” centuries before the Sixth Amendment

was drafted. 399 U.S. at 89-90. And following Williams,

this Court has repeated that same basic observation as

historical fact time and again. E.g., United States v.

Gaudin, 515 U.S. 506, 510 (1995) (citing Blackstone and

Story regarding jury size); Apprendi v. New Jersey, 530

U.S. 466, 477 (2000) (citing Blackstone); Southern Union

Co. v. United States, 567 U.S. 343, 356 (2012) (citing

Blackstone). As recently as two terms ago, this Court

emphasized that “[f]rom the start,” the Sixth Amendment required that “the truth of every accusation

against a defendant had to be confirmed by the unanimous suffrage of twelve of [his] equals and neighbours.”

Erlinger v. United States, 602 U.S. 821, 831 (2024) (quotation marks omitted, second alteration in original).

***

Whatever historical measure is used, the answer is

the same. The original public meaning of the term “trial

by an impartial jury” required a 12-member jury. And

because “the right to trial by jury should mean no less

today, and afford no fewer protections for individual liberty, than it did at the Nation’s founding,” the Court

should hold that the Sixth Amendment requires 12-person juries. Cunningham v. Florida, 144 S. Ct. 1287, 1288

(2024) (Gorsuch, J., dissenting from denial of certiorari).

C. The Sixth Amendment’s 12-Member Jury Requirement Applies To The States, Including

Florida

Because the original public meaning of the jury-trial

right at the founding required 12-person juries, the

Sixth Amendment carries that understanding forward

to the present day. See supra pp.16-23. The Fourteenth

Amendment, in turn, requires that the Sixth Amendment’s jury trial right “appl[y] to state and federal criminal trials equally.” Ramos, 590 U.S. at 93. That is so

regardless of whether the right is guaranteed by the

Amendment’s Due Process Clause, id., or its Privileges

or Immunities Clause, id. at 137-140 (Thomas, J., concurring in the judgment).8 Accordingly, the felony charges

brought against Mr. Kian under Florida law should have

entitled him to the full sweep of Sixth Amendment protections, including a 12-member jury. The contrary decision of the Florida District Court of Appeal should be

reversed.

II. TO THE EXTENT THIS COURT HAS NOT ALREADY OVERRULED WILLIAMS, IT SHOULD DO SO NOW

A. Ramos Effectively Overruled Williams

This Court’s decision in Ramos “repudiated the reasoning on which” the Court 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 a prior decision); Western & Southern Life

Ins. Co. v. State Bd. of Equalization of Cal., 451 U.S.

648, 664 n.16 (1981) (similar). As a result, the Court need

not address the traditional stare decisis factors to hold

Relying on the Slaughter-House cases, Maxwell held that the

right to a 12-member jury was not among the privileges or immunities protected against state infringement by the Fourteenth

Amendment. 176 U.S. at 600-602. For the reasons explained in Justice Thomas’s opinion in Ramos, that conclusion was “demonstrably

erroneous” and poses no barrier to resolving this case under the

Privileges or Immunities Clause. 590 U.S. at 137-138 (Thomas, J.,

concurring in the judgment).

that the Sixth Amendment requires 12-person juries for

defendants like Mr. Kian. It is enough to say that “[t]ime

and subsequent cases have washed away the logic” of

Williams. Hurst v. Florida, 577 U.S. 92, 102 (2016).

Williams cannot be reconciled with Ramos’s holding

that the scope of the Sixth Amendment’s jury trial right

is determined by its original public meaning. The Williams Court admitted 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. Instead, the Court focused on the “function” the jury plays in the Constitution. Id. at 100-101.

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. at 100. Relying on this understanding of the jury right, 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 12. Id. at 101-102 & nn.48-49.

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 the light of its history.”

Baldwin v. New York, 399 U.S. 117, 122-124 (1970) (Harlan, J., concurring in the result in Williams). The Court

did not dispute that characterization, and three times

during that same decade, it 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

407-408 (plurality op.) (“[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.”).

Williams’s choice to discard the original public

meaning of the Sixth Amendment deprives the decision

of any ongoing “‘vitality,’” Herrera, 587 U.S. at 342, now

that Ramos is the law of the land. 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 the North Star for its reasoning. Apodaca,

406 U.S. at 406-414 (plurality op.); 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 11 times, including to (1)

“cast[] … doubt on the … assumption … that if a given

feature existed in a jury at common law in 1789, then it

was necessarily preserved in the Constitution[,]” (2) conclude 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) hold 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 408-410 (quoting Williams, 399 U.S. at

92-93, 96-97, 99-100). Ramos rejected precisely this Williams-inspired reasoning as an improperly “muddy

yardstick” for safeguarding “the right to trial by jury”

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, necessarily overruled Williams as well.

And because “Ramos is the law,” it should be “give[n] …

all the consequence it deserves.” Id. 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.”). “‘[S]tare decisis

does not compel adherence to a decision,’” like Williams,

“‘whose “underpinnings” have been “eroded” by subsequent developments of constitutional law.’” Hurst, 577

U.S. at 102.

B. If Williams Remains Good Law, The Court

Should Formally Overrule It

‘‘The force of stare decisis is at its nadir in cases,’’

like this one, ‘‘concerning procedural rules that implicate

fundamental constitutional protections.’’ Alleyne v.

United States, 570 U.S. 99, 116 n.5 (2013). Because this

Court’s interpretation of the Constitution ‘‘can be altered only 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.

Subject to those principles, this Court’s stare decisis

analysis considers a variety of 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

121-122 (Kavanaugh, J., concurring in part); see also

Franchise Tax Bd. of Cal. v. Hyatt, 587 U.S. 230, 248249 (2019) (laying out similar factors). Each consideration indicates that Williams should be overruled—just

as in Alleyne, an earlier decision (Williams) ‘‘is irreconcilable with the reasoning of’’ a later decision (Ramos)

‘‘and the original meaning of the Sixth Amendment.’’ Alleyne, 570 U.S. at 116 n.5. So this Court should ‘‘follow

the latter.’’ Id.

Williams, moreover, is a singular “anomaly” in this

Court’s case law, Khorrami v. Arizona, 143 S. Ct. 22, 24

(2022) (Gorsuch, J., dissenting from denial of certiorari),

with a unique, close link to Apodaca, see supra p.26.

Even the Ramos dissenters acknowledged that a notable effect of “[r]epudiating the reasoning of Apodaca”

would be to “prompt calls to overrule Williams.” 590

U.S. at 158 (Alito, J., dissenting). Accordingly, there is

no reason that a narrow ruling in this case must have the

wide-ranging impact on the Sixth Amendment—or

other constitutional doctrines—that Florida threatens.

See, e.g., Opp. 8-9, 12-13. To the extent, for example, that

Florida believes overruling Williams will lead to juries

limited to “male landowners hailing from a particular

county,” Opp. 8-9, this Court has already rejected precisely this attack on Ramos’s history-based test, explaining that “further constitutional amendments …

prohibit [such] invidious discrimination.” See Ramos,

590 U.S. at 100 n.47.

1. Williams Is Egregiously Wrong

a. Williams Conflicts With The Original

Public Meaning Of The Sixth Amendment’s Jury Trial Right

Williams is flawed for the same reason Apodaca

was. See supra pp.17-18. The Williams Court spent relatively little time “grappling with the historical meaning

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

Court’s long-repeated statements” about the number of

required jurors, and instead “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 121-123 (Kavanaugh, J., concurring in part).

At the date of its issuance, Williams (like Apodaca)

was “already an outlier in the Court’s jurisprudence,”

Ramos, 590 U.S. at 125 (Kavanaugh, J., concurring in

part), given its inconsistency 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. See supra pp.511, 18-23. In 1900—70 years before Williams was decided—this Court had 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 of Williams, three other decisions from this

Court recognized that it had departed from the traditional historical understanding of the jury trial right.

See supra pp.25-26.

Williams’s reasoning and holding have also been fatally undercut by Ramos. Supra pp.24-27. As one additional example, Williams “sought to sidestep any serious inquiry into the ‘intent of the Framers” of the Sixth

Amendment,” Khorrami, 143 S. Ct. at 25 (Gorsuch, J.,

dissenting from certiorari), by focusing on the Senate’s

choice 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 of

challenge, and other accustomed requisites,” Williams,

399 U.S. at 94 & n.36 (quoting 1 Annals of Cong. 435

(1789)) cited in Opp. 9. 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 requirement of including 12 members. Id. at 95-97. Ramos, however, explicitly rejected

the same basic argument when considering unanimity.

As the Court explained, that “snippet of drafting history

could just as easily support the opposite inference” that

the language was deleted because it was “so plainly included in the promise of a ‘trial by an impartial jury.’”

Ramos, 590 U.S. at 97-98. “So rather than dwelling on

text left on the cutting room floor,” as Williams did in

its brief foray into historical research, Ramos held that

“we are much better served by interpreting the language Congress retained and the States ratified.” Id. at

98. There, as with unanimity, “the right to a jury trial

meant a trial in which the jury” consists of 12 people. Id.

b. Williams’s Functionalist Reasoning Is

Wrong On Its Own Terms

Even if Williams were right to consider the function

of a jury, it was wrong to conclude that a six-member

jury can serve that function as well as a 12-member jury.

Numerous studies have established that a six-person

jury is less representative, less consistent, and more

likely to rule against a criminal defendant than a jury of

12.

The Williams Court conducted its functionalist

analysis in part by considering the “currently available

evidence” about the impact of jury size. 399 U.S. at 100101 & nn.48-49. These “few experiments … usually in

the civil area” led the Court to “find 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 100-101. The Court theorized that “in practice the difference between the 12man and the six-man jury in terms of the cross-section

of the community represented seems likely to be negligible.” Id. at 102. Even “[b]efore the ink dried on the

decision,” however, “scholars began criticizing Williams

for overreading the handful of studies it cited to support

its tepid assertion that 6-member panels would ‘probably’ operate as well as 12-member juries.” Khorrami,

143 S. Ct. at 26 (Gorsuch, J., dissenting from denial of

certiorari) (citing Zeisel, …And Then There Were None:

The Diminution of the Federal Jury, 38 U. Chi. L. Rev.

710, 712-715 (1971)).

Within less than a decade, Williams had generated

a cottage industry in “scholarly work on jury size.”

Ballew, 435 U.S. at 231. Ballew, which held that the

Sixth Amendment barred the use of a five-person jury,

concluded that the 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, disproportionately 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 236-237. Moreover, the Ballew Court “readily 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 245-246 (Powell, J., concurring) (observing that “the

line between five- and six- member juries is difficult to

justify”). Although Ballew declined to overrule Williams outright, the bench, bar, and scholars have all recognized that it called into question the strength of Williams’s reasoning. As the American Bar Association explained, 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 of Juries and Jury

Trials, Principle 3 cmt., at p.24.9

See also State v. Hamm, 423 N.W.2d 379, 382 n.2 (Minn. 1988)

(noting that Ballew’s “acknowledge[ment] [of] the substantial

threat to the right to a jury trial posed by smaller juries” makes “an

excellent argument that could be used to support a 12-person jury”

and “declin[ing] to follow” Williams when interpreting state constitution); Opinion of Justices, 431 A.2d 135, 136 (N.H. 1981) (“Although … Ballew expressed these concerns [regarding decreases in

jury size] in the context of a decision regarding a further reduction

of criminal trial juries from six to five, we note that these problems

may also arise in the context of reducing the size of juries in civil

cases from twelve to six.”); Smith & Saks, The Case for Overturning

Williams v. Florida and the Six-Person Jury: History, Law, and

Empirical Evidence, 60 Fla. L. Rev. 441, 441 (2008) (arguing that

Ballew rendered Williams “a dead letter” because “the [Ballew]

Court implicitly abandoned” Williams’s functionalist reasoning);

Frampton, Comment, The Uneven Bulwark: How (And Why)

Criminal Jury Trial Rates Vary By State, 100 Cal. L. Rev. 183, 218

(2012) (“When the Court declined to extend Williams in 1978 … it

persuasively articulated many of the reasons why juries with less

Research after Ballew has further undermined Williams’s view that a small jury can provide a representative cross-section of the community. The current 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, 426-427 (2009)

(noting that the “change most likely to promote diversity on the jury is a return to the jury of 12”); see also

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

the Twelve-Person Civil Jury, 104 Judicature 47, 52

(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, 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; see also Anwar et

al., The Impact of Jury Race in Criminal Trials, 127 Q.J.

Econ. 1017, 1049 (2012) (“[I]ncreasing the number of jurors on the seated jury would … increase black representation in the jury pool and on seated juries, and make

trial outcomes more equal for white and black defendants.”).

than twelve jurors significantly disadvantage criminal defendants.”); Higginbotham et al., Better by the Dozen, 104 Judicature 46,

49 n.32 (2020) (“[I]n what reads like a de facto mea culpa, the Court’s

opinion in Ballew v. Georgia includes a lengthy discussion of the social science demonstrating the benefits of larger juries.”).

Other important considerations also weigh in favor

of the 12-member jury. For instance, studies indicate

that 12-member juries deliberate longer, recall evidence

better, and are less likely to rely on irrelevant factors

during deliberation. See Smith & Saks, The Case for

Overturning Williams v. Florida and the Six-Person

Jury: History, Law, and Empirical Evidence, 60 Fla. L.

Rev. 441, 465 (2008); Saks & Marti, A Meta-Analysis of

the Effects of Jury Size, 21 Law & Hum. Behav. 451, 458459 (1997). Minority views are more likely to be considered in a larger jury, as “having a large minority helps

make the minority sub-group more influential,” and, unsurprisingly, “the chance of minority members having

allies is greater on a twelve-person jury.” Smith & Saks,

60 Fla. L. Rev. at 466.

Ultimately, whether Williams’s reasoning is analyzed under the historical test laid out in Ramos or under Williams’s own functionalist test, it is egregiously

wrong.

2. Williams Has Caused Significant Negative Jurisprudential And Real-World

Consequences

Decisions following Williams have illustrated the

jurisprudential difficulties it created. In Ballew, for example, a split Court struggled to apply the functionalist

approach, with multiple members acknowledging that

the line being drawn between five- and six-member juries had little foundation in law or fact. See supra pp.3132. And, of course, this Court rejected the Williams approach in Ramos. See supra pp.24-27.

Moreover, the Williams Court’s conclusion that a

six-member jury is no different than a 12-member jury

has “caused significant negative … real-world consequences.” Ramos, 590 U.S. at 122 (Kavanaugh, J.,

concurring in part). As noted above, juries of fewer than

12 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 12-member juries. See supra pp.30-34. Williams

thus permits “the conviction at trial or by guilty plea of

some defendants who might not be convicted under the

proper constitutional rule,” Ramos, 590 U.S. at 126 (Kavanaugh, J., concurring in part)—increasing the “risk of

convicting an innocent person,” Brown v. Louisiana, 447

U.S. 323, 332 (1980) (plurality op.); accord Ballew, 435

U.S. at 234 (“Statistical studies suggest that the risk of

convicting an innocent person … rises as the size of the

jury diminishes.”). That drastic “consequence has traditionally supplied some support for overruling an egregiously wrong criminal-procedure precedent.” Ramos,

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 cases involving serious crimes 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 system and 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) (quotation

marks omitted). The Williams rule increases the odds

that in the States that continue to permit juries of fewer

than 12, the jury will not include a true cross-section of

the community—and that the members who belong to a

racial, religious, or cultural minority will be given fewer

opportunities 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, 515-516 (1974) (quotation marks

omitted). In this way, Williams is also an outlier—other

seminal decisions have made it more likely that the “jury

[will be] selected from a representative cross section of

the entire community.” Ramos, 590 U.S. at 100 n.47; see

also, e.g., Taylor, 419 U.S. at 527, 531 (noting that “[t]o

exclude racial groups from jury service [is] … ‘at war

with our basic concepts of a democratic society and a representative government’” and that “the fair-cross-section requirement is violated by the systematic exclusion

of women”).

These effects are unsurprising given that “[d]uring

the Jim Crow era, some States restricted the size of juries and abandoned the demand for a unanimous verdict

as part of a deliberate and systematic effort to suppress

minority voices in public affairs.” Khorrami, 143 S. Ct.

at 27 (Gorsuch, J., dissenting from denial of certiorari).

South Carolina, for example, adopted smaller juries specifically for cases “wherein the accused is a person of

color” immediately after the Civil War. S.C. Const. art.

III, § 1 (1865); 1866 S.C. Sess. Laws 493, § 3. Louisiana’s

1898 Constitution established that “[c]ases in which the

punishment may be at hard labor shall be tried by a jury

of five.” La. Const. art. 116 (1898). As this Court noted,

Louisiana’s 1898 constitutional convention was convened to “establish the supremacy of the white race,”

Ramos, 590 U.S. at 87 & n.1 (citing Official Journal of

the Proceedings of the Constitutional Convention of the

State of Louisiana 374 (H. Hearsey ed. 1898)), and the

five-person jury provision was part of the same

constitution that included “a poll tax, a combined literacy

and property ownership test, and a grandfather clause

that in practice exempted white residents from the most

onerous of these requirements,” id. at 87. Florida’s own

six-person jury law can similarly be traced back to the

post-Reconstruction era, where it was implemented

(within weeks of Federal troops leaving) together with

a discriminatory test for jury service. Supra pp.11-12.

Although other States have asserted interests in

cost-savings or other efficiencies to justify smaller juries, “the reality that smaller panels tend to skew jury

composition and impair the right to a fair trial is” a “sad

truth borne out by hard experience.” Khorrami, 143 S.

Ct. at 27 (Gorsuch, J., dissenting from denial of certiorari). Moreover, research has disproven the theory that

smaller juries have significant cost and efficiency benefits. ABA, Principles for Juries and Jury Trials, Principle 3 cmt., at pp.26-27. At best, “six-person juries are

only minimally more efficient or cheaper than twelveperson juries” and “[o]verall, little court time is saved by

reducing jury size.” Id.

3. Any Reliance On Williams Is Outweighed

By The Importance Of The Sixth Amendment Jury Trial 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.” Ramos, 590 U.S. at 107. Nor can

anyone reasonably argue that juries with fewer than 12

members “have ‘become part of our national culture,’”

id. at 107-108, as the vast majority of states and federal

court require that a 12-member jury to be empaneled in

felony cases involving significant terms of imprisonment, see supra p.13. While States that permit smaller

juries in serious criminal cases may well have to hold a

new trial in some cases that are pending on direct appeal,

“new rules of criminal procedures … often affect[] significant numbers of pending cases across the … country.” Ramos, 590 U.S. 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

110-111 (plurality op.). That States might have “to retry

a slice of their prior criminal cases … cannot outweigh”

that broader liberty interest “we all share.” Id.; accord

id. at 129-130 (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”). There does not appear to be

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

right forever.” Ramos, 590 U.S. at 111 (plurality op.).

This case should certainly 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 &

n.23 (quoting Duncan, 391 U.S. at 149). “Madison himself described protections for the jury trial right as

among ‘the most valuable’ that appear in ‘the whole list’

of amendments he produced.” Erlinger, 602 U.S. at 830

(quoting 1 Annals of Cong. 755 (1789)). That right is diminished by the continuing use of juries smaller than

12—a phenomenon the Framers would not have recognized—since a “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.

CONCLUSION

The judgment below should be reversed.

Respectfully submitted.

DANIEL EISINGER

SETH P. WAXMAN

Public Defender

Counsel of Record

PAUL EDWARD PETILLO

WILMER CUTLER PICKERING

BENJAMIN EISENBERG

HALE AND DORR LLP

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2100 Pennsylvania Ave. NW

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Washington, DC 20037

OFFICE OF THE PUBLIC

(202) 663-6000

DEFENDER

seth.waxman@wilmerhale.com

FIFTEENTH JUDICIAL

ALEX W. MILLER

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AUGUST 2026

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