Amicus Curiae Brief — Hamed Kian, Petitioner v. Florida

No. 25-6623

In the

Supreme Court of the United States

HAMED KIAN,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

On Writ of Certiorari to the Florida District Court

of A ppeal , Fourth District

BRIEF OF HUMAN RIGHTS FOR KIDS AS AMICUS

CURIAE IN SUPPORT OF PETITIONER

James Dold

Counsel of Record

Teresa Kominos

Suzanne La Pierre

Human Rights for Kids

P.O. Box 5960

Washington, DC 20016

(202) 573-7758

jdold@humanrightsforkids.org

Attorneys for Amicus Curiae

August 13, 2026

121219

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

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

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . iv

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

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 1

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

I.

C H I L D R E N A R E U N FA I R L Y

T R E AT ED A N D DI S PROP OR T IONAT ELY H A R M ED B Y T H E

USE OF J U RIES W I T H LES S

THAN TWELVE MEMBERS . . . . . . . . . . . . . . 3

A. CHILDREN SUFFER DISPARATE

HARM WHEN DENIED

T H E RIGH T T O A T W ELV E MEMBER J URY UNDER THE

SIXTH AMENDMENT . . . . . . . . . . . . . . . . 6

B. DISPARATE RACIAL IMPACT ON

CHILDREN PROSECUTED A S

ADULTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

II. T H E T W E LV E - M E M BE R J U R Y

I S F U N DA M EN TA L T O T H E

AMERICAN SCHEME OF JUSTICE

A N D S A F EGUA R D S AG A I NS T

WRONGFUL CONVICTIONS . . . . . . . . . . . . . 16

ii

Table of Contents

Page

A. THE FOUNDERS UNDERSTOOD

THAT THE SIXTH AMENDMENT

R IGH T T O A T R I A L BY A N

IMPARTIAL JURY REQUIRED

TWELVE MEMBERS . . . . . . . . . . . . . . . . 16

B. EMPIRICAL RESEARCH DEMONS T R A T E S T H A T T W E LV E M EM BER J U RIES PRODUCE

MORE ACCURATE A ND

RELIABLE OUTCOMES . . . . . . . . . . . . . 20

C. UNANIMOUS TWELVE-MEMBER

J U RI E S A R E I N T ERWOV EN

W I T H T H E “ PR E SU M P T ION

OF I N NO CENCE ” A N D T H E

“ B E Y O N D A R E A S O N A BL E

D O U B T ” S T A N DA R D T H A T

SA FEGUA RD THE FA IRNESS

AND

ACCURACY

OF

CRIMINAL JURY TRIALS . . . . . . . . . . . 23

D. T H E C OU R T ’ S R E A S ON I NG

IN RAMOS REQUIRES

OV ERT U RN I NG WILLIA MS

A N D R E T U R N I NG T O T H E

ORIGINA L UNDERSTA NDING

OF T HE J U RY TRI A L A S

REQUIRING TWELVE MEMBERS

IN CRIMINAL CASES . . . . . . . . . . . . . . . 29

iii

Table of Contents

Page

E. FLORIDA’S FAILURE TO USE

TWELVE-MEMBER JURIES IN

SERIOUS CRI M I NA L CA SE S

I S S T RUC T U R A L ER ROR

R EQU IRI NG AU T OM AT IC

REVERSAL . . . . . . . . . . . . . . . . . . . . . . . . . 32

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

iv

TABLE OF CITED AUTHORITIES

Page

CASES

Apprendi v. New Jersey,

530 U.S. 466 (2000) . . . . . . . . . . . . . . . . . . . . . . . . 17, 34

Arizona v. Fulminate,

499 U.S. 299 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . 2, 32

Atkins v. State,

930 So.2d 678 (Fla. App. 2006) . . . . . . . . . . . . . . . . . 27

Ballew v. Georgia,

435 U.S. 223 (1978) . . . . . . . . . . . . . . . . . . 20, 21, 22, 28

Capital Traction Co. v. Hof,

174 U.S. 1 (1899) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Chavers v. State,

359 So.3d 846 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Commonwealth v. Muckle,

90 Mass. App. Ct. 384 (Mass. App. 2016) . . . . . . . . . . 9

Cunningham v. Florida,

144 S Ct 1287 (2024) . . . . . . . . . . . . . . . . . . . . 29, 31, 34

Duncan v. Louisiana,

391 U.S. 145 (1968) . . . . . . . . . . . . . . . . . . . . . . . . 17, 19

Edwards v. Vannoy,

593 U.S. 255 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

v

Cited Authorities

Page

Fucci v. State,

420 So.3d 523 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Graham v Florida,

560 U.S. 48 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Hallowell v. State,

336 So. 3d 282 (Fla. 5th DCA 2022) . . . . . . . . . . . . . . 1

Hibdon v. United States,

204 F.2d 834 (6th Cir. 1953) . . . . . . . . . . . . . . . . . . . . 25

In re Gault,

387 U.S. 1 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4

In re Winship,

397 U.S. 358 (1970) . . . . . . . . . . . . . . . . . . . . . 23, 24, 25

J.D.B. v. North Carolina,

564 U.S. 261 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4

Khorrami v. Arizona,

143 S. Ct. 22 (2022) . . . . . . . . . . . . . . . . . . . . . . . . 17, 31

Maxwell v. Dow,

176 U.S. 581 (1900) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Miller v. Alabama,

567 U.S. 460 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . 3, 17

vi

Cited Authorities

Page

Neder v. United States,

527 U.S. 1 (1999) . . . . . . . . . . . . . . . . . . . . . . . 32, 33, 34

Patton v. United States,

281 U.S. 276 (1930) . . . . . . . . . . . . . . . . . . . . . . . . 19, 29

Ramos v. Louisiana,

140 S. Ct. 1390 (2020) . . . . . . . . . . . . . . . . . . . . 2, 23, 25

Rassmussen v. United States,

197 U.S. 516 (1905) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Roper v. Simmons,

543 U.S. 551 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . 3, 11

State v. Griffith,

561 So.2d 528 (Fla. 1990) . . . . . . . . . . . . . . . . . . . . . . 11

State v. Hallowell,

No. 2019-CF-001099-A

(Fla. Cir. Ct. Citrus Cnty.) . . . . . . . . . . . . . . . . . . . . . . 1

State v. Hogan,

451 So.2d 844 (1984) . . . . . . . . . . . . . . . . . . . . . . . . 1, 10

State v. James,

30 Utah 2d 32 (1973) . . . . . . . . . . . . . . . . . . . . . . . 12, 13

Tumey v. Ohio,

273 U.S. 510 (1927) . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

vii

Cited Authorities

Page

Thompson v Oklahoma,

487 U.S. 815 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Thompson v. Utah,

170 U.S. 343 (1898) . . . . . . . . . . . . . . . . . . . . . . . . 19, 29

Walling v. State,

105 So.3d 660 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Weaver v. Massachusetts,

582 U.S. 286 (2017) . . . . . . . . . . . . . . . . . . . . . . . . 32, 33

Williams v. Florida,

399 U.S. 78 (1970) . . . . . 2, 17, 19, 20, 25, 29, 30, 31, 35

U.S. CONSTITUTION

Amend. VI . . . . . 2, 4, 6, 16, 17, 19, 20, 23, 27, 29-31, 33-35

STATUTES

A.R.S. § 21-102 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 26

Conn. Gen. Stat. § 54-82 . . . . . . . . . . . . . . . . . . . . . . . 7, 26

FL. R. Crim. P. 3.270 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Fla. Stat. § 913.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

G. L. c. 218, § 26A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

viii

Cited Authorities

Page

Ind. Code § 35-37-1-1 (2025) . . . . . . . . . . . . . . . . . . . . 8, 26

Ind. Code § 31-30-3-6 (2025) . . . . . . . . . . . . . . . . . . . . . . . 8

La. Ch. Code art. 804(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . 8

La. Const. art. I, § 17(A) . . . . . . . . . . . . . . . . . . . . . . . 9, 26

La. Code Crim. Proc. art. 782(A) . . . . . . . . . . . . . . . . 9, 26

Mass. Gen. Laws ch. 212, § 6 . . . . . . . . . . . . . . . . . . . . . . . 9

Mass. Gen. Laws ch. 218, § 19B . . . . . . . . . . . . . . . . . . . 26

Utah Code § 76-5-202 . . . . . . . . . . . . . . . . . . . . . . . . 13, 26

OTHER AUTHORITIES

ABA Principles for Juries and Jury Trials,

Principle 3 & cmt. (2005) . . . . . . . . . . . . . . . . . . . . . . 23

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

History of the Criminal Jury in the United

States, 61 U. Chi. L. Rev. 867 (1994) . . . . . . . . . . . . . 34

Albrecht, Data Transparency & The Disparate

Impact of the Felony Murder Rule, Duke

Ctr. For Firearms Law (Aug. 11, 2020) . . . . . . . . . . 16

Brief for the State of Oregon as Amicus Curiae

Supporting Respondent, Ramos v. Louisiana,

590 U.S. 83 (2020) (No. 18-5924) . . . . . . . 29-31, 34, 35

ix

Cited Authorities

Page

Brief in Opposition, Kian v. Florida, No. 25-6623

(U.S.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Charles Puzzanchera et al., National Center

for Juvenile Justice, Youth younger than

18 prosecuted in criminal court: National

estimate, 2019 cases (https://ncjj.org/pdf/

NCJJ_Transfer_estimate_2019.pdf) . . . . . . . . . . . . . 4

Florida Department of Corrections, All Offenses

Committed Prior to 18 th Birthday (July 8,

2 0 2 6) (unpublished repor t prepa red in

response to a data request) . . . . . . . . . . . . . . . . . 11, 12

Higg inbotham, P. E. et al., Better by the

Dozen: Bringing Back the Twelve-Person

Civil Jury, 104 Judicature 47 (2020) . . . . . . . . . . . . . 22

Horowitz, I. A., & Bordens, K. S., The Effects

of Jury Size, Evidence Complexity, and

No t e Ta k i n g o n Ju r y P r o c e s s a n d

Performance in a Civil Trial (2002) . . . . . . . . . . . . 21

Human Rights for K ids, Cr imes Against

Humanity: The Mass Incarceration of Children

in the United States, 9 (2023) . . . . . . . . . . . 5-10, 12-14

Human Rights for Kids, Survey of People Incarcerated for Crimes Committed as Children

(J u l y 2 , 2 0 2 6 ) (u n p u b l i s h e d s u r v e y

prepared for Kian v. Florida, No. 123-456

(U.S. Supreme Court)) . . . . . . . . . . . . . . . . . . . 8, 11, 14

x

Cited Authorities

Page

J. DiIulio, The Coming of the Super-Predators,

The Weekly Standard (November 27, 1995) . . . . . . . 5

John J. DiIulio, Jr., Rethinking Crime—Again,

Democracy Journal, Spring 2010 . . . . . . . . . . . . . . . . 5

J. Story, Commentaries on the Constitution

of the United States §777 (1833) . . . . . . . . . . . . . . . . 23

Michael J. Saks & Mollie Weighner Marti, A

Meta-Analysis of the Effects of Jury Size,

21 Law & Hum. Behav. 451 (1997) . . . . . . . . . . . . 2, 21

Moore & Panken, Jury Size: Less Is Not More,

Cornell U.L., Social Science and Law (2010) . . . . . . 26

Nagel, S. & Neef, M., Deductive Modeling to

Deter mine an Optimum Jur y Size and

Fraction Required to Convict, 1975 Wash. U.

L.Q. 933 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Nat ’l Reg ist r y of Exonerations,

ht t p s : //e x o n e r a t i o n r e g i s t r y. o r g

(last visited August 12, 2026) . . . . . . . . . . . . . . . 26, 27

Patrick Griffin, et al., Trying Juveniles as Adults: An

Analysis of State Transfer Laws and Reporting,

OJJDP (September 2011) . . . . . . . . . . . . . . . . . . . . . . . 5

Phillip Goff, et al., The Essence of Innocence:

Co nsequences of Dehum anizin g Bl a ck

Children, Journal of Personality and Social

Psychology, 2014, Vol. 106, No. 4, 526-545 . . . . . . . . 15

xi

Cited Authorities

Page

Office of Juvenile Justice and Delinquency

Prevention, U.S. Dept. of Justice, Challenging

the Myths, 1999 National Report Series:

Juvenile Justice Bulletin (February, 2000) . . . . . . . .5

Ratt a n, Lev i ne, D weck & Eberha rdt ,

Ra c e a n d th e Fr a g i li ty of th e L e ga l

Distinction between Juveniles and Adults,

7 PLoS ONE 1, 3 (2020) . . . . . . . . . . . . . . . . . . . . 15, 16

Robert H. Miller, Six of One is Not a Dozen of

the Other: A Reexamination of Williams v.

Florida and the Size of State Criminal Juries,

146 U. Pa. L. Rev. 621 (1998) . . . . . . . . . . . . . . . . . . . 17

Shari Seidman Diamond et al., Achieving Diversity

on the Jury: Jury Size and the Peremptory

Challenge, 6 J. Empirical Legal Stud. 425

(2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Smith, A. & Saks, M. J., The Case for Overturning

Williams v. Florida and the Six-Person Jury:

History, Law, and Empirical Evidence,

60 Fla. L. Rev. 441 (2008) . . . . . . . . . . . . . . . . . . . . . . 22

Starr & Rehavi, Racial Disparity in Federal

Cr iminal Charging and its Sentencing

Consequences, 122 J. Pol. Econ. 1320 (2012) . . . . . . 15

Smith & Levinson, The Impact of Implicit

Racial Bias on the Exercise of Prosecutorial

Discretion, 35 Seattle U. L. Rev. 795 (2012) . . . . . 16

xii

Cited Authorities

Page

Wanling Su & Rahul Goravara, What is a Jury?,

N.C. L. Rev., 103 NCLR 969 (2025) . . . . . . . . . . 18, 19

Zeisel, H., … And Then There Were None: The

Diminution of the Federal Jury, 38 U. Chi.

L. Rev. 710, 719-20 (1972) . . . . . . . . . . . . . . . . . . . . . . 22

1

INTEREST OF AMICUS1

Human Rights for Kids is a non-profit organization

dedicated to the promotion and protection of the human

rights of children. We incorporate research and public

education, coalition building and grassroots mobilization, as

well as policy advocacy and strategic litigation, to advance

critical human rights on behalf of children. A central focus

of our work is advocating in state legislatures and courts

for comprehensive justice reform for children consistent

with the U.N. Convention on the Rights of the Child.

SUMMARY OF ARGUMENT

Children in states that empanel six-member juries

are at an increased risk of wrongful conviction due to

the decreased accuracy and reliability of their verdicts.

Youth also suffer disparate treatment in capital cases

when compared to their adult counterparts. In Florida,

for example, children have been sentenced to die in prison

(life without parole), after they’ve been convicted of firstdegree murder by a six-member jury. 2 Adult defendants,

on the other hand, are always entitled to twelve-member

juries in such cases, even when prosecutors have

waived the death penalty!3 This disparate treatment is

incompatible with this Court’s recognition that children

1. No counsel for a party authored this brief in whole or

in part, and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person other than amicus curiae or its counsel made a monetary

contribution to its preparation or submission.

2. State v. Hallowell, No. 2019-CF-001099-A (Fla. Cir. Ct.

Citrus Cnty.), aff’d, Hallowell v. State, 336 So. 3d 282 (Fla. 5th

DCA 2022) (table).

3. State v. Hogan, 451 So.Sd 844, 845 (1984).

2

should be afforded greater protection, not less, when

facing the loss of life or liberty.

Modern empirical research overwhelmingly confirms

that twelve-member juries deliberate more thoroughly,

recall evidence more accurately, and produce more reliable

outcomes than six-member juries, thereby refuting

the factual premises upon which Williams v. Florida

relied.4 Most fundamentally, the twelve-member jury is

inseparable from the constitutional protections that define

a fair criminal trial. The presumption of innocence and the

requirement that guilt be established beyond a reasonable

doubt derive their practical force from a deliberative body

capable of rigorously testing the government’s evidence.

Reducing the size of the jury correspondingly diminishes

these foundational constitutional safeguards.

Finally, just as the Ramos Court recognized that the

Sixth Amendment incorporates the historic requirement

of jury unanimity, the same historical sources and

constitutional principles compel recognition that the jury

guaranteed by the Sixth Amendment consists of twelve

members. 5 Because the use of a constitutionally deficient

jury alters the very framework within which guilt is

determined, convictions returned by six-member juries

constitute structural error requiring automatic reversal.6

Accordingly, the Court should rule in favor of the

petitioner.

4. Michael J. Saks & Mollie Weighner Marti, A MetaAnalysis of the Effects of Jury Size, 21 Law & Hum. Behav. 451

(1997).

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

6. Arizona v. Fulminate, 499 U.S. 299 (1991).

3

ARGUMENT

I.

CHILDREN ARE UNFAIRLY TREATED AND

DISPROPORTIONATELY HARMED BY THE

USE OF JURIES WITH LESS THAN TWELVE

MEMBERS

Understanding that children are fundamentally

different from adults, this Court has long upheld the need

for heightened constitutional protection when they are

involved in the criminal justice system. In holding that

children subject to delinquency prosecution are entitled

to the same due process protections available in the adult

criminal justice system, the Gault Court expressly noted

that “[f]ailure to observe the fundamental requirements

of due process has resulted in instances, which might

have been avoided, of unfairness to individuals and

inadequate or inaccurate findings of fact and unfortunate

prescriptions of remedy. Due process of law is the primary

and indispensable foundation of individual freedom.” 7

Subsequently, in a series of Eighth Amendment cases

beginning with Thompson v. Oklahoma,8 the Court

has repeatedly held that child status undermines “the

penological justifications for imposing the harshest

sentences on juvenile offenders.” 9 And in J.D.B. v. North

7. In re Gault 387 U.S. 1, 19-20 (1967).

8. See Thompson v Oklahoma, 487 U.S. 815 (1988); Roper v

Simmons 543 U.S. 551 (2005); Graham v Florida, 560 U.S. 48 (2010);

Miller v. Alabama 567 U.S. 460 (2012).

9. Miller at 471-472.

4

Carolina,10 the Court’s Fifth Amendment Miranda analysis

explicitly referenced the child status of the defendant.11

The Court’s rulings reflect the extensive scientific

evidence establishing structural differences in the

brains of young people as compared to adults. As Justice

Harlan noted in Gault, “Among the first premises of

our constitutional system is the obligation to conduct

any proceeding in which an individual may be deprived

of liberty or property in a fashion consistent with the

“traditions and conscience of our people. The importance

of these procedural guarantees is doubly intensified here

[where children are involved]”12 As discussed below, the

use of six member juries is a Sixth Amendment deprivation

that also disproportionately harms children.

Full appreciation of the impact of the adult criminal

justice system on children in the United States, requires

an understanding of judicial transfer laws. Every year,

approximately 53,000 children are prosecuted in the

adult criminal justice system despite well-established

neuroscience demonstrating that children differ from

adults in development, judgement and capacity for

change.13 The policy shift exposing children to increased

10. J.D.B. v. North Carolina, 564 U.S. 261 (2011).

11. Id.

12. In re Gault, 387 U.S. 1, 67 (1967) (Harlan, J., concurring

in part and dissenting in part).

13. Charles Puzzanchera et al., National Center for Juvenile

Justice, Youth younger than 18 prosecuted in criminal court:

National estimate, 2019 cases (https://ncjj.org/pdf/NCJJ_Transfer_

estimate_2019.pdf).

5

prosecution in adult court occurred in the 1990s in response

to a fictionalized threat portraying youthful offenders as

“super-predators”.14 Relying on racist tropes and coded

references to Black “inner city” youth,15 this prediction

was swiftly proven false: juvenile crime dropped by more

than half instead of rising16 and the political scientist who

authored the theory later renounced it.17

Nevertheless, every state and the Federal government

still prosecutes children in adult court either through

statutory exclusion, direct-file, prosecutorial discretion

or judicial waiver. As a result, approximately 3 percent

of our adult prison population consists of people serving

adult sentences for crimes they allegedly committed as

children.18

14. Patrick Griffin et al., Trying Juveniles as Adults: An

Analysis of State Transfer Laws and Reporting (U.S. Dep’t of Just.,

Off. of Juv. Just. & Delinq. Prevention 2011).

15. John J. DiIulio Jr., The Coming of the Super-Predators, The

Weekly Standard (Nov. 27, 1995), https://www.washingtonexaminer.

com/weekly-standard/the-coming-of-the-super-predators.

16. Office of Juvenile Justice and Delinquency Prevention,

U.S. Dept. of Justice, Challenging the Myths, 1999 National Report

Series: Juvenile Justice Bulletin (February, 2000), https://www.ojp.

gov/pdffiles1/ojjdp/178993.pdf.

17. John J. DiIulio, Jr., Rethinking Crime—Again, Democracy

Journal, Spring 2010, at 46, 52–53.

18. Human Rights for Kids, Crimes Against Humanity: The

Mass Incarceration of Children in the United States, 9 (2023).

6

A.

CHILDREN SUFFER DISPARATE HARM

WHEN DENIED THE RIGHT TO A TWELVEMEMBER JU RY U N DER THE SI XTH

AMENDMENT

Only seven states allow use of juries with less than

twelve members when prosecuting felonies. While all of

them draw different lines for when a jury of a certain

size must be used, the one commonality they share is

the twelve-member requirement in the most serious

cases posing the most severe punishments. This peculiar

practice begs an important question: if the procedural

requirement of a six-or-eight-member jury has no material

impact on the accuracy or reliability of a conviction, then

why require twelve member juries at all? As the following

review of these minority states’ practices demonstrates,

deviation from the common law twelve-member jury has

had a particularly harmful impact on child defendants

who, in the case of Florida, are treated worse than adult

defendants.

Arizona only requires twelve member juries in cases

involving the death penalty or imprisonment for thirty

or more years.19 Today, there are approximately 933

people incarcerated in Arizona for crimes they allegedly

committed as children, constituting 2.28 percent of

the overall state prison population. 20 Approximately 15

percent are serving life sentences, with the rest serving

19. A.R.S. § 21-102.

20. Human Rights for Kids, Crimes Against Humanity,

supra note 18, at 73.

7

term of years sentences. 21 The average sentence is

approximately 8.65 years. 22 Because of the small number

of youth serving life sentences and a relatively short

average sentence length, it is likely that most youth who

faced prosecution in Arizona’s criminal court would not

have had the procedural protections of a twelve-member

jury.

Connecticut is one of the most pervasive violators of

the jury trial right as it was understood at common law.

Unless a child faces a sentence of life imprisonment, they

are subjected to a six-member jury. 23 As of 2023, there

were no children serving life sentences in the state. 24 It is

thus highly unlikely that anyone currently incarcerated

in Connecticut for an offense committed as a child would

have been convicted by a twelve-member jury. However,

there were 210 people, representing 2.4% of the state

prison population, serving term-of-years sentences as

children. 25 The average sentence of this subpopulation

was just under 30 years. 26 Within this population, at least

three individuals reported having been convicted by a

six-member jury for offenses they allegedly committed

21. Id.

22. Id.

23. Conn. Gen. Stat. § 54-82.

24. Human Rights for Kids, Crimes Against Humanity,

supra note 18, at 77.

25. Id.

26. Id.

8

as children. 27 Similar to Arizona, children in Connecticut

faced a criminal justice system bereft of the protections

that accompany a twelve-member jury.

Indiana extends the right to a twelve-member jury

in cases involving murder or a Level 1 through Level 5

felony offense. 28 In all other criminal cases a six-member

jury is empaneled. 29 While it is unlikely that most children

prosecuted as adults in Indiana are deprived of a twelvemember jury, those charged with a felony offense not listed

above, and who have either a prior felony or nontraffic

misdemeanor conviction, could be subjected to a sixmember jury. 30 The state has approximately 214 people

who have been incarcerated since childhood, including 22

serving life sentences.31 This is approximately 0.79 percent

of the state’s prison population. 32

Louisiana is the only one of the seven states that

completely excludes seventeen-year-olds from the

jurisdiction of its juvenile courts. 33 While this practice

arguably violates U.S. treaty obligations under the

27. Human Rights for Kids, Survey of People Incarcerated

for Crimes Committed as Children (July 2, 2026) (unpublished

survey prepared for Kian v. Florida, No. 123-456.

28. Ind. Code § 35-37-1-1 (2025).

29. Id.

30. Ind. Code § 31-30-3-6 (2025).

31. Human Rights for Kids, Crimes Against Humanity,

supra note 18, at 85.

32. Id.

33. La. Ch. Code art. 804(1)(a).

9

ICCPR, it also exposes these youth to trial by six-member

juries. 34 Louisiana empanels such juries when the offense

carries a punishment that may include confinement at

hard labor.35 Approximately 2,277 people are incarcerated

for crimes they allegedly committed as children in the

state, including 617 who are serving life or de facto life

sentences. 36 The remaining population is serving an

average sentence of 13.4 years. 37 It is not known how

many of these individuals may have been convicted by

six-member juries.

In Massachusetts, the most serious felony cases

proceed in Superior Court which requires the use of a

twelve-member jury. 38 The District Court has jurisdiction

over “all felonies punishable by imprisonment … for not

more than five-years.” 39 In these latter cases, twelvemember juries are not required.40 Approximately 182

people are currently incarcerated in Massachusetts for

crimes they allegedly committed as children, including 96

34. La. Const. art. I, § 17(A); La. Code Crim. Proc. art.

782(A).

35. Id.

36. Human Rights for Kids, Crimes Against Humanity,

supra note 18, at 89.

37. Id.

38. Mass. Gen. Laws ch. 212, § 6.

39. Commonwealth v. Muckle, 90 Mass. App. Ct. 384, 59

N.E.3d 439 (Mass. App. 2016).

40. G. L. c. 218, § 26A.

10

who are serving life sentences.41 The remainder are serving

an average sentence of 13.72 years.42 This represents 2.2

percent of the overall state prison population.43 As of 2023,

there were at least 12 individuals serving sentences of five

years or less for offenses they committed as children.44

While it is unclear how many of these cases were tried in

District Court, those that were would have faced juries

with less than twelve members.

Florida has the most onerous rule, restricting twelvemember jury trials solely to ‘capital cases.’ 45 The Florida

Supreme Court has further ruled that even if a crime

is labeled a “capital offense,” a twelve-member jury is

not required in cases “where the death penalty is no

longer possible.”46 That court has also ruled that where

prosecutors waive the death penalty for adult defendants,

it does not change the classification of first degree murder

from a ‘capital offense’ to a non-capital offense, thereby

depriving the defendant of his right to a twelve-member

jury.47 The controlling factor in this analysis is whether

or not death is a viable penalty under statutory and

constitutional law.48

41. Human Rights for Kids, Crimes Against Humanity,

supra note 18, at 92.

42. Id.

43. Id.

44. Id.

45. FL. R. Crim. P. 3.270.

46. Hogan at 845.

47. Id.

48. Id.

11

This has a particularly adverse effect on children.

Invoking Roper’s prohibition of the death penalty

for children, some Florida courts have ruled that the

twelve-member jury requirement is inapplicable for child

defendants in capital cases.49 This has led to the grossly

inequitable result of adult defendants having greater due

process protections in first degree murder cases than

children, even where the state is not seeking the death

penalty. 50 In Fucci v. State, for example, a 14 year-old

defendant faced a possible life sentence for first-degree

murder, but was not entitled to a twelve-member jury. 51

Such disparate treatment of child and adult offenders

facing trial for first degree murder, even where the death

penalty has been waived for the latter, defies logic.

Excluding first degree murder cases, approximately

fifty-one children have been convicted in Florida by

six-member juries and remain incarcerated today as a

result. 52 Including post-Roper first degree murder cases

that have been independently verified by Amicus the

number rises to fifty-seven. 53 It is worth noting that this

49. Walling v. State, 105 So.3d 660, 662-63 (2013); see also

Chavers v. State, 359 So.3d 846 (2023).

50. State v. Griffith, 561 So.2d 528, 529 (Fla. 1990).

51. Fucci v. State, 420 So.3d 523, 526 (2023).

52. Human Rights for Kids, Survey of People Incarcerated

for Crimes Committed as Children, supra note 52 (Survey

responses indicating a six-member jury conviction in Florida

were cross-referenced with publicly available court records

for verification); see also Florida Department of Corrections,

All Offenses Committed Prior to 18 th Birthday (July 8, 2026)

(unpublished report prepared in response to a data request).

53. Id.

12

data is a conservative approximation and is likely a severe

undercount. Furthermore, it does not include individuals

who were convicted by six-member juries, but were later

exonerated and/or released.

There is conflicting data on the total number of people

who have been incarcerated in Florida since childhood.

The data in the preceding paragraph is largely based on a

recent request to the Florida Department of Corrections,

where it identified only 294 people convicted for crimes

committed as children. 54 In a much more expansive 2023

analysis, however, 2,638 people, representing 2.75 percent

of the state prison population, were identified as serving

sentences for crimes committed as children. 55 Only 329 of

the individuals in this subset were serving life sentences

with the remaining serving term-of-years sentences, 56

suggesting that nearly all of these youth would not have

been entitled to a twelve-member jury.

Most criminal trials in Utah are before eight-member

juries, with the notable exception of ‘capital offenses,’

which require twelve members.57 Unlike Florida, however,

‘capital’ offenses in Utah are not classified as such

based solely on the availability of the death penalty. 58

54. Id.

55. Human Rights for Kids, Crimes Against Humanity,

supra note 18, at 80.

56. Id.

57. State v. James, 30 Utah 2d 32, 33 512 P.2d 1031, 1032

(Utah 1973).

58. Id. at 36.

13

Instead, what constitutes a ‘capital’ offense is set by the

legislature. 59 As a result, a defendant’s right in a ‘capital’

case to a twelve-member jury remains absolute regardless

of whether the death penalty is technically available.60

That being said, the Utah Legislature has specified that

in certain instances aggravated murder is a noncapital

crime, including in cases where the state does not file a

notice of intent to seek the death penalty or where “the

defendant was younger than 18 years old at the time the

offense was committed.”61 Accordingly, as in Florida, child

defendants in Utah are not entitled to twelve-member

juries under any circumstances.

There are approximately 118 people incarcerated in

Utah for crimes they allegedly committed as children.62

The average sentence of those not serving ‘life’ sentences

is roughly 69.75 years (10.78 years when those serving

sentences longer than 40 years are removed). This

subpopulation represents 1.77 percent of Utah’s total

prison population, the overwhelming majority of whom

faced the prospect of a criminal trial without the benefit

of a twelve-member jury.63

Many of the children discussed in this section who

were convicted by six-member juries are no longer on

59. Id.

60. Id.

61. Utah Code § 76-5-202.

62. Human Rights for Kids, Crimes Against Humanity,

supra note 18, at 115.

63. Id.

14

direct appeal. Therefore, a ruling in favor of the Petitioner

would not entitle them to a new trial.64 Although not

presented in this case, we would respectfully urge the

Court to revisit its retroactivity doctrine in Edwards v.

Vannoy to make an exception for child defendants.65

B. D I S PA R A T E R A C I A L I M PA C T O N

CHILDREN PROSECUTED AS ADULTS

In states that permit jury trials with less than twelve

members, Black youth are disproportionately convicted

and incarcerated as adults.66 In Arizona, they represent 24

percent of those incarcerated; in Connecticut, 61 percent;

in Florida, 68.8 percent; in Indiana, 66.4 percent; in

Louisiana, 83.3 percent; in Massachusetts, 44.5 percent;

and in Utah, 12.7 percent.

Moreover, in those states for which data is available,

these racial disparities remain for youth convicted by sixmember juries. In Connecticut, two-thirds of the children

convicted by such juries were Black, while one-third was

Hispanic.67 In Florida, approximately 72 percent of youth

convicted by six-member juries were Black, 18 percent

were White, and 10 percent were Hispanic.68 There are

numerous systemic reasons for these disparities, but of

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

65. Id.

66. Human Rights for Kids, Crimes Against Humanity,

supra note 18, at 115.

67. Human Rights for Kids, Survey of People Incarcerated

for Crimes Committed as Children, supra note 27.

68. Id.

15

major importance is the perception that Black children are

more culpable than their biological age would indicate.69

A 2012 study identifies the implications arising from the

adultification of Black children in the minds of juries and

judges alike, suggesting that “racial priming manipulation

can affect the degree to which juveniles (in general) are

afforded the established protections associated with their

age status in the context of a severe crime… being primed

over and over through exposure to Black individuals or

racially coded language could produce changes in judges’

and juries’ perceptions of culpability and their ensuring

punitive judgments.” 70 Participants in another study

“began to think of black children” as early as age ten, “as

significantly less innocent than other children at every

age group.” 71

The consequences of such beliefs do not exist in a

vacuum. Black people face disproportionate outcomes at

many stages of the criminal legal process with research

revealing that Black people are 1.75 times more likely

to be charged with offenses carrying a mandatory

minimum sentence.72 Black children are also more likely

69. Rattan, Levine, Dweck & Eberhardt, Race and the

Fragility of the Legal Distinction between Juveniles and Adults, 7

PLoS ONE 1, 3 (2020).

70. Id. at 4.

71. Phillip Atiba Goff et al., The Essence of Innocence:

Consequences of Dehumanizing Black Children, 106 J. Personality

& Soc. Psych. 526, 527 (2014).

72. Starr & Rehavi, Racial Disparity in Federal Criminal

Charging and its Sentencing Consequences, 122 J. Pol. Econ. 1320,

1323 (2012).

16

to be charged as adults,73 and to be charged with felony

murder.74 Another study found that individuals were more

likely to support life without parole sentences when told

the defendant was Black.75 In this context, the perception

of youth matters and the implicit bias that exists within

the jury pool towards Black youth cannot be ignored

and is only exacerbated with juries of less than twelve

members. These issues are central to the examination of

how to ensure fairness and accuracy in the fundamental

exercise of due process.

II. T H E T W E L V E - M E M B E R J U R Y I S

FUNDAMENTAL TO THE AMERICAN SCHEME

OF JUSTICE AND SAFEGUARDS AGAINST

WRONGFUL CONVICTIONS

A.

THE FOUNDERS UNDERSTOOD THAT THE

SIXTH AMENDMENT RIGHT TO A TRIAL

BY AN IMPARTIAL JURY REQUIRED

TWELVE MEMBERS

The Sixth Amendment establishes the right of

criminal defendants to “a speedy and public trial, by

73. Smith & Levinson, The Impact of Implicit Racial Bias

on the Exercise of Prosecutorial Discretion, 35 Seattle U. L. Rev.

795 (2012).

74. Albrecht, Data Transparency & The Disparate Impact

of the Felony Murder Rule, Duke Ctr. For Firearms Law (Aug. 11,

2020) https://firearmslaw.duke.edu/2020/08/data-transparency-thedisparate-impact-of-the-felony-murder-rule.

75. Rattan at 1, 3.

17

an impartial jury.” 76 . The framers adopted the right

from English common law and the Magna Carta, which

enshrined the right to trial by a panel of “peers.” 77 A

trial by one’s peers provides for community participation

and the injection of civic ethos in criminal proceedings,

safeguarding the accused from government overreach

and the unjust deprivation of life, liberty, and property.

Twelve-member panels appeared for the first time in

England between 1083 and 1086 and were codified into

English law by the fourteenth century.78

In 1769, Blackstone explained that the common

law jury trial right required that “the truth of every

accusation ... should afterwards be confirmed by the

unanimous suffrage of twelve of the defendant’s equals

and neighbors.” 79 This right “came to America with

English colonists.”80 By the time of the U.S. Constitution’s

drafting, unanimous, twelve-member verdicts were a

procedural convention with a four-hundred-year history. 81

Legal dictionaries, treatises, and scholarship at the time

76. U.S. Const. amend. VI.

77. See Robert H. Miller, Six of One is Not a Dozen of the

Other: A Reexamination of Williams v. Florida and the Size of

State Criminal Juries, 146 U. Pa. L. Rev. 621, 637 (1998).

78. Id. at 635, 639–640.

79. Apprendi v. New Jersey, 530 U.S. 466, 477 (2000) (quoting

4 W. Blackstone, Commentaries on the Laws of England 343 (1769)).

80. Duncan, 391 U.S. at 152.

81. See Miller, supra note 8, at 643; see also Khorrami v.

Arizona, 143 S. Ct. 22, 23 (2022) (Gorsuch, J., dissenting from

the denial of certiorari).

18

of founding all establish the tradition and efficacy of the

twelve-member jury. 82 Such specification was echoed by

Blackstone’s contemporaries in other leading treatises

including Lord Edward Coke’s Institutions of the Lawes

of England, Sir Matthew Hale’s History of the Pleas of

the Crown, and Matthew Bacon’s A New Abridgement of

the Law. 83

Giles Jacob’s popular legal dictionary, included

in the private collections of John Adams and Thomas

Jefferson, used “twelve men” interchangeably with

“jury,” qualifying the word as a term of art to reference

empaneling specifically twelve jurors. 84 However, the

framers’ adoption of twelve was more intentional than

a blind adherence to this centuries-long practice. At the

time, larger juries were backed by qualitative support

from French economist and mathematician Marquis

Nicolas de Condorcet who used a probability calculus to

demonstrate that larger juries were more accurate in his

work Essay on the Application of Mathematics to the

Theory of Decision Making. 85 This influential work was

found in the collections of Thomas Jefferson and James

Madison and was referenced frequently in letters between

the two. 86

82. See Wanling Su & Rahul Goravara, What is a Jury?, N.C.

L. Rev., 103 NCLR 969, 993 (2025) (quoting 1 William Blackstone,

Commentaries on the Laws of England 343 (1769)).

83. Id. at 993-996.

84. Id. at 997 (quoting Giles Jacob, A New Law Dictionary

949 (10th ed. 1782)).

85. Id. at 1010-1012.

86. Id.

19

Documents from states’ ratifying conventions

memorialize how state officials and judges all interpreted

a “jury,” in the words of Virginia’s then-Governor Patrick

Henry, to be comprised of “twelve impartial men”. 87

Following the Constitutional Convention, a stream of

state-court decisions concretized the interpretation of

“jury” as a body of twelve into common law. 88

Federal courts followed suit and between founding

and 1970, Supreme Court precedent cemented the twelvemember jury as enjoying six hundred years of formal

recognition. Beginning with Thompson v. Utah in 1898

this Court has uniformly held principally or in dicta 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.”89

This history provides great evidence for how the framers’

use of the word “jury” in the Sixth Amendment would have

carried the plain meaning and common understanding

of a panel of twelve, as it had for centuries in English

common law.

Against this backdrop, the decision to disappear

the twelve-member requirement in Williams v. Florida

appears anomalous and was hinged upon conjecture. With

scant support, the court surmised that smaller juries

87. Id. at 991-992.

88. See Miller, supra note 8, at 643.

89. Thompson v. Utah, 170 U.S. 343, 349 (1898). See Capital

Traction Co. v. Hof, 174 U.S. 1, 13 (1899); Maxwell v. Dow, 176

U.S. 581, 586. (1900); Rassmussen v. United States, 197 U.S. 516,

527 (1905); Patton v. United States, 281 U.S. 276, 288; Duncan v.

Louisiana, 391 U.S. 145, 151–152 (1968).

20

would satisfy the two goals of juries, which are to be “large

enough to promote group deliberation” and to “provide a

fair possibility for obtaining a representative cross-section

of the community.” 90 While Williams asserted that jury

size is “unrelated to the great purposes which gave rise

to the jury in the first place,” as discussed below, research

emerging immediately thereafter and built upon in recent

decades, has uncontrovertibly refuted that contention.

B. EMPIRICAL RESEARCH DEMONSTRATES

T H A T T W E LV E - M E M B E R J U R I E S

P R O D U C E M O R E AC C U R AT E A N D

RELIABLE OUTCOMES

In the wake of Williams, the Court was confronted

with the question of whether states could further restrict

a defendant’s due process by using five-member juries.

Relying heavily on post-Williams empirical research,

the Ballew Court held that the use of juries with less

than six members violates the Sixth and Fourteenth

Amendments91 because smaller juries foster less effective

group deliberation, produce less accurate and more

inconsistent verdicts, leave biases less counterbalanced,

hang less often to the detriment of the defense, and

impair the representation of minority members of the

community.92 One study noted “that the risk of convicting

an innocent person … rises as the size of the jury

diminishes,” 93 while another found significant variations

90. Williams v. Florida, 399 U.S. 78, 100 (1970).

91. Ballew v. Georgia, 435 U.S. 223 (1978).

92. Id. at 232-39.

93. Id. at 234.

21

between the conviction rates of twelve and six-member

juries. 94 Critically, while the empirical literature the

Court found persuasive compared juries of six with

juries of twelve, the Court could not identify a principled

line between six members and five; a line Justice Powell

conceded was “difficult to justify.” 95

In the decades since Ballew, research such as

that canvassed in Saks and Marti’s meta-analysis of

seventeen empirical studies spanning 2,061 juries and

roughly 15,000 individual jurors, has unequivocably

reinforced these findings: twelve-member juries recall

the evidence more accurately and deliberate longer;

reducing jury size from twelve to six reduces the

opp or t u n it y for m i nor it y r epr e s ent at ion f r om

approximately 63 percent to approximately 37 percent,

the largest effect of any variable studied;96 and twelvemember juries hang more often, precisely because a

juror harboring reasonable doubt is more likely to have

an ally. 97 The authors concluded that the studies on

which Williams relied to declare six- and twelve-member

94. Id. at 235.

95. Id. at 245-46 (Powell, J., concurring in the judgment); see

id. at 239 (plurality opinion).

96. Id.; See also Shari Seidman Diamond et al., Achieving

Diversity on the Jury: Jury Size and the Peremptory Challenge, 6

J. Empirical Legal Stud. 425, 442 (2009).

97. Michael J. Saks & Mollie Weighner Marti, A Meta-Analysis

of the Effects of Jury Size, 21 Law & Hum. Behav. 451 (1997); See also

Horowitz, I. A., & Bordens, K. S., The Effects of Jury Size, Evidence

Complexity, and Note Taking on Jury Process and Performance

in a Civil Trial (2002).

22

juries functionally equivalent have been discredited by

subsequent scholarly analyses.98

What the studies predict, courtroom data confirm:

smaller juries convict where larger juries would hang.

Zeisel’s study of felony trials found that six-member

juries hang in only 2.4 percent of cases, compared

with 5.0 percent for twelve-member juries. 99 Because

criminal juries generally hang with only one or two jurors

remaining unconvinced of guilt, this Court recognized

in Ballew that the variance produced by smaller juries

“amounts to an imbalance to the detriment of one side,

the defense.”100

Reviewing the field in 2020, Judge Higginbotham

and his co-authors observed that every study since 1996

has supported the earlier research and the underlying

statistical and decision-making theories, and that no

new study or theory refutes them.101 The American

Bar Association agrees, finding “significant differences

between the effectiveness of six and twelve member

juries” and concluding that the supposed efficiency gains

98. Smith, A. & Saks, M. J., The Case for Overturning Williams

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

Evidence, 60 Fla. L. Rev. 441, 465-67 (2008).

99. Zeisel, H., ... And Then There Were None: The Diminution

of the Federal Jury, 38 U. Chi. L. Rev. 710, 719-20 (1972).

100. Ballew, 435 U.S. at 236.

101. Higginbotham, P. E. et al., Better by the Dozen: Bringing

Back the Twelve-Person Civil Jury, 104 Judicature 47 (2020)

(analyzing 1,831 civil jury trials across fifteen federal districts,

2016-2018).

23

of the smaller jury are illusory because “little court time

is saved by reducing jury size.”102

C.

U N A N I M O U S T W E LV E - M E M B E R

JURIES ARE INTERWOVEN WITH THE

“PRESUMPTION OF INNOCENCE” AND

THE “BEYOND A REASONABLE DOUBT”

STA N DA RD TH AT SA FEGUA RD THE

FAIRNESS AND ACCURACY OF CRIMINAL

JURY TRIALS

As discussed above there is a mountain of empirical

evidence demonstrating how twelve member juries reach

more accurate and reliable outcomes. It is not simply

the number of jurors, however, that leads to increased

accuracy, but rather the interwoven features of the jury

trial right that safeguard citizens from government

tyranny. In Ramos v. Louisiana, the Court affirmed the

importance of the Sixth Amendment to the “American

scheme of justice,” and found that the term “trial by an

impartial jury” carried with it some meaning about the

content and requirements of a jury trial.103 In discussing

these requirements, Justice Story explained that “the

law not only presumes every man innocent, until he is

proved guilty; but unanimity in the verdict of the jury is

indispensable.”104 Expanding on this principle, the Court

in Winship found the presumption of innocence to be

102. ABA Principles for Juries and Jury Trials, Principle 3

& cmt. (2005).

103. Ramos v. Louisiana, 140 S. Ct. 1390, 1395 (2020).

104. J. Story, Commentaries on the Constitution of the

United States §777, p. 248 (1833)

24

inextricably linked to the government’s burden of proof

beyond a reasonable doubt.

The reasonable doubt standard plays a vital role

in the American scheme of criminal procedure.

It is a prime instrument for reducing the risk

of convictions resting on factual error. The

standard provides concrete substance for

the presumption of innocence, that bedrock

“axiomatic and elementary” principle whose

“‘enforcement lies at the foundation of the

administration of our criminal law.’”105

The Winship Court believed it was “critical that the

moral force of the criminal law not be diluted by a standard

of proof that leaves people in doubt whether innocent

men are being condemned,” a sentiment long echoed by

the founders.106 These pillars of American jurisprudence

reflect the belief that it is better to “err on the side of

letting the guilty go free rather than sending the innocent

to jail.”107 The reasonable doubt standard, however, does

not administer itself. It is applied by a deliberating body

of citizens, and its rigor depends on the capacity of that

body to test the government’s proof.

A unanimous jury of twelve supplies that capacity in

a way a jury of six cannot. Each juror is an independent

check on the recollection of the evidence, an additional

perspective against which the prosecution’s case must be

105. In re Winship, 397 U.S. 358, 363 (1970).

106. Id. at 363-64.

107. Id.

25

measured, and a potential voice of reasonable doubt that

the majority must persuade rather than overpower. Just

as the unanimity of a verdict is “inextricably interwoven

with the required measure of proof,”108 so too is the

size of the body that renders it. Halving the jury halves

the number of minds the State must convince beyond

a reasonable doubt, and thereby dilutes the standard

itself. When the deliberating body is too small to recall

the evidence accurately, to sustain genuine deliberation

among an accurate cross-section of the community, or to

shelter reasoned dissent from the pressure to conform,

the reasonable doubt standard cannot perform its function

of ensuring that innocent people are not condemned.109

The Court’s reasoning in Williams rested on two

premises, one methodological and one empirical, and both

have since collapsed. 110 The Court in Ramos rejected

this mode of analysis, emphasizing that judges may not

decide which historic features of the jury trial right are

“important enough” to survive, nor balance the right

away in reliance on social statistics.111 What Ramos did

to Williams’ method, fifty years of research has done to

its empirical foundation. A half century of research has

established that straying from the twelve-member jury

significantly undermines the fairness and accuracy of

criminal jury trials, and that the loss of accuracy directly

increases the risk of wrongful convictions.

108. Hibdon v. United States, 204 F.2d 834, 838 (6th Cir. 1953).

109. Winship, 397 U.S. at 364.

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

111. Ramos, 140 S. Ct. at 1400-01.

26

The deficits cataloged above translate directly into

wrongful convictions. Statistical modeling confirms

that the risk of convicting an innocent person increases

as the size of the jury decreases.112 A six-member jury

deliberates less, remembers less, silences dissent more

readily, and hangs less often. Each of those deficits

removes a safeguard that stands between an innocent

defendant and conviction.

The seven states113 that try felonies with six-member

juries have compiled a record of wrongful convictions

consistent with these findings. According to the National

Registry of Exonerations, these seven states have produced

494 exonerations, representing 5,671 years of sentences

wrongfully served, and accounting for approximately 11

percent of the 4,325 exonerations recorded nationwide.114

Florida alone accounts for 118 exonerations, among the

highest totals of any state in the nation.115

The human toll is illustrated by the case of sixteenyear-old Kenneth Atkins, who was convicted by a sixmember jury of sexual battery in 2004 and sentenced

112. Nagel, S. & Neef, M., Deductive Modeling to Determine an

Optimum Jury Size and Fraction Required to Convict, 1975 Wash.

U. L.Q. 933, discussed in Moore & Panken, Jury Size: Less Is Not

More, Cornell U.L., Social Science and Law (2010).

113. See Ariz. Rev. Stat. Ann. § 21-102; Conn. Gen. Stat. § 54-82;

Fla. Stat. § 913.10; Ind. Code § 35-37-1-1; La. Const. art. I, § 17(A)

& La. Code Crim. Proc. art. 782(A); Mass. Gen. Laws ch. 218, § 19B;

Utah Code Ann. § 78B-1-104.

114. Nat’l Registry of Exonerations, https://exonerationregistry.

org (last visited August 12, 2026).

115. Id.

27

to ten years in prison.116 In March 2006, the Florida

Appeals Court reversed the conviction and ordered a

new trial based on an illegally recorded conversation that

was used to impeach the testimony of one of the defense

witnesses.117 On retrial, the defense demonstrated that it

would have been physically impossible for Atkins to have

raped the victim based on the construction of the lounge

chair where the rape was alleged to have occurred.118 He

was subsequently acquitted.

A twelve-member jury cannot eliminate every

wrongful conviction. The Constitution does not promise

infallibility. It does, however, require procedures that

maximize the reliability of criminal verdicts before the

government deprives an individual of liberty. For more

than four centuries, the unanimous jury of twelve has

served that constitutional function. History, this Court’s

precedents, and modern empirical research all lead

to the same conclusion: the twelve-member jury is an

indispensable component of the presumption of innocence

and the requirement of proof beyond a reasonable doubt.

A six-member jury simply cannot provide the level of

protection that the Sixth and Fourteenth Amendments

guarantee.

While the State of Florida attempts to argue, with

astonishing incredulity, that decisions reached by a sixmember jury are just as accurate as those of a twelve116. Nat’l Registry of Exonerations, supra note 114, https://

exonerationregistry.org/cases/11410.

117. Atkins v. State, 930 So.2d 678 (Fla. App. 2006).

118. Nat’l Registry of Exonerations, supra note 114.

28

member jury, their practices tell a different story. Florida

and the six other states that utilize six and eight member

juries all require unanimous twelve-member jury verdicts

before a defendant can be convicted of a capital offense

or an otherwise serious felony accompanied by a lengthy

prison sentence. Despite their protest to the contrary,

they too recognize that with so much at stake in such

cases, the accuracy and reliability of twelve member juries

significantly reduce the risk that an innocent person might

be subject to a life sentence or be put to death. For them,

the risk of an innocent person being convicted of a lesser

offense that carries a five-, ten-, or fifteen-year sentence

is a fair price to pay for the sake of judicial economy. But

as this Court emphasized in Ballew:

The problem with this argument is that the purpose

and functions of the jury do not vary significantly with

the importance of the crime . . . We cannot conclude that

there is less need for the imposition and the direction of

the sense of the community in this case than when the

State has chosen to label an offense a felony.119

The right to a jury trial does not depend on whether a

defendant faces the death penalty or the deprivation of his

liberty for any number of years. The right is absolute and

is interwoven with the presumption of innocence and the

requirement that the government prove its case beyond a

reasonable doubt before life or liberty may be taken away.

Such protections are even more important when the life

and liberty of the nation’s children are at stake.

119. Ballew at 240.

29

D.

THE COURT’S REASONING IN RAMOS

REQUIRES OVERTURNING WILLIAMS

AND RETURNING TO THE ORIGINAL

UNDERSTANDING OF THE JURY TRIAL

AS REQUIRING TWELVE MEMBERS IN

CRIMINAL CASES

Instructive for this case are the parallel circumstances

of Ramos where this Court looked to historical precedent

and practice to overrule Apodaca v. Oregon in upholding

its 120-year commitment to the understanding that the

Sixth Amendment includes the right to a unanimous jury

verdict. The Court reasoned that failure to consider these

existing practices would eliminate consideration of

everything history might have taught us about

what it means to have a jury trial….leav[ing] the

right … devoid of meaning. A right mentioned

twice in the Constitution would be reduced to

an empty promise. That can’t be right.120

When the Sixth Amendment was drafted, the historical

practice establishing the requisite number of juror

members at twelve existed alongside, complemented, and

was equally as important as the unanimity requirement

upheld in Ramos.121 The unanimous verdict requirement

returned by a jury of twelve members, was the undisputed

law of the land for over 70 years, until the Court’s abrupt

departure in Williams v. Florida.122

120. Ramos at 98.

121. See discussion in Section II (A), supra.

122. Cunningham v. Florida, 144 S Ct 1287 (2024) (Gorsuch

dissent) citing Thompson v. Utah, 170 U. S. 343, 349 (1898); Patton

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

30

The rationale for recognizing the twelve-member rule

as one of the core aspects of the Sixth Amendment right to

jury trial is identical to that adopted by the Ramos Court,

a conclusion recognized by amicus Oregon in its filings in

Ramos and further anticipated by Justice Alito.123

The historical sources informing the rule of

12 and the unanimity rule are substantially

identical. Indeed, one could mount a challenge

to Willams by taking much of the briefing

in this case and substituting Williams for

Apodaca and “the rule of 12” for unanimity.124

Amicus agrees with Oregon’s analysis. Given the Court’s

decision in Ramos, there is no principled way to limit the

scope of the right to a jury trial to include the unanimity

requirement and reject the twelve-member rule.

Indeed, as Oregon further predicted: “[O]verruling

Apodaca … expose[d] and “unsettle[d]” potentially fragile

case law involving whether the Sixth Amendment permits

fewer than 12 jurors in criminal cases.”125 Oregon is

once again correct. The logical extension of this Court’s

overruling Apodaca leads inexorably to overturning

Williams.

The Ramos majority explicitly rejected the state’s

reliance interests and any burden associated with the

123. Ramos, 590 U.S. at 158 (Alito, J., dissenting).

124. Brief for the State of Oregon as Amicus Curiae Supporting

Respondent at 27, Ramos v. Louisiana, 590 U.S. 83 (2020) (No.

18-5924).

125. Id. at 28.

31

need to retry multiple cases as a reason to invoke stare

decisis to uphold Apodaca. The Court held such a ruling

would have us discard a Sixth Amendment

right in perpetuity rather than ask two States

to retry a slice of their prior criminal cases.

Whether that slice turns out to be large or

small, it cannot outweigh the interest we all

share in the preservation of our constitutionally

promised liberties.126

Moreover, the accuracy of the social studies relied upon

by the Apodaca and Williams courts in their predictions

of constitutional sufficiency of the challenged practices

have been thoroughly debunked.127

The Ramos majority thus rejected Apodaca as

“gravely mistaken. “128 The opinion’s author, Justice

Gorsuch, similarly characterized Williams as “an

embarrassing mistake.”129 This Court should come to

the same conclusion here. Williams, like Apodaca, is an

outlier.130 As only seven states allow less than twelvemember juries, “it is difficult to reconcile their outlying

practices with the Constitution.”131

126. Id. at 110-11.

127. See discussion in Section II (B).

128. Ramos, 590 U.S. at 106.

129. Cunningham, 144 S.Ct. at 1287 (Gorsuch, J., dissenting).

130. Ramos, 590 U.S. at 111.

131. Khorrami, 143 S. Ct. 22 (Gorsuch, J., dissenting).

32

E. FLORIDA’S FAILURE TO USE TWELVEMEMBER JURIES IN SERIOUS CRIMINAL

CA SES IS STRUCT U R A L ERROR

REQUIRING AUTOMATIC REVERSAL

The structural error doctrine was first delineated as

such by the Court in Arizona v. Fulminate,132 although

the core principle was applied in the earlier cases of

Tumey v. Ohio133 and Gideon v. Wainwright.134 Cases

with structural error “contain a ‘defect affecting the

framework within which the trial proceeds, rather

than simply an error in the trial process itself,’” and

as such are not amenable to harmless error analysis.135

“Such errors ’infect the entire trial process,’ … and

‘necessarily render a trial fundamentally unfair….’”136

Moreover, “[e]rrors of this type are so intrinsically

harmful as to require automatic reversal (i.e., “affect

substantial rights”) without regard to their effect on the

outcome.”137 The structural error doctrine “ensure[s]

insistence on certain basic, constitutional guarantees

that should define the framework of any criminal

132. Arizona v. Fulminante, 499 U.S. 279, 309–10 (1991).

133. Tumey v. Ohio, 273 U.S. 510 (1927).

134. The Court has identified the complete denial of counsel as

a structural error. Weaver v. Massachusetts, 582 U.S. 286, 296 (2017)

(citing Gideon v. Wainwright, 372 U.S. 335 (1963)).

135. Neder v. United States, 527 U.S. 1, 8 (1999).

136. Id.

137. Id. at 7. “Put another way, these errors deprive defendants

of ‘basic protections’ without which ‘a criminal trial cannot reliably

serve its function as a vehicle for determination of guilt or innocence

. . . and no criminal punishment may be regarded as fundamentally

fair.’” (citation omitted).

33

trial.”138 While the Weaver Court identified three broad

rationales for finding structural error, of most relevance

to this case, is a finding that “the error always results in

fundamental unfairness.”139

Failure to adhere to the twelve-member jury

requirement is classic structural error - one that so alters

the constitutional framework of any such trial that the

fairness of the proceedings is destroyed. It is undeniably

a substantial right of a defendant to have a fair trial.140 In

Neder, Justice Scalia explicitly cautioned against taking

any actions infringing on the traditional jury trial right:

The Sixth Amendment provides: ‘In all criminal

prosecutions, the accused shall enjoy the right

to a speedy and public trial, by an impartial

jury. . . .’ When this Court deals with the content

of this guarantee — the only one to appear in

both the body of the Constitution and the Bill of

Rights — it is operating upon the spinal column

of American democracy.141

Citing Blackstone, Justice Scalia further described

the traditional right to trial by jury in criminal cases as

“the grand bulwark of [the Englishman’s] liberties.” In

characterizing the right to an impartial jury trial as a

cornerstone of American democracy, he notes that it is

“the only guarantee common to the 12 state constitutions

that predated the Constitutional Convention… appear[ing]

138. Weaver at 294-95.

139. Id. at 294-96.

140. Neder v. United States, 527 U.S. 1, (1999).

141. Id. at 30 (emphasis added) (Scalia, J., dissenting).

34

in the constitution of every State to enter the Union

thereafter.”142

Justice Scalia’s discussion in Neder of the fundamental

importance of the right to a jury trial parallels this

Court’s analysis in Ramos in which it concluded that

jury unanimity is a fundamental Sixth Amendment

requirement.143 Both analyses invoke the same historical

precedent in support of their conclusions. As previously

discussed, the twelve-member jury rule has this same

“sacrosanct” status. Accordingly, this Court should rule

that failure to use a twelve-member jury always affects

fundamental fairness, as it impermissibly operates “on the

spinal column of American democracy,” in every case in

which it is employed, and thus qualifies as structural error.

“The very premise of structural-error review is

that even convictions reflecting the ‘right’ result are

reversed for the sake of protecting a basic right.”144 In

the years since Williams the Court’s cases “have insisted,

repeatedly, that 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 . . . Repeatedly,

too, our cases have warned of the dangers posed by the

gradual ‘erosion’ of the jury trial right.” 145

142. Id. at 31 “citing” Albert W. Alschuler & Andrew G.

Deiss, A Brief History of the Criminal Jury in the United States,

61 U. Chi. L. Rev. 867, 870, 875 n.44 (1994).

143. Ramos at 90-91.

144. Neder, 527 U.S. at 34.

145. Cunningham v. Florida, 144 S Ct at 1287 (Gorsuch, J.,

dissenting) citing Apprendi v. New Jersey, 530 U. S. 466, 483 (2000)

35

Despite Respondent’s conclusory statement to the

contrary,146 use of a six-member jury implicates the most

fundamental protections afforded by the constitution

in an area “that ranks among the most essential- the

right to put the state to its burden, in a jury trial that

comports with the Sixth Amendment.”147 The use of a

six-member jury on any occasion is a defect that so alters

the foundational constitutional framework of a case that

the process itself has become defective and is no longer

constitutionally adequate. As such it is a structural error

requiring automatic reversal.148

quoting Jones v. United States, 526 U. S. 227, 248, (1999); Ramos v.

Louisiana, 590 U. S. 83 (2020).

146. Brief in Opposition at 20, Kian v. Florida, No. 25-6623

(U.S.).

147. Ramos, 590 U.S. at 113 (Sotomayor, J., concurring as to

all but Part IV-A) (citing Codispoti v. Pennsylvania, 418 U.S. 506,

515–16 (1974)).

148. Respondents’ arguments that the evidence shows that

the outcome would have been the same even if a twelve-member

jury had been impaneled (Brief in Opposition at 21-22) would only

be relevant in a harmless error inquiry. But under structural error

analysis, the outcome is irrelevant; it is the impermissible effects on

the framework of the proceedings that are at issue.

36

CONCLUSION

For the foregoing reasons the Court should reverse

the decision below.

Respectfully submitted,

James Dold

Counsel of Record

Teresa Kominos

Suzanne La Pierre

Human Rights for Kids

P.O. Box 5960

Washington, DC 20016

(202) 573-7758

jdold@humanrightsforkids.org

Attorneys for Amicus Curiae

August 13, 2026