Amicus Curiae Brief — Hamed Kian, Petitioner v. Florida
Supreme Court briefAug 13, 2026
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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
District Court of Appeal of Florida,
Fourth District
_________
BRIEF FOR THE JUROR PROJECT AS
AMICUS CURIAE IN SUPPORT OF
PETITIONER
_________
JO-ANN TAMILA SAGAR
Counsel of Record
ERIC ROYTMAN-CASH
ASHWIN FUJII
HOGAN LOVELLS
CADWALADER US LLP
555 Thirteenth Street, N.W.
Washington, D.C. 20004
(202) 637-5600
jo-ann.sagar@hlc.com
Counsel for Amicus Curiae
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ....................................... iv
STATEMENT OF INTEREST .................................... 1
INTRODUCTION AND SUMMARY
OF ARGUMENT .................................................... 2
ARGUMENT ............................................................... 4
I.
A JURY DRAWN FROM A FAIR CROSSSECTION OF THE COMMUNITY IS
FUNDAMENTAL TO THE SIXTH
AMENDMENT JURY-TRIAL RIGHT ............. 4
A.
The Fair-Cross-Section
Requirement Ensures That a
Jury Is Chosen From a Pool
Representative of the Community ........... 5
B.
The Fair-Cross-Section Requirement
Reflects the Centuries-Old
Understanding That a Jury Must Be
Drawn from the Defendant’s Peers
and Neighbors ........................................... 6
C.
The Fair-Cross-Section Requirement
Is a Cornerstone of This Court’s Sixth
Amendment Jurisprudence ...................... 9
D.
The Fair-Cross-Section Requirement
Supports the Impartiality of the
Criminal Justice System ........................ 13
(i)
ii
TABLE OF CONTENTS–Continued
Page
II.
1.
Representative Juries Deliberate
More Thoroughly and Reach More
Reliable Verdicts ............................. 13
2.
Representative Juries Bolster
Public Confidence in Criminal
Verdicts and the Criminal
Justice System ................................ 15
THE SIXTH AMENDMENT’S
PROTECTIONS ARE MUTUALLY
REINFORCING .............................................. 16
A.
The 12-Member Requirement—Like
The Fair-Cross-Section and
Unanimous-Verdict Requirements—
Forms Part Of The Sixth Amendment
Jury-Trial Right...................................... 17
1.
At The Founding, A “Jury” Meant
A Body Of Twelve Selected From
Among The Defendant’s Peers Who
Reached A Unanimous Verdict ...... 17
2.
In Early America, Panels Of Fewer
Than Twelve, Not Fairly Drawn
From The Community, And Not
Required To Reach A Unanimous
Verdict, Were Permitted Only
Where The Defendant Had No
Jury Trial Right At All ................... 19
iii
TABLE OF CONTENTS–Continued
Page
3.
B.
As The American Constitutional
Community Expanded, So Too
Did The Understanding Of What
A Representative Jury
Pool Required ................................. 20
The 12-Member Requirement Promotes
the Jury’s Representative Function ....... 21
III. THIS COURT SHOULD OVERRULE WILLIAMS ..... 25
CONCLUSION .......................................................... 28
iv
TABLE OF AUTHORITIES
Page
CASES:
Ballew v. Georgia,
435 U.S. 223 (1978) .......................................... 2, 25
Bank of Columbia v. Okely,
17 U.S. 235 (1819) .................................................. 7
Blakely v. Washington,
542 U.S. 296 (2004) .............................................. 25
Brown v. Louisiana,
447 U.S. 323 (1980) .............................................. 25
Duncan v. Louisiana,
391 U.S. 145 (1968) .......................................... 5, 22
Giles v. California,
554 U.S. 353 (2008) ........................................ 25, 26
Glasser v. United States,
315 U.S. 60 (1942) .......................................... 11, 16
Holland v. Illinois,
493 U.S. 474 (1990) .............................. 3, 12, 15, 26
Lockhart v. McCree,
476 U.S. 162 (1986) .................................... 6, 13, 15
Maxwell v. Dow,
176 U.S. 581 (1900) ................................................ 3
Pope Mfg. Co. v. Gormully,
144 U.S. 224 (1892) ................................................ 9
Ramos v. Louisiana,
590 U.S. 83 (2020) ...................... 2–4, 13, 20, 25, 26
Smith v. Texas,
311 U.S. 128 (1940) .............................. 6, 11, 13, 15
v
TABLE OF AUTHORITIES—Continued
Page
Smith v. United States,
599 U.S. 236 (2023) .............................................. 27
Southern Union Co. v. United States,
567 U.S. 343 (2012) ................................................ 6
State ex rel. Kohne v. Simons,
29 S.C.L. (2 Speers) 761
(S.C. Ct. Err. 1844) ........................................ 19, 20
Strauder v. West Virginia,
100 U.S. 303 (1879) ........................................ 10, 13
Swain v. Alabama,
380 U.S. 202 (1965) ................................................ 5
Taylor v. Louisiana,
419 U.S. 522 (1975) .......... 2–6, 9, 10, 12, 13, 15, 26
Thiel v. Southern Pac. Co.,
328 U.S. 217 (1946) ................................ 3, 6, 11–13
United States v. Grisham,
63 F.3d 1074 (11th Cir. 1995) .............................. 16
Webster v. Reid,
52 U.S. 437 (1850) .................................................. 9
Williams v. Florida,
399 U.S. 78 (1970) .................... 2, 16, 21, 22, 26, 27
Work v. State,
2 Ohio St. 296 (1853) ..................................... 18, 19
Zylstra v. Corporation of City of Charleston,
1 S.C.L. (1 Bay) 382 (Ct. Com. Pl. 1794) ............. 18
vi
TABLE OF AUTHORITIES—Continued
Page
STATUTES:
An Act Concerning Servants and Slaves, ch. 24, § 48,
reprinted in Acts of the North Carolina General
Assembly, 1741, 23 Colonial &
St. Recs. N.C. 191................................................. 20
An Act to Extend the Right of Trial by Jury to
Slaves, ch. 5, 1793 N.C. Sess. Laws 38 ............... 20
CONSTITUTIONAL AUTHORITY:
U.S. Const. amend. VI ................................................. 2
OTHER AUTHORITIES:
ABA, Principles for Juries and Jury Trials
(Aug. 2005) ........................................................... 23
Akhil Reed Amar, Reinventing Juries: Ten
Suggested Reforms, 28 U.C. Davis L. Rev.
1169 (1995) ..................................................... 20, 21
4 William Blackstone, Commentaries on
the Laws of England (1769) ....................... 7, 13, 17
3 The Debates in the Several State
Conventions on the Adoption of the
Federal Constitution (Jonathan Elliot ed.,
2d ed. 1891) .......................................................... 18
The Declaration of Independence
(U.S. 1776) .............................................................. 8
Shari Seidman Diamond et al., Achieving
Diversity on the Jury: Jury Size and the
Peremptory Challenge, 6 J. Empirical
Legal Stud. 425 (2009) ......................................... 24
vii
TABLE OF AUTHORITIES—Continued
Page
Leslie Ellis & Shari Seidman Diamond, Race,
Diversity, and Jury Composition: Battering
and Bolstering Legitimacy,
78 Chi.-Kent L. Rev. 1033 (2003) ........................ 15
Steven A. Engel, The Public’s Vicinage Right:
A Constitutional Argument, 75 N.Y.U. L. Rev.
1658 (2000) ............................................................. 8
Sir John Fortescue, Sir John Fortescue’s
Commendation of the Laws of England:
The Translation into English of De
Laudibus Legum Angliæ (Francis Grigor
trans., Sweet & Maxwell 1917) ....................... 7, 17
John Gastil et al., Jury Service and Electoral
Participation: A Test of the Participation
Hypothesis, 70 J. Pol. 351 (2008) ......................... 16
Valerie P. Hans & Neil Vidmar, Jury Selection,
in The Psychology of the Courtroom (Norbert
L. Kerr & Robert M. Bray eds., 1982) ................. 16
Patrick E. Higginbotham, Lee H. Rosenthal
& Steven S. Gensler, Better By the Dozen:
Bringing Back the Twelve-Person Civil Jury,
104 Judicature 47 (2020) ................... 15, 24, 26, 27
1 Journals of the Continental Congress
1774–1789 (Worthington Chauncey
Ford ed., 1904) ....................................................... 8
Richard O. Lempert, Uncovering “Nondiscernible”
Differences: Empirical Research and
the Jury-Size Cases, 73 Mich. L.
Rev. 643 (1975) ............................................... 14, 25
viii
TABLE OF AUTHORITIES—Continued
Page
Letter from Clarendon to William Pym
(Jan. 27, 1766), in 1 Papers of John
Adams 164 (Robert J. Taylor ed., 1977) ................ 7
Letter from Thomas Jefferson to Thomas Paine
(1789), quoted in 3 The Writings of Thomas
Jefferson (Andrew A. Lipscomb ed., 1903) ............ 7
1 Letters of Delegates to Congress, 1774–1789
(Paul H. Smith ed., 1976) ...................................... 8
E. Allan Lind & Tom R. Tyler, The Social
Psychology of Procedural Justice (1988) ............. 16
Robert J. MacCoun & Tom R. Tyler, The
Basis of Citizens’ Perceptions of the Criminal
Jury, 12 L. & Hum. Behav. 333 (1988) ............... 15
Robert H. Miller, Six of One Is Not a Dozen of
the Other: A Re-Examination of Williams v.
Florida and the Size of State Criminal
Juries, 146 U. Pa. L. Rev. 621 (1998) ...... 24, 25, 27
Michael J. Saks & Mollie Weighner Marti, A MetaAnalysis of the Effects of Jury Size, 21 Law
& Hum. Behav. 451 (1997) ........................ 3, 23, 24
Alisa Smith & Michael J. Saks, In Honor of
Walter O. Weyrauch: The Case for Overturning
Williams v. Florida and the Six-Person Jury:
History, Law, and Empirical Evidence,
60 Fla. L. Rev. 441 (2008) .................................... 23
Samuel R. Sommers, On Racial Diversity and
Group Decision Making: Identifying Multiple
Effects of Racial Composition on Jury
Deliberations, 90 J. Personality & Soc. Psych.
597 (2006) ............................................................. 14
ix
TABLE OF AUTHORITIES—Continued
Page
2 Joseph Story, Commentaries on the
Constitution of the United States (Boston,
Little, Brown & Co. 1891) .................................... 18
Wanling Su & Rahul Goravara, What Is a
Jury?, 103 N.C. L. Rev. 969 (2025)................ 18–20
Cass R. Sunstein, The Law of Group
Polarization (John M. Olin Program
L. & Econ., Working Paper No. 91, 1999) ........... 14
John William Wertheimer, Race and the Law
in South Carolina: From Slavery to Jim
Crow (2023) .......................................................... 19
Hans Zeisel, And Then There Were None: The
Diminution of the Federal Jury,
38 U. Chi. L. Rev. 710 (1971)................... 22, 23, 25
Hans Zeisel & Shari Seidman Diamond,
Convincing Empirical Evidence, 41 U. Chi. L.
Rev. 281 (1974) ..................................................... 23
IN THE
Supreme Court of the United States
_________
No. 25-6623
_________
HAMED KIAN,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
_________
On Writ of Certiorari to the
District Court of Appeal of Florida,
Fourth District
_________
BRIEF FOR THE JUROR PROJECT AS
AMICUS CURIAE IN SUPPORT OF PETITIONER
_________
STATEMENT OF INTEREST
The Juror Project submits this brief as amicus curiae in support of Petitioner.1
The Juror Project is a Louisiana nonprofit corporation that advocates for representative juries, including diversity of race, thought, experience, and socioeconomic background, as an imperative to achieving fair
outcomes in the criminal justice system. The Juror
Project aims to ensure juries better represent the
American population through community and public
1
No party or counsel for a party authored this brief in whole or
in part. No party, counsel for a party, or person other than amicus curiae or its counsel made any monetary contribution intended to fund the preparation or submission of this brief.
(1)
2
education about the importance of jury service, technical assistance for jury administrators, and special
litigation targeting discriminatory jury selection practices.
INTRODUCTION AND SUMMARY
OF ARGUMENT
The Sixth Amendment guarantees that, “[i]n all
criminal prosecutions, the accused shall enjoy the
right to *** an impartial jury of the State and district
wherein the crime shall have been committed.” U.S.
Const. amend. VI. This jury trial right includes three
interrelated protections: The jury must reach a unanimous verdict. Ramos v. Louisiana, 590 U.S. 83, 90
(2020). The jury must be a constitutionally adequate
size. Ballew v. Georgia, 435 U.S. 223, 232–237 (1978).
And the jury must be drawn from a pool that represents a fair cross-section of the community. Taylor v.
Louisiana, 419 U.S. 522, 537 (1975).
In Williams v. Florida, 399 U.S. 78 (1970), this
Court held that a 12-member panel “is not a necessary
ingredient” of the right to trial by jury. Id. at 86. The
Court conceded that the Framers “may well” have had
“the usual expectation *** that the jury would consist
of 12” members. 399 U.S. at 98–99. But the Court
claimed that such “purely historical considerations”
are not dispositive. Id. at 99. The Court instead took
a “function[al]” approach, reasoning that “the essential feature” of a jury is the reliance on the “commonsense judgment of a group of laymen” with
“shared responsibility” for the verdict. Id. at 100–101.
Because the Court believed that this function could be
served by smaller juries, the Court concluded that the
Sixth Amendment does not require a 12-member
panel. Id.
3
Williams was wrongly decided. Williams’s rejection of “historical considerations” was already foreclosed by precedent when Williams was decided, and
has been repudiated since. This Court acknowledged
long ago that “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). And this
Court has recently reaffirmed that the Sixth Amendment’s scope is determined by its “original public
meaning.” Ramos, 590 U.S. at 92. Williams’s functional analysis was also wrong. Larger juries engage
in “more substantive deliberation: the sharing of more
facts, more ideas, and more challenges to the tentative
conclusions of others,” and ultimately render more accurate verdicts. Michael J. Saks & Mollie Weighner
Marti, A Meta-Analysis of the Effects of Jury Size, 21
Law & Hum. Behav. 451, 458 (1997).
Worse, Williams’s error threatens and undermines
the other rights guaranteed by the Sixth Amendment,
including the fair-cross-section requirement. The faircross-section requirement—much like the requirement that the jury be composed of 12 members—“is
derived from the traditional understanding of how an
‘impartial jury’ is assembled.” Holland v. Illinois, 493
U.S. 474, 480 (1990) (Scalia, J.). That historical tradition calls for a jury drawn from “every stratum of society”—rich and poor, young and old, from “business
executives” to “bricklayers” and everything in between. Thiel v. Southern Pac. Co., 328 U.S. 217, 219–
222 (1946). But the smaller a jury becomes, the less
likely it is to achieve the “broad representative character” that ensures “a diffused impartiality.” Taylor,
419 U.S. at 530 (citation omitted).
4
The Court should overrule Williams and restore the
Sixth Amendment to its original meaning. The Williams Court was wrong about the historical foundation of and the function served by a 12-member jury.
And it was wrong in a way that disserves the faircross-section requirement. The various components of
the Sixth Amendment’s jury trial right are mutually
reinforcing: together, they enable the jury to supply
the “commonsense judgment of the community” as a
check on the State. Taylor, 419 U.S. at 530. An unrepresentative jury does not speak with the community’s
voice. A nonunanimous jury does not reflect the community’s judgment. And a jury of fewer than 12 undermines the purposes of the other two requirements—narrowing the perspectives in the room and
discouraging thorough deliberation.
A jury is—and for centuries has been—a body of
twelve people chosen from a pool reflecting a fair
cross-section of the community who reach a unanimous conclusion about the accused’s guilt. That understanding predates the Founding, was confirmed by
the Framers, and has been vindicated by modern empirical research. Williams is “not just wrong”—it is
“egregiously wrong.” Ramos, 590 U.S. at 121 (Kavanaugh, J., concurring in part). It is time to correct
that error.
ARGUMENT
I.
A JURY DRAWN FROM A FAIR CROSSSECTION OF THE COMMUNITY IS
FUNDAMENTAL
TO
THE
SIXTH
AMENDMENT JURY-TRIAL RIGHT.
The Sixth Amendment guarantees the defendant in
a criminal prosecution the right to trial by a fair and
5
impartial jury. Duncan v. Louisiana, 391 U.S. 145,
149 (1968). From the earliest days of this nation,
Americans have understood that an impartial jury—
representative of the community and drawn from
one’s peers—is essential to American liberty and democracy.
A.
The
Fair-Cross-Section
Requirement
Ensures That a Jury Is Chosen From a
Pool Representative of the Community.
“[T]he American concept of the jury trial contemplates a jury drawn from a fair cross section of the
community.” Taylor, 419 U.S. at 527. To ensure fairness and impartiality, the jury must be “a body that is
truly representative of the community *** and not the
organ of any special group or class.” Id. (citation and
quotation marks omitted).
States do have some “leeway in application;” they
“remain free to prescribe relevant qualifications for
their jurors and to provide reasonable exemptions so
long as it may be fairly said that the jury lists or panels are representative of the community.” Id. at 538.
For example, while “petit juries must be drawn from
a source fairly representative of the community,”
there is “no requirement that petit juries actually chosen” reflect precisely “the distinctive groups in the
population.” Id. Thus, “[d]efendants are not entitled to
a jury of any particular composition,” “but the jury
wheels, pools of names, [and] panels, or venires from
which juries are drawn must not systematically exclude distinctive groups in the community and
thereby fail to be reasonably representative thereof.”
Id. The jury venire is not constitutionally required to
precisely mirror the community. Swain v. Alabama,
380 U.S. 202, 208 (1965).
6
What states cannot do is “open the door to class distinctions and discriminations which are abhorrent to
the democratic ideals of trial by jury.” Thiel, 328 U.S.
at 220. “[T]he exclusion from jury service of otherwise
qualified groups is in direct opposition to our fundamental democratic concepts and ideals of representative government” because “the established tradition”
is that “juries [serve] as instruments of public justice
*** [and must] be a body truly representative of the
community.” Smith v. Texas, 311 U.S. 128, 130 (1940).
The Sixth Amendment guarantee is not protected “if
the jury pool is made up of only special segments of
the populace or if large, distinctive groups are excluded from the pool.” Taylor, 419 U.S. at 530.
These principles reflect the simple truth that each
juror brings “their own perspectives and values that
influence both jury deliberation and result.” Id. at 532
n.12. So, a “broad[ly] representative” jury ensures “a
diffused impartiality.” Id. at 530 (citation omitted). An
unrepresentative jury, on the other hand, denies a defendant “the benefit of the common-sense judgment of
the community” that “guard[s] against the exercise of
arbitrary power” and “hedge[s] against the overzealous or mistaken prosecutor.” Lockhart v. McCree, 476
U.S. 162, 174–175 (1986) (citation omitted).
B.
The
Fair-Cross-Section
Requirement
Reflects the Centuries-Old Understanding
That a Jury Must Be Drawn from the
Defendant’s Peers and Neighbors.
1. “[T]he jury’s historic role,” this Court has explained, is to serve “as a bulwark between the State
and the accused.” Southern Union Co. v. United
States, 567 U.S. 343, 350 (2012). The Framers were
adamant on this point.
7
John Adams declared that “[r]epresentative government and trial by jury are the heart and lungs of liberty.” Letter from Clarendon to William Pym (Jan. 27,
1766), in 1 Papers of John Adams 164, 169 (Robert J.
Taylor ed., 1977). “Without them we have no other fortification against being ridden like horses, fleeced like
sheep, worked like cattle, and fed and clothed like
swine and hounds.” Id.
Thomas Jefferson, too, saw a trial by jury as “the
only anchor *** by which a government can be held to
the principles of its constitution.” Letter from Thomas
Jefferson to Thomas Paine (1789), quoted in 3 The
Writings of Thomas Jefferson 71 (Andrew A. Lipscomb ed., 1903).
2. Consistent with its function as a bulwark against
government overreach, the jury has long been understood to require a body of twelve people fairly chosen
from the defendant’s peers and neighbors. “[I]n the
words of Magna Charta,” “ ‘[n]o freeman ought to be
*** deprived of his life, liberty or property, but by the
judgment of his peers.’ ” Bank of Columbia v. Okely,
17 U.S. 235, 241 (1819). In the Fifteenth Century,
John Fortescue, Chief Justice of the King’s Bench,
stated that a jury must comprise “good and lawful
men of the neighbourhood, where the fact is supposed,
who stand in no relation to either of the parties.” Sir
John Fortescue, Sir John Fortescue’s Commendation
of the Laws of England: The Translation into English
of De Laudibus Legum Angliæ 38 (Francis Grigor
trans., Sweet & Maxwell 1917). Blackstone similarly
explained centuries later that a jury must be drawn
from the defendant’s “equals and neighbours, indifferently chosen.” 4 William Blackstone, Commentaries
on the Laws of England *343 (1769).
8
Carrying that tradition to the American colonies, the
First Continental Congress declared that the colonists
were entitled to the “great and inestimable privilege
of being tried by their peers of the vicinage.” 1 Journals of the Continental Congress 1774–1789, at 69
(Worthington Chauncey Ford ed., 1904). Thus, one
member explained, “neither Life, Liberty, or property
can be taken from the [defendant], until twelve of his
unexceptional Countrymen and Peers” reach a verdict. 1 Letters of Delegates to Congress, 1774–1789, at
236, 238 (Paul H. Smith ed., 1976) (Statement of John
Dickinson).
Indeed, the denial of trial by a jury of one’s peers was
among the Founders’ core grievances against King
George III. See Steven A. Engel, The Public’s Vicinage
Right: A Constitutional Argument, 75 N.Y.U. L. Rev.
1658, 1680–81 (2000). The Crown sought to circumvent colonial juries by transporting defendants accused of crimes in the colonies to England to stand
trial before English jurors. Id. The Founding generation was “well aware that an English jury was not the
same thing as a Boston jury” because “the English
jury would be more likely to acquit an accused redcoat
or convict an accused patriot.” Id. at 1695. The signers
of the Declaration of Independence accordingly
charged the King with “depriving us, in many cases,
of the benefits of trial by jury” and “transporting us
beyond seas to be tried for pretended offences.” The
Declaration of Independence paras. 20–21 (U.S.
1776).
And as this Court repeatedly recognized shortly after the founding, that right to a trial by one’s peers
formed part of the jury-trial right enshrined in the
Constitution. For example, when the Territory of Iowa
9
enacted a law requiring “the court, and not a jury,” to
adjudicate certain offenses, this Court held that the
law violated the Sixth Amendment. See Webster v.
Reid, 52 U.S. 437, 439, 455 (1850). As the Court explained, “[t]he words ‘trial by jury’ and ‘judgment of
his peers’ would seem to be nearly equivalent in meaning.” Id. at 455. A statute depriving a defendant of a
trial by his peers “jeopardize[d] *** the integrity of the
trial by jury,” was “absolutely irreconcilable” with the
Sixth Amendment, and “ought to be *** condemned.”
Id. at 453–454; see also, e.g., Pope Mfg. Co. v. Gormully, 144 U.S. 224, 234 (1892) (describing as “fundamental” a defendant’s “right to be tried by a jury of his
peers”).
C.
The Fair-Cross-Section Requirement Is a
Cornerstone of This Court’s Sixth
Amendment Jurisprudence.
This Court’s fair-cross-section precedent rests on a
simple premise: to serve as an impartial check on the
State, a jury must be drawn from—and representative
of—the whole community, not favored segments of it.
Taylor v. Louisiana, 419 U.S. 522 (1975), is the
Court’s landmark Sixth Amendment decision applying that principle, building on a century of jurisprudence recognizing that representative juries are essential to the jury’s constitutional function.
1. In Taylor, the Court held unconstitutional a state
law providing that a woman was ineligible for jury
service unless she had previously filed a written declaration stating her desire to serve. 419 U.S. at 525.
Consistent with centuries of tradition, the Court held
that “the selection of a petit jury from a representative
cross section of the community is an essential component of the Sixth Amendment right to a jury trial.” Id.
10
at 530. “The purpose of a jury,” after all, “is to guard
against the exercise of arbitrary power—to make
available the commonsense judgment of the community as a hedge against the overzealous or mistaken
prosecutor and in preference to the professional or
perhaps overconditioned or biased response of a
judge.” Id. at 530. But “[t]his prophylactic vehicle”
fails “if the jury pool is made up of only special segments of the populace.” Id.
2. That understanding did not begin in 1975. Nearly
one century earlier, during Reconstruction, this Court
held in Strauder v. West Virginia that the Constitution bars the government from excluding a person
from a jury on account of his race. 100 U.S. 303, 307–
308 (1879). “The very idea of a jury,” the Court explained, “is a body of men composed of the peers or
equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows,
associates, persons having the same legal status in society as that which he holds.” Id. at 308. The Court
therefore concluded that a state “deni[es]” a black defendant “equal legal protection,” when it requires him
to “submit to a trial for his life by a jury drawn from a
panel from which the State has expressly excluded
every man of his race, because of color alone, however
well qualified in other respects.” Id. at 309.
Although Strauder’s analysis was grounded in the
Fourteenth Amendment’s Equal Protection Clause,
after Reconstruction, the Court issued several decisions confirming that the Sixth Amendment’s faircross-section requirement similarly guards against
that form of discrimination, and many others.
In Smith v. Texas, the Court reversed the conviction
of a black defendant prosecuted in a county in which
11
less than 2% of grand jurors selected in the prior seven
years had been black. 311 U.S. at 129. The Court
found it “inescapable” that the county had engaged “in
racial discrimination” “result[ing] in the exclusion
from jury service of otherwise qualified groups.” Id. at
130. Although the Court cited and discussed the Equal
Protection Clause, the Court also rooted its reasoning
in “the established tradition in the use of juries as instruments of public justice that the jury be a body
truly representative of the community.” Id. (emphasis
added).
A few years later, in Glasser v. United States, the
Court reaffirmed that juries must be chosen in ways
that “comport with the concept of the jury as a crosssection of the community” and “insure a trial by a representative group.” 315 U.S. 60, 85–86 (1942) (citing
Smith, 311 U.S. at 130). There, defendants argued
“they were denied an impartial trial because of the alleged exclusion from the petit jury panel of all women
not members of the Illinois League of Women Voters.”
Id. at 83. The Court explained that “the proper functioning of *** our democracy itself[] requires that the
jury be truly representative of the community.” Id. at
86 (quotation marks omitted). The Court thus would
have been “compelled to set aside” the defendants’
convictions; it declined to do so only because they had
“fail[ed] *** to prove their contention” that women
were excluded from jury service in the manner alleged. Id. at 87.
Building on those principles, the Court in Thiel v.
Southern Pacific Company reversed a jury verdict
from a federal district court in which the clerk had a
policy of “exclud[ing] from the jury lists all persons
who work for a daily wage.” 328 U.S. at 221. Wage
12
earners were more likely to be unable to miss work for
jury service, so the clerk “excluded ‘all the iron craft,
bricklayers, carpenters, and machinists,’ ” such that
“business men and their wives constituted at least
50% of the jury lists.” Id. at 222. The Court held this
arrangement incompatible with “[t]he American tradition of trial by jury,” which “necessarily contemplates an impartial jury drawn from a cross-section of
the community.” Id. at 220. “One who is paid $3 a day
may be as fully competent [to serve on a jury] as one
who is paid $30 a week or $300 a month.” Id. at 223.
So wage earners “cannot be intentionally and systematically excluded *** without doing violence to the
democratic nature of the jury system.” Id. The Court
thus “refuse[d]” to “breathe life into any latent tendencies to establish the jury as the instrument of the economically and socially privileged.” Id. at 224.
3. As this Court has recognized and reaffirmed in
more modern cases, its holdings in fair-cross-section
cases derive from the Sixth Amendment’s original
meaning.
For example, in Holland v. Illinois, Justice Scalia,
writing for the Court, explained that the fair-crosssection requirement is “not explicit in the text” of the
Sixth Amendment, “but is derived from the traditional
understanding of how an ‘impartial jury’ is assembled.” 493 U.S. at 480 (emphasis added). “That traditional understanding includes a representative venire, so that the jury will be *** ‘drawn from a fair
cross section of the community.’ ” Id. (quoting Taylor,
419 U.S. at 527) (emphasis omitted). The fair-crosssection requirement serves the goal of impartiality because it prevents the government from drawing up
“jury lists in such manner as to produce a pool of
13
prospective jurors disproportionately ill disposed towards one or all classes of defendants.” Id.
And in Ramos v. Louisiana, Justice Gorsuch, writing for the Court, similarly recognized that the scope
of the Sixth Amendment jury trial right is defined by
its “original public meaning,” and “the Sixth Amendment’s promise of a jury of one’s peers means a jury
selected from a representative cross section of the entire community.” 590 U.S. at 90, 100 n.47 (citing
Strauder, 100 U.S. at 307–308; Smith, 311 U.S. at
130; Taylor, 419 U.S. at 527); see also, e.g., Ramos, 590
U.S. at 90 (noting Blackstone’s view 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.”’) (quoting 4 William Blackstone, Commentaries
*343).
D.
The
Fair-Cross-Section
Requirement
Supports the Impartiality of the Criminal
Justice System.
1. Representative Juries Deliberate More
Thoroughly and Reach More Reliable
Verdicts.
The wisdom of centuries has shown that the faircross-section requirement “guards against the exercise of arbitrary power” and ensures that the community will serve as a check “against the overzealous or
mistaken prosecutor.” Lockhart, 476 U.S. at 174
(quoting Taylor, 419 U.S. at 530) (quotation marks
omitted). “Those eligible for jury service are to be
found in every stratum of society.” Thiel, 328 U.S. at
220. And the diversity of experience within our society
strengthens the jury’s ability to perform its fact-finding function. See Taylor, 419 U.S. at 530 (emphasizing
14
the value of the “commonsense judgment of the community as a hedge against” the “exercise of arbitrary
power”).
Modern empirical evidence confirms that homogeneous juries render less-reliable verdicts. Group deliberation leads to better outcomes when “competing views
are stated and exchanged.” Cass R. Sunstein, The Law
of Group Polarization, John M. Olin Program L. &
Econ. Working Paper No. 91, at 3 (1999). But homogenous juries are less likely to weigh competing
views—studies show that they deliberate for shorter
periods and consider fewer facts. Samuel R. Sommers,
On Racial Diversity and Group Decision Making:
Identifying Multiple Effects of Racial Composition on
Jury Deliberations, 90 J. Personality & Soc. Psych.
597, 604–605 (2006). As a result, they are more susceptible to individual jurors’ biases and their decisions
less consistently “reflect the decisions that would prevail if the entire community could judge the trial for
itself.” Richard O. Lempert, Uncovering “Nondiscernible” Differences: Empirical Research and the JurySize Cases, 73 Mich. L. Rev. 643, 679, 681–683 (1975).
The fair-cross-section requirement supports the critical governmental interest in impartial jury verdicts
by counteracting these biases. When individuals deliberate in heterogeneous groups, their biases are
counterbalanced and they are “forced to become more
objective.” Id. at 687. Heterogenous juries spend more
time discussing facts and are more likely to correct inaccurate factual statements. Sommers, supra, at 605.
And even before any deliberation, the mere presence
of diversity prompts jurors to confront their own biases. Id. at 607. A juror with a minority view is also
more likely to find an ally on a heterogeneous jury,
15
and “[w]ith even a single ally, they are much less
likely to cave to the group.” Patrick E. Higginbotham,
Lee H. Rosenthal & Steven S. Gensler, Better By the
Dozen: Bringing Back the Twelve-Person Civil Jury,
104 Judicature 47, 53 (2020).
2. Representative Juries Bolster Public
Confidence in Criminal Verdicts and the
Criminal Justice System.
The fair-cross-section requirement also furthers the
participatory aims of representative democracy. The
absence from jury service of distinct groups is “at war
with our basic concepts of a democratic society and a
representative government.” Smith, 311 U.S. at 130.
The fair-cross-section requirement “preserv[es] ‘public confidence in the fairness of the criminal justice
system,’ and *** implement[s] our belief that ‘sharing
in the administration of justice is a phase of civic responsibility.’ ” Lockhart, 476 U.S. at 174–175 (quoting
Taylor, 419 U.S. at 530–531).
Representative juries bolster confidence in the procedural fairness of the criminal justice system. Leslie
Ellis & Shari Seidman Diamond, Race, Diversity, and
Jury Composition: Battering and Bolstering Legitimacy, 78 Chi.-Kent L. Rev. 1033, 1043–48 (2003). Empirical evidence shows that juries representing a fair
cross-section of the community are perceived as less
biased and therefore more legitimate. E.g., id.; Robert
J. MacCoun & Tom R. Tyler, The Basis of Citizens’
Perceptions of the Criminal Jury, 12 L. & Hum. Behav. 333, 346–347 (1988).
Drawing jurors from a fair cross-section of the community “deprives the State of the ability to ‘stack the
deck’ in its favor.” Holland, 493 U.S. at 480–481. Otherwise, the State could “draw up jury lists in such
16
manner as to produce a pool of prospective jurors disproportionately ill disposed towards one or all classes
of defendants.” Id. at 480; accord United States v. Grisham, 63 F.3d 1074, 1078 (11th Cir. 1995).
Representative juries are also critical to the perceived legitimacy of the justice system because juries
are the community’s voice in decision making. E. Allan Lind & Tom R. Tyler, The Social Psychology of
Procedural Justice 90 (1988). When juries do not reflect the composition of the community, their verdicts
are “not perceived as a legitimate expression of the
community’s sentiments.” Valerie P. Hans & Neil Vidmar, Jury Selection, in The Psychology of the Courtroom 39, 43–44 (Norbert L. Kerr & Robert M. Bray
eds., 1982).
Indeed, when minority groups perceive juries as
non-representative, they self-select out of participating in the system. Hans & Vidmar, supra, at 43–44.
On the other hand, serving on a jury increases “the
likelihood of civic or political participa[tion] in other
settings”—for example, jury service is linked to higher
voting rates. John Gastil et al., Jury Service and Electoral Participation: A Test of the Participation Hypothesis, 70 J. Pol. 351, 363 (2008). Thus, “the proper functioning of the jury system and *** our democracy” is
rooted in the “jury as a cross-section of the community.” Glasser, 315 U.S. at 85–86.
II.
THE
SIXTH
PROTECTIONS
REINFORCING.
ARE
AMENDMENT’S
MUTUALLY
For centuries before Williams v. Florida, 399 U.S.
78 (1970), a “jury” meant a body of twelve people fairly
drawn from the defendant’s community who were
17
charged with reaching a unanimous decision about
the defendant’s guilt. Those characteristics were fundamental to the jury-trial right the Framers enshrined in the Sixth Amendment. And until Williams,
panels lacking these characteristics were permitted to
adjudicate a defendant’s guilt only where the defendant had no jury right at all. Erosion of any one of these
components of the Sixth Amendment’s jury trial right
undermines the others.
A.
The 12-Member Requirement—Like The
Fair-Cross-Section
and
UnanimousVerdict Requirements—Forms Part Of
The Sixth Amendment Jury-Trial Right.
1. At The Founding, A “Jury” Meant A Body Of
Twelve Selected From Among The
Defendant’s Peers Who Reached A
Unanimous Verdict.
Many of the same sources that confirm the faircross-section requirement’s and the unanimity requirement’s historical roots also reference the 12member requirement. For example, the Chief Justice
of the King’s Bench described a jury as “twelve men”
who are “neighbours where the fact was committed.”
Fortescue, supra, at 46 (emphasis added). Decades before the Founding, Blackstone explained that a “trial
by jury” includes “the unanimous suffrage of twelve of
[the defendant’s] equals and neighbours, indifferently
chosen, and superior to all suspicion.” 4 William
Blackstone, Commentaries *343 (emphases added). In
Blackstone’s view, unanimity, numerosity, and representation were each pillars of the jury trial right.
Joseph Story similarly tied these three concepts together. When he explained that America’s forebears
“brought this great privilege” of the jury trial right
18
“with them, as their birthright and inheritance,” 2 Joseph Story, Commentaries on the Constitution of the
United States § 1779, at 559 (Boston, Little, Brown &
Co. 1891), he also noted that these forebears “understood” the jury right as a right to “a trial by a jury of
twelve men, impartially selected, who must unanimously concur in the guilt of the accused before a legal
conviction can be had,” id. at 559 n.2 (emphases
added).
“One indication of public meaning at ratification is
remarks made during the state conventions on adoption of the federal Constitution,” where attendees
spoke of the jury trial right in connection with unanimity, numerosity, and representation. Wanling Su
& Rahul Goravara, What Is a Jury?, 103 N.C. L. Rev.
969, 991 (2025). For example, Virginia Governor Patrick Henry stated at the Virginia ratifying convention
that “trial by jury” is “an excellent mode of trial” in
which “[t]he unanimous verdict of twelve impartial
men cannot be reversed.” Id. (quoting 3 The Debates
in the Several State Conventions on the Adoption of the
Federal Constitution 544 (Jonathan Elliot ed., 2d ed.
1891)) (emphases added).
Early American courts were in accord. “The trial by
jury,” one court reasoned, “shall be forever inviolably
preserved” as a body of “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 (Ct. Com. Pl. 1794). “Diminishing the
number,” the Ohio Supreme Court warned, “impairs
the right, lessens the security of the accused, and increases the danger of conviction.” Work v. State, 2
Ohio St. 296, 305 (1853). And “[i]f corruption or prejudice are to be feared and avoided, they are much
19
more likely to influence the conduct of six [jurors]
than of twelve.” Id.
2. In Early America, Panels Of Fewer Than
Twelve, Not Fairly Drawn From The
Community, And Not Required To Reach A
Unanimous Verdict, Were Permitted Only
Where The Defendant Had No Jury Trial
Right At All.
The few contexts in which early American law tolerated adjudication of guilt by fewer than twelve—and
by a body not fairly drawn from the community or not
reaching a unanimous verdict—are telling.
In early South Carolina, for instance, enslaved people were tried in the “Courts of Magistrates and Freeholders”—colloquially, “slave courts”—before panels
of five or fewer. Su & Goravara, supra, at 987. Proceedings in slave courts “were uniformly described as
non-jury trials.” Id. And because slave courts did not
involve juries, the panelists did not have to be fairly
drawn from the community either; they could instead
be selected “from a single family or neighborhood.” Id.
at 989 (quoting John William Wertheimer, Race and
the Law in South Carolina: From Slavery to Jim Crow
56 (2023)).
As one South Carolina court explained, the words
“trial by jury” in the South Carolina Constitution
meant “trial by twelve good and lawful men of the vicinage,” and trial by fewer than twelve was “not a trial
by jury, in any sense in which the words have ever
been legally used.” State ex rel. Kohne v. Simons, 29
S.C.L. (2 Speers) 761, 768 (S.C. Ct. Err. 1844). Nor
“could a judgment pronounced by” a slave court “be
regarded as the judgment of [the defendant’s] peers.”
Id. Such a procedure was permissible for enslaved
20
persons only because they did not “fall within the inhibition of the Constitution.” Id.
3. As The American Constitutional Community
Expanded, So Too Did The Understanding
Of What A Representative Jury Pool
Required.
States have changed their practices as they expanded their understanding of their own political
communities.
For example, before the Revolution, North Carolina
tried enslaved people in slave courts before panels of
four. See An Act Concerning Servants and Slaves, ch.
24, § 48, reprinted in Acts of the North Carolina General Assembly, 1741, 23 Colonial & St. Recs. N.C. 191,
202. But after the Framing, the North Carolina legislature changed course, extending to enslaved persons
the right to a “trial by jury” and, accordingly, raising
the number of factfinders required from four to
twelve. See An Act to Extend the Right of Trial by Jury
to Slaves, ch. 5, 1793 N.C. Sess. Laws 38. The change
“ensured that the verdict rendered would more accurately reflect community values, rather than those of
outliers.” Su & Goravara, supra, at 989–990.
Similarly, “at points and places in our history,
women were not permitted to sit on juries.” Ramos,
590 U.S. at 100 n.47. But “the people themselves
adopted further constitutional amendments that prohibit invidious discrimination.” Id. So today, the jurytrial right protects all Americans—and requires “a
jury selected from a representative cross section of the
entire community.” Id. (emphasis added).
Put another way, in 1791, a “jury meant ‘twelve
men, good and true.’ ” Akhil Reed Amar, Reinventing
Juries: Ten Suggested Reforms, 28 U.C. Davis L. Rev.
21
1169, 1187–88 (1995). But today, “in light of the Fifteenth, Nineteenth, Twenty-Fourth, and TwentySixth Amendments,” “‘men’ must include women, too,
and ‘good and true’ jurors include the black, the poor,
and the young. But twelve should still mean twelve.”
Id. A six-person jury does not formally exclude the
groups once omitted from the jury box, but it does reduce the likelihood that the jury will reflect the full
range of perspectives in the community.
B.
The 12-Member Requirement Promotes
the Jury’s Representative Function.
1. In Williams, this Court held that the Sixth
Amendment does not require a jury in a criminal trial
to consist of 12 members. 399 U.S. at 102. The petitioner there had been convicted in state court of robbery by a six-member jury. Id. at 86. He argued that
he had been denied his right to a “trial by jury” under
the Sixth Amendment because the Florida court had
not empaneled 12 jurors. Id. This Court rejected that
argument. Id. at 102.
The Court’s reasoning in Williams turned primarily
on the Court’s understanding of “the function that the
particular feature performs and its relation to the purposes of the jury trial.” Id. at 99–100. And, in considering the function of the jury’s size, the Court seized
on several functions of the numerosity requirement
that are also served by the fair cross-section component
of the jury trial right: the Court observed that “the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the
community participation and shared responsibility
that results from that group’s determination of guilt
or innocence.” Id. at 100.
22
Because “[t]he performance of this role is not a function of the particular number of the body that makes
up the jury,” id., the Williams Court concluded that
“the fact that the jury at common law was composed
of precisely 12 is a historical accident, unnecessary to
effect the purposes of the jury system and wholly without significance ‘except to mystics,’ ” id. at 102 (quoting Duncan, 391 U.S. at 182 (Harlan, J., dissenting)).
And though the Court admitted that empirical evidence was limited, it said that “[w]hat few experiments have occurred—usually in the civil area—indicate that there is no discernible difference between
the results reached by the two different-sized juries.”
Id. at 102.
2. The Williams Court was wrong about the function
served by a 12-member jury. And it was wrong in a
way that disserves the fair-cross-section requirement,
too.
Today, a mountain of empirical evidence shows that
twelve-person juries represent the community far better than six-person juries do. This evidence refutes
Williams’s speculation that “the difference between
the 12-man and the six-man jury in terms of the crosssection of the community represented seems likely to
be negligible.” 399 U.S. at 101–102. And it contradicts
Williams’s conclusion that the twelve-juror requirement is a “historical accident.” Id. at 89–90.
Rather, the data confirms ancient tradition: Twelve
is “the number that optimizes the jury’s two conflicting goals—to represent the community and remain
manageable.” Hans Zeisel, And Then There Were
None: The Diminution of the Federal Jury, 38 U. Chi.
L. Rev. 710, 712 (1971). The flaws in Williams’s empirical
analysis—or
its
lack
thereof—were
23
immediately and extensively documented. Supra pp.
13–16; see also, e.g., Hans Zeisel & Shari Seidman Diamond, Convincing Empirical Evidence, 41 U. Chi. L.
Rev. 281, 281–295 (1974); ABA, Principles for Juries
and Jury Trials 5 (Aug. 2005).
To start, researchers have explained that six-person
juries are mathematically less likely to faithfully represent a cross-section of the community. Suppose a
minority group makes up 10% of a community. If a sixperson panel is randomly drawn from that community, there is a 53% chance that the panel will not include a single member of the minority group. Zeisel,
supra, at 716. By contrast, there is only a 28% chance
that a twelve-person jury will not include a member of
the minority group. Those numbers are a matter of
basic probability; the same mathematics as rolling a
ten-sided die and calling ten—the more times you roll
the die, the more likely it is to come up ten.
The same principle applies for every subgroup in a
community. Thus, 12-person juries are mathematically more likely to contain “populations of any given
stratification.” Alisa Smith & Michael J. Saks, In
Honor of Walter O. Weyrauch: The Case for Overturning Williams v. Florida and the Six-Person Jury: History, Law, and Empirical Evidence, 60 Fla. L. Rev.
441, 458 (2008).
Researchers have tested these mathematical hypotheses through numerous studies, repeatedly confirming that six-person juries are substantially less
likely to include minority groups—and therefore less
likely to represent the community. A 1997 meta-analysis surveyed 17 such studies. Saks & Marti, supra, at
452, 457. The combined data—which included more
than 2,000 jury panels—showed that “the effect of
24
jury size on minority representation is highly significant,” and that “12-person juries are more likely than
6-person juries to contain at least one member of
whatever minority group is under consideration.” Id.
at 457. Some studies showed that “the actual difference in minority representation on twelve- and sixmember juries was even more pronounced than the
[mathematical] sampling theory had suggested.” Robert H. Miller, Six of One Is Not a Dozen of the Other:
A Re-Examination of Williams v. Florida and the Size
of State Criminal Juries, 146 U. Pa. L. Rev. 621, 655
(1998) (emphasis added).
Experts continue to replicate those results. A 2009
study examined 277 jury trials in one community—
Cook County, Illinois—split between six-person and
twelve-person juries. Shari Seidman Diamond et al.,
Achieving Diversity on the Jury: Jury Size and the Peremptory Challenge, 6 J. Empirical Legal Stud. 425,
434 (2009). The jury pool was 25% black, yet “28.1 percent of the six-member juries lacked even one black
juror.” Id. at 435, 442. By contrast, “only 2.1 percent
of the 12-member juries were entirely without black
representation.” Id. at 442.
Other studies confirm that six-person juries perform
poorly along numerous important dimensions. Sixperson juries less faithfully represent the “attitudinal
characteristics” of the community than twelve-person
juries do, Miller, supra, at 666, 674–675, and are more
likely to “return a verdict outside of community
norms,” Higginbotham, Rosenthal & Gensler, supra,
at 52. And their deliberations are of lower quality:
They remember testimony less accurately, recall less
probative information, and rely more on conclusory
statements. Id.; Saks & Marti, supra, at 458–459; see
25
also, e.g., Brown v. Louisiana, 447 U.S. 323, 332
(1980) (op. of Brennan, J.) (collecting “a number of empirical studies” showing that “a decline in jury size
leads to less accurate factfinding and a greater risk of
convicting an innocent person”).
To make matters worse, as the Ballew plurality
warned, these shortcomings disproportionately harm
defendants—the very people the jury-trial right is
supposed to protect. 435 U.S. at 236 (op. of Blackmun,
J.). Six-person juries are less critical of ambiguities in
the prosecution’s case and convict at a higher rate
than twelve-person juries do. Miller, supra, at 671.
They also hang at a lower rate, likely because solo dissenters are less likely to find an ally and persist in
their opposition. Zeisel, supra, at 719–720; Lempert,
supra, at 673–677; cf. Ramos, 590 U.S. at 99 (explaining that a hung jury can represent a jury “deliberating
carefully and safeguarding against overzealous prosecutions”).
III.
THIS COURT
WILLIAMS.
SHOULD
OVERRULE
The Court should overrule Williams and restore the
Sixth Amendment to its original meaning.
1. Williams is out-of-step with the rest of the Court’s
Sixth Amendment jurisprudence. The Sixth Amendment’s scope turns on “the Framers’ paradigm for
criminal justice,” not “whether or to what degree” a
modern jurist thinks a particular feature of that paradigm affects “efficiency or fairness.” Blakely v. Washington, 542 U.S. 296, 313 (2004). Courts should not
“extrapolate from the words of the Sixth Amendment
to the values behind it,” enforcing the Amendment’s
“guarantees only to the extent they serve (in the
courts’ views) those underlying values.” Giles v.
26
California, 554 U.S. 353, 375 (2008). The Williams
Court gave short shrift to history, supra pp. 17–21,
and as a result undersold “the great purposes which
gave rise to the jury,” 399 U.S. at 89–90.
In particular, this Court has hewed closely to the
“traditional understanding of how an ‘impartial jury’
is assembled.” Holland, 493 U.S. at 480. “That traditional understanding includes a representative venire, so that the jury will be *** ‘drawn from a fair
cross section of the community.’ ” Id. (quoting Taylor,
419 U.S. at 527) (emphasis omitted). It includes, too,
the “historical unanimity requirement.” Ramos, 590
U.S. at 107. And it includes—as Williams itself
acknowledged—panels “fixed generally at 12.” 399
U.S. at 89.
But while this Court has required unanimity and a
fair cross-section precisely because those were “historic features of common law jury trials,” Ramos, 590
U.S. at 98, Williams cast aside the 12-juror requirement as a “historical accident,” 399 U.S. at 89–90.
That anomalous conclusion sticks out like a sore
thumb among this Court’s Sixth Amendment cases,
which otherwise honor Constitutional history and tradition.
2. In any event, Williams’s functionalist analysis
was flawed on its own terms. It only hesitantly
acknowledged that a jury “probably” should provide
the “possibility” of a representative cross-section of
the community, id. at 100 (emphases added), when in
fact, the representative-cross-section promise is an essential feature of the traditional right. Supra pp. 6–9.
The “few experiments” the Williams Court cited to
support six-person juries, 399 U.S. at 101, “were not
empirical studies,” Higginbotham, Rosenthal &
27
Gensler, supra, at 52. Instead, they were “conclusory
statements *** supported at best by limited experience and anecdote.” Id.
And we now know that Williams’s speculation about
the function of the jury was mistaken. The “difference
between the 12-man and the six-man jury in terms of
the cross-section of the community represented” is not
“negligible.” Miller, supra, at 655–675. Replicated empirical studies show that “minority representation”
and “community representativeness *** decrease
when six-person juries are used,” and that six-person
juries decide cases “at greater variance from larger
community preferences.” Id. at 682–683.
***
Williams broke from centuries of tradition based on
the assumption that twelve- and six-person juries are
functionally equivalent. 399 U.S. at 101–102. That assumption has been thoroughly debunked. This Court
should fix that mistake, overrule Williams, and restore the Sixth Amendment’s original meaning: A jury
is a body of twelve people fairly chosen from a pool
“reflect[ing] a fair cross-section of the community.”
Smith v. United States, 599 U.S. 236, 245 (2023).
28
CONCLUSION
For the foregoing reasons, the judgment below
should be reversed.
Respectfully submitted,
JO-ANN TAMILA SAGAR
Counsel of Record
ERIC ROYTMAN-CASH
ASHWIN FUJII
HOGAN LOVELLS
CADWALADER US LLP
555 Thirteenth Street, N.W.
Washington, D.C. 20004
(202) 637-5600
jo-ann.sagar@hlc.com
Counsel for Amicus Curiae
AUGUST 2026
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