Amicus Curiae Brief — Hamed Kian, Petitioner v. Florida

NO. 25-6623

IN THE

Supreme Court of the United States

HAMED KIAN,

V.

STATE OF FLORIDA,

Petitioner,

Respondent.

On Writ of Certiorari to the

Fourth District Court of Appeal of Florida

BRIEF AMICUS CURIAE OF THE UTAH

ASSOCIATION OF CRIMINAL DEFENSE

LAWYERS IN SUPPORT OF PETITIONER

Dallas Young

Counsel of Record

UTAH COUNTY PUBLIC

DEFENDER ASSOCIATION

5152 N. Edgewood Dr. Ste. 300

Provo, UT 84604

(801) 852-1070

dallasy@utcpd.com

David Ferguson

Executive Director

UTAH ASSOCIATION OF

CRIMINAL DEFENSE

LAWYERS

10 W. 100 S., Ste. 700

Salt Lake City, UT 84101

Douglas J. Thompson

MORRISE THOMPSON

FORESTA

P.O. Box 1766

825 North 900 West,

Orem, UT 84057

i

TABLE OF CONTENTS

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

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

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

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

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

I. The Jury is the People’s Share in the

Administration of Justice; a Six Member Jury

Halves That Participation...........................................5

II.

The Jury Serves a Counter-Majoritarian

Function; a Smaller Jury Cannot Serve that

Function as Well as a Jury of Twelve.......................11

III.

The Jury System Is Designed to Satisfy

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

Interest, that Justice Is Done; a Small Jury Does Not

Symbolize the Justice-Serving Role of a Jury. .........15

IV.

The States That Seat Smaller Juries Concede

That Twelve Matters, and a Twelve-Juror Floor Is

Workable. ...................................................................19

CONCLUSION ..........................................................21

ii

TABLE OF AUTHORITIES

Cases

Balzac v. Porto Rico, 258 U.S. 298 (1922) ..................7

Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90

L. Ed. 2d 69 (1986) ........................................10, 11

Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444,

20 L. Ed. 2d 491 (1968) .........................................8

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

120 L. Ed. 2d 33 (1992) .......................................10

Hudson v. Adams’ Adm’r, 49 S.W. 192 (Ky. 1899).....8

Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639 (1961) .13

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

(1979) ...................................................................15

Mu’Min v. Virginia, 500 U.S. 415, 111 S. Ct. 1899

(1991) ...................................................................13

Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.

Ct. 645, 58 L. Ed. 2d 552 (1979) ...........................8

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

Ed. 2d 411 (1991) ..........................................4, 7, 9

Ramos v. Louisiana, 590 U.S. 83 (2020) ....................2

Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 908

S.W.2d 104 (Ky. 1995)...........................................8

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

664 (1879) ............................................................13

Taylor v. Louisiana, 419 U.S. 522, 95 S. Ct. 692, 42

L. Ed. 2d 690 (1975) ......................................10, 14

iii

The King v. Sussex Justices, Ex parte McCarthy,

[1924] 1 K.B. 256 .................................................16

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

(1946) ...................................................................17

Travelers’ Ins. Co. v. Selden, 78 F. 285 (4th Cir.

1897) ......................................................................9

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

1986) ....................................................................12

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

(1978) ...................................................................16

Williams v. Florida, 399 U.S. 78, 90 S. Ct. 1893, 26

L. Ed. 2d 446 (1970) ..................2, 3, 5, 6, 7, 15, 21

Constitutions

Ariz. Const. art. 2, sec. 23 ...................................19, 20

Conn. Const. amend. art. IV .....................................19

La. Const. of 1974 art. 1, § 17 ...................................19

Mass. Const. art. XII .................................................20

Utah Const. art. I, sec. 10 .........................................19

Statutes

Ind. Code § 35-37-1-1(b)(1) ........................................19

La. Code Crim. Proc. art. 782 ...................................19

La. R.S. 14:2 § 2(A)(4)................................................20

Mass. G. L. c. 218, § 26A ...........................................20

iv

Rules

Fla. R. Crim. P. 3.270 (2019).....................................19

Mass. R. Crim. P. 19(c) ..............................................20

Books, Articles, and Other Authorities

Akhil Reed Amar, The Bill of Rights: Creation and

Reconstruction (1998)............................................5

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

History of the Criminal Jury in the United

States, 61 U. CHI. L. REV. 867 (1994)..................15

Alexis de Tocqueville, 1 Democracy in America

(Henry Reeve trans., 1835) ...................................5

Arthur L. Rizer III, The Race Effect on Wrongful

Convictions, 29 WM. MITCHELL L. REV. 845

(2003) ...................................................................12

Chittaranjan Andrade, Sample Size and its

Importance in Research, 42 INDIAN J. PSYCH.

MED. 102 (2020) ..................................................15

Eli Price, Discourse on the Trial by Jury (1863) ........8

Founders Online, NATIONAL ARCHIVES, “[February

1771],” in The Adams Papers, Diary and

Autobiography of John Adams, vol. 2, 1771–

1781, ed. L. H. Butterfield (1961).........................6

Founders Online, NATIONAL ARCHIVES, “Adams’

Diary Notes on the Right of Juries: 1771. Feby.

12.,” in The Adams Papers, Legal Papers of John

Adams, vol. 1, Cases 1–30, ed. L. Kinvin Wroth

and Hiller B. Zobel (1965).....................................7

v

Joseph T. Karcher, The Case for the Jury System, 45

CHI.-KENT L. REV. 157 (1968) ...............................9

Judge Royal Furgeson, The Jury in To Kill A

Mockingbird: What Went Wrong?, TEX. BAR J.

488 (2010) ............................................................17

Laura I. Appleman, The Lost Meaning of the Jury

Trial Right, 84 IND. L.J. 397 (2009) .................5, 6

Sir James FitzJames Stephen, A History of the

Criminal Law of England, vol 1 (1883) .............16

Theodore Plucknett, A Concise History of the

Common Law (1956) .............................................6

Tom R. Tyler, Why People Obey the Law (1990) ......18

William E. Chandler, State Reporter, REPORTS OF

CASES ARGUED AND DETERMINED IN THE SUPREME

JUDICIAL COURT OF NEW HAMPSHIRE, vol. 41

(1861) ...................................................................11

William O. Douglas, The Right of the People (1958) ..8

News and Media

12 ANGRY MEN (Orion-Nova Productions 1957) .......17

Joel Moore, Lydian Coombs, and Dorothy Sedovic,

Jury Acquits Man Charged with Planning

Rapper Young Dolph’s Murder, KCTV 5 (Aug. 22,

2025) ....................................................................17

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

2016) ....................................................................17

RUNAWAY JURY (Regency Enterprises 2003) ............17

THE UNTOUCHABLES (Paramount Pictures 1987) ....17

1

INTEREST OF AMICUS CURIAE1

The Utah Association of Criminal Defense

Lawyers (UACDL) is a non-profit voluntary

professional legal organization that brings together

criminal defense attorneys to develop education,

support, and advocacy for criminal defense in Utah.

As a professional organization committed to

protecting the last resort of any defendant: the jury

trial. Felony juries in Utah are tried to eight members

excepting capital cases. UACDL seeks to strengthen

the

trial

rights

of

Utah’s

defendants.

Because the criminal legal system in Utah would

be affected by a decision in this case, along with a

handful of other States, UACDL writes in support of

Petitioner and urges reversal. A ruling that the Sixth

and Fourteenth Amendments require a jury of twelve

in serious cases would provide the defendants of our

State with juries that properly embody the original

meaning and spirit of the criminal jury.

As the organized criminal-defense bar of one of the

affected States, UACDL members try these cases to

juries of fewer than twelve see first-hand what a

reduced jury costs the accused and the public.

Pursuant to this Court’s Rule 37.6, UACDL states that no

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

no person or entity other than UACDL, their members, or their

counsel made a monetary contribution intended to fund the

preparation or submission of the brief.

1

2

SUMMARY OF THE ARGUMENT

In this brief we address what we believe is one of

the central flaws of Williams v. Florida: its position

that juries with as few as six members are

functionally equivalent to juries of twelve since the

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

by the Government,” which the Williams Court

thought a six-person jury could accomplish just as

well as a twelve-person jury.2

This Court’s decision in Ramos v. Louisiana3

confirms the stakes. It holds that the scope of the jurytrial right is fixed by its original public meaning, and

it rejected the functionalist mode of analysis on which

Williams rested. Petitioner explains why that history

requires a jury of twelve. UACDL writes to add what

the parties do not develop: the purposes the founding

generation attached to the jury confirm that original

meaning, and even measured against Williams’s own

functional test, a jury of six cannot serve the jury’s

role.

In drawing that conclusion, the Williams Court

missed three other foundational purposes for which

juries were designed, and in doing so missed what is

lost when cases are decided by juries of six or eight

members. These three additional purposes of the jury

are to: (1) secure the community’s participation in the

administration of justice as an act of self-government,

(2) protect defendants from the vindictiveness of the

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

3

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

3

community, and (3) ensure popular respect for the

outcome of cases.

The jury simultaneously serves both majoritarian

and counter-majoritarian roles by representing the

community and also serving as a check on the

community’s occasional unjust vindictiveness. The

desirable balance of these competing roles falls flat

when the jury is not appropriately comprised to serve

both roles. As discussed below, juries of twelve

members balance these roles better than smaller

juries. Additionally, twelve-member juries matter

because that is the kind of jury that the public

anticipates as giving just verdicts.

When these three additional purposes are given

their fair consideration, the analysis demonstrates

that juries of twelve achieve the purpose of the Sixth

Amendment better than smaller juries do. The

practice of the very States that shrink their juries

confirms the point: each keeps a jury of twelve for its

most serious cases. The judgment below should be

reversed.

ARGUMENT

In Williams v. Florida, this Court determined that

the historical purpose of why juries exist is to "prevent

oppression by the Government."4 From that position

the Court concluded that a six-person jury can just as

effectively accomplish that objective as a twelve-

4

Williams, 399 U.S. at 100.

4

person jury.5 Missing from the Court’s analysis,

however, were other reasons for why juries exist and

why trial by jury matters. These other purposes factor

into the strategic decision of why defense attorneys

and their clients assert the right to trial by jury.

Moreover, these other purposes are better

accomplished through juries of twelve members over

smaller juries. A jury’s purpose is to:

1.

Secure

the

community’s

participation in the administration of

justice.

2. Serve as

community’s

vindictiveness.

a check

proclivity

on

the

for

3. Satisfy society’s, and the

defendant’s, interest that the case was

decided fairly.6

Smaller juries do not reflect these important purposes

the way that a twelve-person jury can. These

purposes are not a functionalist substitute for the

5

Id.

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

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

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

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

more effective this is accomplished, which makes twelve-person

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

choose juries to help educate the populace, so this function is not

explored further in this brief.

5

Constitution’s original meaning; they are part of what

that meaning protected. And even measured against

Williams’s own functional test, each is better served

by twelve than by six.

I.

The Jury is the People’s Share in the

Administration of Justice; a Six Member

Jury Halves That Participation.

The jury is not merely a fact-finder assembled for

the defendant’s benefit. It is the institution through

which the people themselves take part in governing.

The right to a jury was, at the founding, primarily a

right of the people to be involved in the

administration of justice.7 In this sense the jury has

always been a political institution, a form of the

sovereignty of the people exercised in the courtroom.8

Because the jury is the community’s participation in

justice, its size is not a matter of administrative

convenience. It measures how much of the community

actually sits in judgment.

7 Laura I. Appleman, The Lost Meaning of the Jury Trial Right,

84 Ind. L.J. 397 (2009) (explaining that the jury-trial right was

originally, and primarily, a right of the people to participate in

the administration of justice).

See 1 Alexis de Tocqueville, Democracy in America (Henry

Reeve trans., 1835) (describing the jury as, above all, a political

institution and a form of the sovereignty of the people); Akhil

Reed Amar, The Bill of Rights: Creation and Reconstruction

(1998) (treating the jury as a populist, self-governing

institution).

8

6

From its inception, the jury served as the voice of

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

representative character; the basis of its composition

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

it representative of the community. . .”.9 The pluralist

purpose of the jury was also recognized as a central

feature in early America. As John Adams wrote in his

diary:

In the Administration of Justice too, the

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

Man can be condemned of Life, or Limb,

or Property or Reputation, without the

Concurrence of the Voice of the People.10

Not only does the jury represent the community’s

decision to hold defendants accountable; but it also

represents the community’s interest in protecting

defendants against governmental overreach. This is a

right not only for the defendant,11 but as this Court

has also recognized that the people themselves have

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

9 Theodore Plucknett, A Concise History of the Common Law,

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

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

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

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

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

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

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

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

to be involved in the administration of justice).

10

11

Williams, 399 U.S. at 100.

7

arbitrary use or abuse" of judicial power.12 The

requirement of a unanimous jury gives the right to

each juror, as an individual, to stop governmental

overreach.13

Although the Williams Court recognized the jury’s

importance in protecting against oppression, the

Court brushed over the reasons why the jury protects

individuals from the government, and in doing so

missed the reason why a twelve-person jury matters

to accomplish this important function.

Jurors do not adjudicate guilt or innocence simply

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

individuals representing the community. As one early

commentator wrote:

If justice be done to the wheel by placing

in it the most intelligent citizens of all

occupations, every traverse jury of

twelve men should possess an aggregate

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

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

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

12

Founders Online, NATIONAL ARCHIVES, “Adams’ Diary Notes

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

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

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

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

find the Verdict according to his own best Understanding,

Judgment and Conscience, tho in Direct opposition to the

Direction of the Court.”).

13

8

of practical information, that should be

greater than the judge on the bench,

however good his legal information. . . .14

Juries are valued for defendants because of their

ability to apply “common-sense judgment.”15 That

judgment stems from the jury’s connection to

“community values.”16 The “community’s sense of

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

mercy” to the courts.17 As the Kentucky Supreme

Court noted over a century ago:

The jury are drawn from the various

walks of life, and their combined

knowledge and experience afford the

very best opportunity for safe and wise

conclusions. Judge Dillon is quoted as

saying, "twelve good and lawful men are

better judges of disputed facts than

twelve learned judges."18

14 Eli Price,

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

https://tinyurl.com/2pavjym8.

15

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

Ed. 2d 491 (1968).

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

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

16

17 William O. Douglas,

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

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

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

192 (1899)).

18

9

Other commentators have made similar

observations, praising “the judgment of 12 impartial

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

their separate experiences of life to the solution of

such doubts as may arise” as the model of justice,19

and recognizing that the value of a jury is in its

“composite intelligence, dedication, comprehension,

evidence recall, and [] emotional balance . . .”.20

Not only do smaller juries decrease the power of

the citizenry’s right to serve as a check against

government overreach, but they also diminish the

ability of each individual juror to draw from the

collective background of her peers in making just

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

broader community accurately than a jury of twelve.

It has half the life experience. It has half the collective

wisdom. And it gives the people half the share in the

administration of justice that the founding generation

thought their due.

This participatory understanding is not UACDL’s

invention; it is the premise of this Court’s jury

jurisprudence. As the Court has recognized, “[W]ith

the exception of voting, for most citizens the honor

and privilege of jury duty is their most significant

opportunity to participate in the democratic

process.”21 Community participation in the

19

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

20 Joseph T. Karcher,

The Case for the Jury System, CHICAGO-

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

21

Powers, 499 U.S. at 407.

10

administration of the criminal law, the Court has

likewise explained, “is not only consistent with our

democratic heritage but is also critical to public

confidence in the fairness of the criminal justice

system.” 22 The jury is how the community takes part

in governing, and its representative character is what

lends its verdicts their legitimacy.

Because the jury’s representative character

matters so much, this Court has vigilantly guarded it.

When jurors are excluded on the basis of race, the

injury is not the defendant’s alone. “The harm from

discriminatory jury selection extends beyond that

inflicted on the defendant and the excluded juror to

touch the entire community. Selection procedures

that purposefully exclude black persons from juries

undermine public confidence in the fairness of our

system of justice.” 23 The wrong condemned in Batson

is a wrong to the community’s stake in a

representative jury and to the public’s confidence that

justice is evenhanded.

That principle is not confined to the means by

which a jury is made less representative. A State

narrows the community’s representation whether it

strikes qualified jurors one at a time or simply seats

fewer of them from the outset. A six-member panel

does the latter as a matter of course, and in nearly

22

Taylor v. Louisiana, 419 U.S. 522, 530, 95 S. Ct. 692, 42 L. Ed.

2d 690 (1975).

Batson v. Kentucky, 476 U.S. 79, 87, 106 S. Ct. 1712, 90 L. Ed.

2d 69 (1986); see also Georgia v. McCollum, 505 U.S. 42, 49, 112

S. Ct. 2348, 120 L. Ed. 2d 33 (1992) (reaffirming).

23

11

every felony case rather than the exceptional one. As

the empirical record the petitioner marshals shows,

halving the jury predictably thins the representation

of minority members of the community and shrinks

the cross-section that renders the verdict. The injury

Batson identified, to the community’s participation

and to public confidence in the fairness of the system,

follows in either case. A jury reduced by law to six

inflicts a kindred harm. The difference between

striking jurors and shrinking the jury is one of means,

not of kind.

II.

The Jury Serves a Counter-Majoritarian

Function; a Smaller Jury Cannot Serve

that Function as Well as a Jury of

Twelve.

Not only do juries serve as the voice of the

community, but commentators have also recognized

the important role jurors serve as a countermajoritarian

check

on

the

community’s

vindictiveness.

[T]he trial by jury has been steadily

regarded, from the earliest judicial

history in England, as the great

safeguard of the lives, liberty, and

property of the subject against the

abuses of arbitrary power, as well as

against undue excitements of popular

feeling.24

State Reporter, Reports of Cases Argued

and Determined in the Supreme Judicial Court of New

24 William E. Chandler,

12

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

critical to fair outcomes.

Jurors often serve as the gate through which the

community expresses disapproval of a defendant’s

acts. But as participants of the court, it also

moderates the community’s anger. As one Court

pointed out, “Jury trials have historically served to

vent community pressures and passions.”25 When the

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

kettle releas[ing] steam,” allowing “peaceful

expression of community outrage at arbitrary

government or vicious criminal acts.”26

However, the jury has not always served this

moderating influence, requiring courts to occasionally

intervene to protect this function. Among the most

well-known illustrations of juries failing their

counter-majoritarian role comes from the Jim Crow

South, where juries packed with white community

members would unfairly convict black defendants on

the barest of evidence but would acquit white

defendants who harmed black individuals.27 Courts,

including this one, had to step in.

Hampshire,

vol.

41,

550

(1861)

available

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

25

at

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

1986).

26

Id.

27 Arthur L. Rizer III,

The Race Effect on Wrongful Convictions,

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

13

This Court has repeatedly intervened to restore

the jury’s deliberative, counter-majoritarian function

when it has failed, beginning with Strauder v. West

Virginia. 28 The discriminatory origins of reduced and

manipulated juries are set out at length in the

petitioner’s brief, and UACDL does not repeat that

history here. The point for present purposes is

structural: the jury checks the community’s passions

only when it is constituted to deliberate as a genuine

body, and a smaller jury is a weaker check.

But racial animosity is not the only basis on which

courts intervene to safeguard the deliberative jury

from the community’s sense of outrage. In cases

where the “court of popular opinion” has decided

guilty before trial, prospective jurors are screened for

biases they may have acquired by having heard about

and discussed the case with others in the

community.29 Relatedly, when a defendant suspects

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

jurisdiction, his motion to change the trial venue is

typically brought after public polling of the

community’s sentiment shows that the defendant will

not get an impartial jury.30 And while the public

28 Strauder v. West Virginia, 100 U.S. 303, 25 L. Ed. 664 (1879).

29

Mu'Min v. Virginia, 500 U.S. 415, 425-26, 111 S. Ct. 1899, 1905

(1991).

30

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

(1961).

14

would have no trouble convicting a defendant after

hearing about the defendant’s criminal record, juries

are frequently kept from hearing about the

defendant’s record so that they make measured

decisions that the public would not. To that end,

popular sentiment may quickly decide a dispute on

little evidence, whereas the jury inhabits a microcosm

of evidentiary rules, legal instructions, and

procedural presentations of the case. Put simply, the

jury not only represents the community, but it also

serves a counter-majoritarian or moderating function

against public vindictiveness.

Jury size directly affects this counter-majoritarian

function. If a jury is too large it may too greatly reflect

the community’s outrage, hampering its moderating

purpose. But when juries are too small, they run other

risks.

Although defendants “are not entitled to a jury of

any particular composition,” juries are meant to be a

“fair cross-section of the community.”31 Jury size

bears directly on this moderating capacity. Smaller

juries are more likely to have “extreme oversampling”

issues. A jury of six draws on fewer independent

voices to temper the community’s passions, and is the

more easily swept toward the very outrage the jury

exists to check. As a well-known statistical

phenomenon, when a random selection of a

population is too small to reflect the population’s

characteristics, there is an increased risk that the

31

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

15

small sample will contain a disproportionate number

of atypical members of the overall population.32

A jury of fewer than twelve is thus less able to

moderate the vindictiveness of popular sentiment

against the accused. That is a cost Williams never

counted.

III. The Jury System Is Designed to Satisfy

Society’s Interest, as Well as the

Defendant’s Interest, that Justice Is

Done; a Small Jury Does Not Symbolize

the Justice-Serving Role of a Jury.

The jury serves a symbolic purpose. It provides the

community with assurance that a just outcome was

reached. While a defendant has a limited right to

challenge a jury that erroneously convicts,33 the

integrity of a jury’s verdict is otherwise unassailable:

a judge may not direct a criminal jury to convict nor

may a jury’s decision to acquit be appealed.34 The

32 Chittaranjan Andrade, Sample Size and its Importance in

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

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

33

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

(1979).

A Brief History of the

Criminal Jury in the United States, 61 U. CHI. L. REV. 867, 91234 Albert W. Alschuler & Andrew G. Deiss,

13 (1994).

16

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

the legal system.35

The public’s ability to identify with juries aids its

perception that juries get things right. Reflecting on

the English jury system in 1883, one historian noted:

The public at large feel more sympathy

with jury-men than they do with judges,

and accept their verdicts with much less

hesitation and distrust than they would

feel towards judgments however ably

written or expressed.36

Perception matters in the legal system. “It is not

merely of some importance but is of fundamental

importance that justice should not only be done, but

should manifestly and undoubtedly be seen to be

done.”37 When juries do not conform to the public’s

perception of a just jury, it shakes confidence in the

system.

This concern about unjust juries has been aptly

captured in media. The manipulative jury selection

35

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

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

challenged when the result is a conviction).

36 Sir James FitzJames Stephen,

A History of the Criminal Law

of England, vol 1, 573 (1883).

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

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

https://tinyurl.com/bdd5bumr.

37

17

scene in the blockbuster film Runaway Jury reveals

that the gun manufacturer has spent enormous sums

of money to select its ideal jury, helping the audience

to see that the manufacturer is the story’s villain.38

And in Harper Lee’s To Kill a Mockingbird, the reader

knows that the jury will inevitably convict the

innocent Tom Robinson because the author tells the

reader that the jury “seemed to be all farmers,”

pointing out that “townsfolk rarely sat on juries, they

were either struck or excused.”39 As Justice

Frankfurter

pointed

out,

a

jury's

“broad

representative character” of the community is meant

to be an “assurance of diffused impartiality.”40

Juries depicted in popular culture show twelve

individuals.41 When described in media, they are

shown as twelve people.42 As criminal defense

38 RUNAWAY JURY (Regency Enterprises 2003).

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

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

https://tinyurl.com/2p8ztxfm.

40

Thiel v. S. Pac. Co., 328 U.S. 217, 227, 66 S. Ct. 984, 989 (1946)

(Frankfurter, J. dissenting).

41 12 ANGRY MEN (Orion-Nova Productions 1957);

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

(showing a twelve-person jury)

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

THE UNTOUCHABLES (Paramount Pictures 1987) (same)

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

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

Jury Acquits Man Charged with Planning Rapper Young

Dolph’s Murder, KCTV 5 (Aug 22, 2025) (describing the twelve42

18

attorneys, we see in close detail just how important

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

clients are fairly convicted by a jury, it is important

for the client to be able to recognize the legitimacy of

the jury’s verdict. We have repeatedly seen that when

defendants feel that they were fairly convicted, they

fare much better at complying with their sentence

than defendants who witness injustices in their trials.

The justice system has worse results when it does not

appear to be just.

As attorneys who handle jury trials before juries

of eight members, we often find ourselves explaining

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

expect. Our clients are sometimes surprised to see

that Utah’s juries fall out of step with the well-known

expectation of twelve-person juries. They are

occasionally troubled when they do not see twelve

people sitting in the jury box on their case.

The reaction our clients have is not naïve; it

reflects a sound intuition, created by history, about

what a jury is supposed to be. And it matters after

verdict as well. In experience, defendants who believe

they were fairly judged are far more likely to accept

their convictions and comply court orders than those

who leave the courtroom convinced the process

shortchanged them.43 A jury that does not look like

person jury composition) available at

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

43 See Tom R. Tyler, Why People Obey the Law (1990) (perceived

procedural fairness increases acceptance of, and compliance

with, legal outcomes).

19

the jury the public expects invites precisely that

corrosive doubt. When the State seats six jurors

where the community expects twelve, it saves little

and risks much: it trades away the appearance of

justice that gives a verdict its legitimacy.

For both the public and defendants, the jury

system carries symbolic power that ensures right

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

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

seen to be just. Integral to that purpose is the public’s,

and the defendant’s, expectation that the jury is

constituted of twelve members.

IV. The States That Seat Smaller Juries

Concede That Twelve Matters, and a

Twelve-Juror Floor Is Workable.

There is a final, practical confirmation that a jury

of twelve differs in kind from a jury of six, and it

comes from the reduced-jury States themselves.

Every one of them keeps a jury of twelve for its most

serious cases. Utah, Connecticut, Arizona, Indiana,

and Florida each require twelve jurors in capital

cases, and several require twelve for grave noncapital felonies as well.44 Massachusetts, which has

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

Fla. Rule Crim. Proc. § 3.270 (2019); Ind. Code § 35-37-1-1(b)(1);

Utah Const. art. I, sec. 10. Louisiana requires twelve person

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

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

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

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

20

abolished capital punishment, still requires a jury of

twelve in its felony sessions and reserves smaller

juries for lesser matters.45

This is a telling concession. A State would not

reserve its largest jury for the cases that matter most

unless it believed, at some level, that twelve jurors

deliberate differently, and better, than six. And jury

size is not only a sentencing protection; it goes to the

reliability and legitimacy of the guilt determination

itself. If twelve jurors are necessary to fairly decide

whether a defendant lives, it is difficult to explain

why six jurors suffice to decide whether he spends

years in prison. The right to a fairly constituted jury

does not rise and fall with the severity of the sentence;

it attaches to the meaning of a trial and the power of

the government to deprive an individual of life,

liberty, and property.

Nor is a twelve-juror rule any burden to

administer. The reduced-jury States already empanel

twelve-person juries as a matter of routine in their

capital and most serious cases; they have the venires,

the courtrooms, and the procedures in place. UACDL’s

result in imprisonment at hard labor); see also LA R.S. 14:2

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

death or imprisonment at hard labor).

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

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

Massachusetts has abolished capital offenses, see Mass. Const.

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

cases except for certain felonies tried before the district court.

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

21

members try cases in both configurations and can

attest that seating twelve rather than six or eight

asks nothing of the system it does not already supply.

Florida has warned that overruling Williams would

work broad disruption, but the everyday practice of

the affected States is the answer. They already seat

twelve where it counts. The concession those States

have made in part should now be made complete.

CONCLUSION

The Williams Court was too dismissive of the

importance of a twelve-person jury. It considered one

reason for why juries matter but missed out on a

number of other crucial reasons why criminal

defendants pick juries over judges. A jury that is too

small does not adequately reflect the community. A

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

the community too greatly. A jury of twelve has

withstood the test of time in managing this tension.

Moreover, its broad recognition in American culture

has the symbolic value of representing justice.

Accordingly, UACDL urges this Court to reverse the

judgment below and hold that the Sixth and

Fourteenth Amendments require a twelve member

jury in the trial of serious crimes. That ruling would

restore to the defendants of our State’s juries that

properly embody the original meaning and spirit of

the criminal jury.

22

Respectfully submitted,

Dallas Young

Counsel of Record

UTAH COUNTY PUBLIC

DEFENDER ASSOCIATION

5152 N. Edgewood Dr. Ste. 300

Provo, UT 84604

(801) 852-1070

dallasy@utcpd.com

David Ferguson

Executive Director

UTAH ASSOCIATION OF

CRIMINAL DEFENSE

LAWYERS

10 W. 100 S., Ste. 700

Salt Lake City, UT 84101

Douglas J. Thompson

MORRISE THOMPSON

FORESTA

P.O. Box 1766

825 North 900 West,

Orem, UT 84057