CaliforniaIt may come as a surprise that the traditional 12-person jury is not constitutionally required. Many states and the federal government allow six or eight-person juries. California has considered doing the same.

Throughout the 1970s, the United States Supreme Court issued a series of decisions regarding the constitutionality of the 12-person jury. These decisions held that a jury comprised of as few as 6 members, and as many as 12, does not violate a defendant's constitutional right to a fair and impartial jury. The Supreme Court noted that a jury must be large enough to promote jury deliberation free from intimidation and provide a fair possibility for obtaining a representative cross-section of the community. Following these decisions, more than half the states adopted laws requiring less than 12 persons on a jury; federal statutes provide for a 6-person unanimous verdict in most civil cases.

jurycheckinIn light of California's current budget crisis, California has considered allowing fewer than 12 persons to serve on a jury in a civil case. Currently, under the Code of Civil Procedure, a civil jury consists of 12 persons but parties may agree to any number less than 12. Under the California Expedited Jury Act, a voluntary procedure, the parties agree to impanel a jury of 8 persons, with each side limited to three hours to present their case. Verdicts with a consensus of 6 out of 8 jurors are binding. Under the Act, parties agree before trial to a confidential high/low damages payment, allowing a plaintiff to receive a minimum amount and a defendant to limit potential exposure. While the Act may be best suited for small cases with correspondingly small damages, it may also be useful in cases where damages are not in dispute, but rather, liability or comparative fault. Both the Expedited Jury Act and the Code of Civil Procedure may be an indication that California could, in the future, move toward the 6 to 8-person jury as the norm in state court.

There are advantages and disadvantages presented by a transition from a 12-person jury to a 6 or 8-person jury. The key advantage, given strained court resources, is that reducing jury size may also reduce costs, beyond just reducing the number of jurors who receive compensation for their service. Reducing the number of jurors also reduces the time spent on jury selection. Additionally, as smaller juries tend to come to agreement more quickly, deliberation time will be reduced, and cases will proceed more efficiently through the court system. The reduction in jury size and deliberation time could mean more cases will be sent out to trial. Because smaller juries are more likely to reach a consensus, this may reduce the number of hung juries.

There are also disadvantages to a 6 or 8-person jury. Studies show that smaller juries are more unpredictable than a 10 or 12-person jury, and damage awards can be erratic. Therefore, the parties' ability to assess the likely outcome of a case can be affected, impacting pre-trial negotiation and settlement. Settlement is more likely when one party recognizes the likelihood of an unfavorable outcome at trial, but with unpredictable jury awards, a party's ability to assess the outcome of a case lessens. Mock jury research demonstrates that a 6-person jury performs worse at recalling evidence. The more individuals present during deliberations to recall evidence presented during trial, the greater the odds that more evidence, and more detail, will be remembered. In cases with complex issues of causation, when events occurred years ago, and trials can span one to four weeks, a smaller jury size may adversely affect the jury's ability to recall important facts. Also, a 6 to 8-person jury is less likely to present a wide variation in juror bias. Thus, in counties with more conservative jury pools, the liberal juror is less likely to make an appearance, and vice versa.

Overall, a reduction in the size of civil juries in California presents fiscal advantages for the courts and for parties to obtain timely trial dates. But a reduction in jury size may also reduce the likelihood of settlement before trial and may affect the jury's ability to recall and apply the evidence presented during trial, which could negatively impact defendants with complex cases. Ultimately, should California follow in the footsteps of other states and the federal government, there will be both positive and negative aspects, and perhaps some surprises, for litigation.


LES--headshot-web-name-Heather J. ZachariaFeel free to contact the authors with any questions:  

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