In a recent interview with Joshua Rozenberg on “Law in Action” (BBC radio), the Lord Chief Justice of England and Wales, Lord Burnett, mentioned two strategies being considered to address the backlog of jury trials while restrictions necessitated by Covid-19 remain in place. One is to allow “either way” offences (which tend to be at the lower end of the spectrum of gravity) to be tried by a judge and two magistrates without a jury. In England and Wales where the doctrine of parliamentary sovereignty prevails, such an arrangement could doubtless be introduced by statute, but it would scarcely be constitutionally permissible in this jurisdiction. The other strategy is to reduce the number of jurors, possibly to seven as was done during the Second World War (under the Administration of Justice (Emergency Provisions) Act 1939). In fact, similar legislation was introduced at the time in Scotland and Northern Ireland and, in Scotland with its tradition of a majority verdicts, a person could be convicted by a majority of five to two.
This prompts the question as to whether it would it be constitutionally permissible to reduce the number of jurors in criminal trials here in Ireland? As noted in an earlier post, the Constitution (Art. 38.5) requires jury trial for serious offences, but it does not define the term “jury.” The courts have been left identify the essential characteristics of a jury, and the most important of these is that it should consist of a representative cross-section of the community. Any numerical reduction that rendered a jury less than representative in this respect would therefore be unconstitutional. We are concerned here solely with the essential compositional qualities of a jury. Obviously jurors, once sworn, must also be objective, impartial and faithful to their oath to give a true verdict according to the evidence. Under the Juries Act 1976, a person must be a citizen to qualify for jury service which means that our juries are representative of the citizenry, though not necessarily of the entire community.
Even as matters stand, it is not strictly correct to say that a jury must have 12 members. That is the number that must be sworn in at the outset, with the possibility nowadays of three further “stand by” jurors being sworn at the beginning of a lengthy criminal trial. However, a trial may proceed with 10 or 11 jurors where, for some reason, one or two have to drop out. In England and Wales, a trial may proceed with nine jurors (Juries Act 1974, s. 16). Nobody seems certain as to why the composition of a petit jury came to fixed at 12. United States Supreme Court judgments are often a rich source of information on legal history and, especially, early English legal history. In Williams v Florida 399 U.S. 78 (1970), of which more later, the Court surveyed the various historical sources and concluded that fixing the number at 12 was “a historical accident” (p. 102).
Some early writers on the topic explained the adoption of the number twelve by reference to its biblical significance. Giles Duncombe, in his Trials per Pais, or the law of England Concerning Juries by Nisi Prius, &c, wrote:
“This number is no less esteemed by our own law than by holy writ. If the twelve apostles on their twelve thrones must try us in our eternal state, good reason hath the law to appoint twelve to try us in our temporal. The tribes of Israel were twelve, the patriarchs were twelve, and Solomon’s officers were twelve.”
This book, first published in 1766, was apparently “the most widely read treatise in colonial America concerning evidence and courtroom procedure” and, yes, it is available from Amazon. Duncombe seems to have forgotten about Judas or else he had forgiven him. He might also have noted the religious significance of other numbers such as seven (e.g. the deadly sins) or ten (e.g. the Commandments or the parable of the ten virgins in Matthew 25, though sadly only five of them were wise).
In Scotland, a criminal trial jury has 15 members, though a trial may continue with as few as twelve, if necessary. In any case, for a valid conviction, at least 8 jurors must be satisfied of the guilt of the accused. A Scottish Government Report (The Modern Scottish Jury in Criminal Trials) published in 2008 stated that it was not known how the number originally came to be fixed at 15.
Throughout the common-law world, a 12-member jury is the norm in criminal trials, at least in the sense that there should be 12 at the outset. Florida is a notable exception where a criminal trial jury has only six members, although 12 are required in a capital murder case. The constitutionality of this arrangement was unsuccessfully challenged in Williams v Florida 399 U.S. 78 (1970), even though in Thompson v Utah 170 U.S. 343 (1898), the US Supreme Court had held that under the Sixth Amendment, a federal jury meant “a jury constituted, as it was at common law, of twelve persons, neither more nor less.” However, by a majority of seven to one (only eight Justices took part), the Court in Williams held that a state law providing for a jury of six in a criminal trial did not violate the Fourteenth Amendment. Delivering the opinion of the Court, White J said (p. 100):
“,,, the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the common sense judgment of a group of laymen, and in the community participation and shared responsibility that results from the group’s determination of guilt or innocence. The performance of this role is not a function of the particular number of the body that makes up the jury. To be sure, the number should probably be large enough to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility for obtaining a representative cross-section of the community. But we find little reason to think that these goals are in any meaningful sense less likely to be achieved when the jury numbers six, than when it number 12 – particularly if the requirement of unanimity is retained. And, certainly the reliability of the jury as a factfinder hardly seems likely to be a function of its size.”
Marshall J. dissented, being of the view that the Fourteenth Amendment guaranteed a jury of 12 members.
Once Florida got away with a jury of six, Georgia decided to take a chance on five, but this time the Supreme Court was having none of it. Williams had been heavily criticised, with many academic articles, some of them empirically based, pointing out the superiority of a larger number of jurors. Much of this research was expressly taken on board by the Supreme Court in Ballew v Georgia 435 U.S. 223 (1978) where it unanimously held that a five-member jury deprived the petitioner of his constitutional right to jury trial. The Court gave five main reasons for so holding, the first being this:
“First, recent empirical data suggest that progressively smaller juries are less likely to foster effective group deliberation. At some point, this decline leads to inaccurate fact-finding and incorrect application of the common sense of the community to the facts. Generally, a positive correlation exists between group size and the quality of both group performance and group productivity. A variety of explanations have been offered for this conclusion. Several are particularly applicable in the jury setting. The smaller the group, the less likely are members to make critical contributions necessary for the solution of a given problem. Because most juries are not permitted to take notes, memory is important for accurate jury deliberations. As juries decrease in size, then, they are less likely to have members who remember each of the important pieces of evidence or argument. Furthermore, the smaller the group, the less likely it is to overcome the biases of its members to obtain an accurate result. When individual and group decisionmaking were compared, it was seen that groups performed better because prejudices of individuals were frequently counterbalanced, and objectivity resulted. Groups also exhibited increased motivation and self-criticism. All of these advantages, except, perhaps, self-motivation, tend to diminish as the size of the group diminishes. Because juries frequently face complex problems laden with value choices, the benefits are important and should be retained. In particular, the counterbalancing of various biases is critical to the accurate application of the common sense of the community to the facts of any given case.”
The Court also noted that research data had cast doubt on the accuracy of results achieved by progressively smaller panels, and that the risk of convicting the innocent rose as the size of the jury diminished. It said that it adhered to its decision in Williams, while “readily admit[ting] that we do not pretend to discern a clear line between six members and five.” But it was satisfied that anything less than six would be constitutionally unacceptable. There had been some change in the Court’s membership between Williams and Ballew (Black, Harlan and Douglas JJ had been replaced by Powell, Rehnquist and Stevens JJ). One cannot help getting the impression that the Ballew Court might, with the benefit of hindsight, have decided Williams differently.
There may be nothing magic about the number twelve, or ten for that matter. But, for all the reasons identified by the US Supreme Court in Ballew, the lower the number falls the less reliable and legitimate a verdict may become. If a lower number, say seven, were to be adopted, even temporarily, several further questions would arise. Would this be acceptable in all cases, however serious the charge and however severe the likely punishment in the event of conviction? Would majority verdicts be allowed and, if so, by what margin? Would it be permissible for a trial to proceed if one or more members of the jury had to be discharged before the trial concluded?
Perhaps the most important question, to return to where we began, is whether a reduced number of jurors would satisfy the requirement that a jury should represent a fair cross-section of the community. In O Maicin v Eire  4 I.R. 477 and 583 (see Addendum below), MacMenamin J stated at 668-689:
“A jury then must be selected from a pool genuinely representative in character and reflecting the diffuse nature of the community. Among the necessary characteristics are that it be, and perceived to be, constituted with the necessary assurance of diffused impartiality; randomly and indiscriminately drawn from a pool broadly representative of the community, inclusive of large distinctive groups within that community. What is necessary is the “stamp of responsibility” or involvement as part of the community as a whole. The pool must be representative of every category of the public in the area in which the trial is to be conducted; were it not so, it would not be constitutionally compliant. There is, too, a natural justice dimension to the requirements.”
This is an authoritative a statement of the necessity for a broadly representative jury pool. However, it must surely follow that the jury actually sworn in to serve in a given case should also be broadly representative or, at least, stand a good chance of being so. Allowing the initial number of jurors to fall below 12 might risk diminishing the representative quality of the jury, and this in turn would raise a serious question about the constitutionality of the arrangement. Add to this what we may describe as the Ballew factors and the case against reducing the number becomes even stronger.
Addendum to earlier post “Can jury trial be waived?”
In an earlier post on the question of whether jury trial under Art. 38.5 of the Constitution should be interpreted as a right or an imperative, I overlooked one recent, and very relevant, authority. Ironically, it was a case in which I appeared myself, O Maicin v Eire  4 I.R. 477 and 583 where it was held that there was no constitutional right to an Irish speaking jury. Clarke J (as he then was), a member of the Supreme Court majority, having referred to Art. 38.5 and the circumstances in which a person may be tried without a jury for a minor offence, said (p. 646):
“These measures are in recognition of the fact that trial by jury goes beyond the rights of the parties and involves a constitutional imperative. Given that imperative and the absence of any definition of what a trial with a jury might mean, there has, understandably, been debate over the extent to which it is open to the Oireachtas to regulate both the composition of a jury and the manner in which a jury trial can properly be conducted in accordance with the constitutional imperative.”
In the same spirit, MacMenamin J said (p. 669) that “the proper administration of criminal justice is also a duty owed to the public at large. It is not just the prerogative of the accused person.”