By Jennifer A. Milak, Esq.
Few rights are as deeply embedded in our body of laws as the right to a trial by jury. This right, which applies to criminal and civil defendants, is enshrined in both the U.S. Constitution and the laws of all 50 states.
In North Carolina, Article I, Section 4 of our State Constitution provides:
No person shall be convicted of any crime but by the unanimous verdict of a jury in open court.
Section 25 confirms this same right applies to civil defendants, furthering:
In all controversies at law respecting property, the ancient mode of trial by jury is one of the best securities of the rights of the people, and shall remain sacred and inviolable.
Per North Carolina General Statute § 7A-196, the parties in all civil cases in North Carolina, have a right to a trial by jury of 12, unless waived by the parties. The number twelve has long been the convention in civil and criminal trials and has become so inextricably woven into the fabric of our legal system that it has remained largely unchallenged. But, COVID-19 has introduced a challenge to our state courts in the ability to safely seat 12 jurors for jury trials. Thus, state court districts are asking parties to waive their right to 12 jurors for health and safety reasons.
Federal courts in North Carolina have a different system that has existed since the United State Supreme Court’s trilogy of 1970s cases - Williams vs. Florida, Apodaca vs. Oregon, and Johnson vs. Louisiana. Those cases ruled that juries of fewer than twelve are constitutional such that federal courts nationwide have routinely adopted rules allowing seating as few as six or eight jurors in civil trials. This important change has caused the behavior and social science communities to extensively study the effects of smaller jurors. The primary question: is there a good reason for defendants to insist upon twelve?
The answer from the behavioral and social science communities is a firm and resounding yes. Ever since SCOTUS ruled that fewer than twelve is perfectly acceptable, experts and social scientists have confirmed that when it comes to the specific number, twelve is neither arbitrary nor a stale tradition that is easily dispensed. In fact, on matters concerning an individual’s personal liberties or financial and reputational future, there are compelling reasons to insist upon more eyes, ears, and brainpower.
Justice is Best Served by the Dozen.
For well over a decade, research has overwhelmingly confirmed that when it comes to making critical decisions about a defendant’s welfare, a larger group is far better than a smaller one. According to a 2004 American Psychological Association Article, entitled “Are Six Heads as Good as Twelve?,” the consensus in the psychological community is that justice is far better served by larger groups. To support this point, the article cites numerous findings from social studies comparing the decision-making power of smaller groups as compared to larger ones. These findings were subsequently confirmed in a 2020 Judicature piece authored by Patrick Higginbotham, Lee Rosenthal, and Steven Gensler entitled “Better by the Dozen: Bringing Back the Twelve-Person Civil Jury.” The article masterfully summarizes the social science findings on the superiority of larger juries and can be distilled as follows.
Reason 1: Larger juries are substantially less likely to extend outlier verdicts.
Citing a 1971 Chicago Law Review article on the diminution of juries in federal cases, Higginbotham, Rosenthal, and Gensler explain that a six-man jury is four times more likely to return an abnormally high or low damages award than its twelve-person counterpart. Per extensive studies of group behavior, in a smaller group, one individual’s extreme opinion is far more likely to sway the entire group’s decision. Conversely, in a larger pool, one outlier’s opinions have far less pull and face exponentially increased resistance.
This begs the question: why does this particular reason matter, and in particular, why does it matter to civil defendants?
Juries are (ideally) the voice of the people. Their decisions serve justice and the greater good when they follow closely to the consensus of the greater communities they represent. As a general principle, communities tend to hold consensus views that fall between two extremes. Larger juries are more likely to rule in accordance with the consensus view, not the extreme one, thus making them more accurate representations of the community’s opinions, beliefs, and values.
As far as civil defendants are concerned, extremism is not in their best interest. After all, it is very rare that juries will return a $0 award for sympathetic plaintiffs. Even a defendant who is found liable may still walk away relatively unscathed if the jurors equivocate on damages. In fact, in many cases, the best-case scenario for a civil defendant involved in a case with challenging facts is a modest damages award. Frequently, juries reach a middle-of-the-road consensus in complex cases: find the defendant liable, but spare the sting of an outrageously high award for the plaintiff.
Reason 2: Larger groups are wired to make better decisions.
Higginbotham, Rosenthal, and Gensler do not mince words in proclaiming larger groups “better” per the social science. “Better,” in this case, means objectively rooted in logic and facts. Studies have consistently proven that larger groups show better collective recall of the evidence and, as a result, less reliance on conclusory statements and emotional appeals. Higginbotham, Rosenthal, and Gensler report:
[T]he larger a workable decision-making group, the better the decisions will be because of the increased resources more group members provide. If six heads are better than one, 12 are in most respects better than six or eight.
Social studies have also shown that larger groups spend more time deliberating. In some cases and for some parties, the increased deliberation works against the client’s interest. But in complex, high-stakes litigation, the increased deliberation time is beneficial: not only is it unlikely to sap the court’s or parties’ financial resources, but as Higginbotham, Rosenthal, and Gensler note: “given that the parties’ fates and fortunes are on the line, evidence that larger juries spend more time deliberating might be seen as a virtue, not a vice.”
Reason 3: Larger juries more likely to hang.
Studies have consistently shown that smaller juries tend to communicate in a more ordered fashion, but larger groups are more likely to vigorously debate the issues. The aforementioned APA article notes that because of this, a dissenter in a larger jury may be more likely to pick up an ally or two and collectively resist the pressure to, as Higginbotham, Rosenthal, and Gensler write, “yield to the will of the larger group.” Logically, this scenario is far less likely in a smaller group.
In other words, more heads mean a greater likelihood that two or more jurors will join forces to resist the will of the masses. Alternatively, jurors will reach a consensus on liability but diverge on damages. They will agree, in other words, that the defendant was responsible for the injury at issue but then will compromise on the value of the claim. So, while the defendant will still lose, he or she will not lose as severely. In still other cases, the two (or more) holdout jurors may succeed in convincing the group to side with them on both liability and damages.
Even a hung jury, however, carries benefits for defense counsel. First of all, as noted, a divergence on damages can save a defendant substantially. More significantly though, even with weaknesses in a case, or the presence of a particularly sympathetic plaintiff or emotionally charged story, the likelihood of one or two jurors joining to resist the collective will can erode the swaying power of bad facts. However, as that group shrinks, so do the defense’s chances of a holdout juror.
Defense Counsel: You’ve Simply Got to Fight for Your Right to Twelve.
The ongoing social science and empirical, behavioral research shows the undeniably negative effects of smaller jury pools. The evidence indicates that smaller juries are not only composed differently, but also are wired to think and decide differently than larger ones.
As such, per Higginbotham, Rosenthal, and Gensler’s call, it is “time to stop doubting these findings” and for counsel to acknowledge that 12 is not arbitrary: it is essential to fairness and equity in both process and outcome for your defendant clients.
