Jackson Kelly PLLC

The Legal Brief


June 19, 2020

By: Daniel R. Michelmore

In March 2020, in response to the COVID-19 epidemic, the Supreme Court of Pennsylvania, like most jurisdictions, suspended all civil jury trials until June 1, 2020. Now that this period has expired, the Supreme Court has left it to the discretion of individual judicial districts to resume civil jury trials when they can “be conducted consistent with prevailing health and safety norms.”

The Pennsylvania Constitution guarantees a twelve-person jury in civil cases. Nevertheless, some districts, in the hopes of returning to normal as soon as possible, and along with other safety measures, are proposing that litigants waive this right in favor of a six-person jury, reasoning that they are functionally equivalent as each requires persuading 83% of jurors (five of six vs. ten of twelve) to impose liability. And from a public health standpoint, simply by summoning fewer jurors to the courthouse, the chances of viral spread are significantly reduced. Unfortunately, so too is the likelihood a fair verdict. While a smaller jury pool benefits public health, it is against the interests of justice, as the weight of established research demonstrates that six-person juries are less objective and less thorough than the traditional twelve-juror panel.

As an initial matter, a jury of six is less diverse than a jury of twelve and therefore less representative of the community. Michael J. Saks, The Smaller the Jury the Greater the Unpredictability, 79 Judicature 263, 264 (1996). The less representative the jury is of the broader public, the less its verdicts are perceived as legitimate. Kim Taylor-Thompson, Empty Votes in Jury Deliberations, 113 Harv. L. Rev. 1261, 1317 (2000); Douglas G. Smith, Structural and Functional Aspects of the Jury: Comparative Analysis and Proposals for Reform, 48 Ala. L. Rev. 441, 516–21 (1997).

Further, more diverse juries have a greater variety of viewpoints and knowledge which, in turn, facilitates a greater exchange of ideas and information that improves the quality of deliberations and produces more accurate verdicts. Judge Patrick E. Higginbotham, The Present Plight of the United States District Courts, 60 Duke L.J. 745, 757–59 (2010); Richard S. Arnold, Trial by Jury: The Constitutional Right to a Jury of Twelve in Civil Trials, 22 Hofstra L. Rev. 1, 31 (1993).

Indeed, the research shows that six-person juries are less likely to remember important pieces of evidence, correct each other’s factual errors, and overcome individual biases than twelve-person juries. M. Saks, Jury Verdicts 77 et seq. (1977); Kelley & Thibaut, Group Problem Solving, 4 Handbook of Soc. Psych. 68-69 (1969); Carol M. Werner et al., The Impact of Case Characteristics and Prior Jury Experience on Jury Verdicts, 15 J. Applied Soc. Psychol. 409 (1985). In addition, six-person juries are more susceptible to pressure from a single aggressive juror and more likely to reach “haywire” verdicts inconsistent with community norms. Hans Zeisel, And Then There Were None: The Diminution of the Federal Jury, 38 U. Chi. L. Rev. 710, 720 (1971); Valerie P. Hans & Neil Vidmar, Judging the Jury 167 (1986); Judge Victor J. Baum, The Six-Man Jury-The Cross Section Aborted, Judges' J., Jan. 1973, at 12.

Thus, despite the valid public health concerns motivating six-person jury proposals, litigants should greet them with skepticism. While courts may want to get their civil trial dockets moving again, doing so with six-person juries is anything but a “return to normal.” There is a reason the constitutional right to twelve jurors has never been changed to six: They are lesser not just in quantity, but in quality. Courts must therefore rely on other measures to safely resume civil trials.


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