Florida Juries FAQ: 6 Jurors vs. 12? Do I Have the Right to a Jury Trial?

September 10, 2025 Don Pumphrey, Jr. Criminal Defense Social Share

When someone is arrested and charged with a criminal offense in Florida, questions often arise regarding how a jury trial works. This article will answer various frequently asked questions in Florida regarding juries, including whether six or twelve jurors are required in a Florida criminal case.

#1 – Do I have a right to a trial by jury in Florida?

Yes – if someone is charged with a criminal offense in Florida, they have the right to a trial by jury. This is specified in Article I, Section 22 of the Florida Constitution.

The U.S. Supreme Court has ruled that there is no Sixth Amendment right to a jury trial for “non-serious” (petty) offenses – crimes that carry a maximum potential penalty of less than six months in jail. Baldwin v. New York, 399 U.S. 66 (1970). But Florida explicitly guarantees the right to a jury trial, allowing the accused in any criminal proceeding to request this.

In rare cases, if a judge promises that there will be no jail time imposed even if the defendant is found guilty, the defendant may not have the right to a jury trial. But even in such circumstances, a jury trial is still generally granted if requested.

#2 – Can I waive my right to a jury trial and opt for a bench trial?

Someone may waive their right to a trial by jury and opt for a bench trial in Florida. A bench trial involves the trial judge serving as “the jury,” rather than a pool of a defendant’s peers. The judge renders the verdict at a bench trial rather than a jury.

However, a waiver of a jury trial in favor of a bench trial must follow specific protocols. First, this must be done on the record. It must also be knowing, intelligent, and voluntary – someone must fully understand the nature of the right they are giving up, the potential consequences, and it must not be the product of force or coercion. Saini v. State, 411 So.3d 1285 (Fla. 2025).

#3 – How many jurors are seated in a Florida criminal case?

There are typically six jurors seated in a Florida criminal case. Florida law requires a jury to consist of six members in all felony and misdemeanor cases except for capital felonies, where a jury of twelve is to be selected. Williams v. Florida, 399 U.S. 78 (1970). Florida is one of only a few U.S. states to continue to use a jury of six in the vast majority of criminal proceedings.

#4 – What charges give someone the right to a twelve-person jury?

There are only two capital crimes in Florida – crimes that state law allows to be punished by death. They are:

• Capital sexual battery (defendant over 18, victim under 12) (Fla. Stat. 794.011(2)(a))
• First-degree murder (premeditated or felony murder) (Fla. Stat. 782.04)

If someone is charged with any of the above offenses, they have a right to a jury of twelve in Florida, regardless of whether or not the State actually seeks the death penalty. However, all non-capital crimes only require a jury of six members. State v. Wong, 271 So. 3d 74 (Fla. 3rd DCA 2019)

#5 – Can a capital felony ever be tried with six jurors – or as a bench trial?

A capital felony case can be tried with a jury of just six people. However, the defendant must first knowingly, intelligently, and voluntarily waive the right to a trial by twelve – and the State and court must also agree to the reduction in jury size. 

If a defendant personally objects on the record, this automatically defeats any motion for a reduction in jury size, even if the defendant’s counsel is moving for it. Blair v. State, 698 So.2d 1210 (Fla. 1997). Bench trials are generally prohibited in capital cases. State v. Garcia, 224 So.2d 395 (Fla. 3d. DCA 1969)

#6 – Must a jury verdict be unanimous?

Yes, a jury verdict must be unanimous. This was officially declared by the U.S. Supreme Court in Ramos v. Louisiana, 590 U.S. 83 (2020) – which struck down Louisiana’s law allowing for a 10-2 or 11-1 jury to still convict a defendant.

However, this only applies to the actual verdict (“guilt phase”). Florida recently updated its capital punishment law to allow a defendant to receive the death penalty if just eight out of twelve jurors vote in favor of this during a capital trial’s “penalty phase.” This is currently a major subject of discussion and has triggered multiple legal challenges.

#7 – If I’m charged with a crime punishable by up to life in prison, do I get a 12-person jury?

No, Florida does not require that someone charged with a crime punishable by up to life in prison (but not the death penalty) receive a twelve-person jury. Only capital felonies require the use of a twelve-person jury.

However, the U.S. Supreme Court currently holds that it is unconstitutional for the death penalty to be given as a punishment for sexual battery if the victim does not die (Kennedy v. Louisiana). 

With Kennedy considered, some have noted capital sexual battery and PBL/life felony sexual battery (e.g. by a family member on a minor 12-17 years old) technically carry the same maximum penalty (life in prison) – but only those charged with capital sexual battery get a twelve-person jury. This raises due process concerns, as twelve-person juries have shown potential benefits for defendants.

#8 – Is a twelve-person jury less likely to convict a defendant?

Generally, yes – studies have shown that increasing the size of a jury from six to twelve increases the chances of one or more “holdouts,” raising the likelihood of acquittal. As Justice Gorsuch of the U.S. Supreme Court observed regarding 12-person juries in 2022:

“An array of studies in the years since Ballew has done more of the same. These studies suggest that 12-member juries deliberate longer, recall information better, and pay greater attention to dissenting voices.” – Khorrami v. Arizona, 143 S.Ct. 22, 26-27 

Justice Gorsuch is a strong proponent of the right to a jury of twelve – rooting this position in English common law and the belief that a twelve-person jury functions more effectively than a six-person jury.

#9 – Can there be a jury of less than six people?

No, the U.S. Supreme Court has ruled that a jury of five people or fewer at a criminal trial is unconstitutional. Ballew v. Georgia, 435 U.S. 223 (1978). The Court reasoned that juries smaller than six are constitutionally inadequate, because they undermine the jury’s role in ensuring deliberation, diversity of viewpoints, and community representation.

#10 – What happens if the jury can’t agree on a verdict?

If jurors truly cannot agree after deliberations as to what the verdict should be, the judge may declare a mistrial. The State can then choose to retry the case with a new jury, negotiate a plea, or sometimes drop the charges. Again, a jury verdict must be unanimous.

#11– How are potential jurors chosen?

Under Florida law, potential jurors must be eighteen years of age or older, U.S. citizens, and residents of the county where they are summoned. Potential jurors are randomly selected from the Florida Department of Highway Safety and Motor Vehicles database (driver’s licenses and ID cards). 

The court and attorneys gradually shrink the pool of those summoned to appear for jury duty through the process of jury selection (voir dire), until a final jury is chosen. You can read more about that process here.

In sum, Florida gives defendants the right to a trial with twelve jurors if charged with a capital felony, and six jurors in all other felony and misdemeanor cases. If someone is accused of a crime, the Florida Constitution guarantees the right to a jury trial.

By understanding the answers to these FAQs, someone will be significantly better informed regarding their right to a trial by jury in Florida if they or a loved one are ever involved in a criminal case.

If someone is arrested and formally charged in Florida and concerned about jury selection, it is critical to find experienced and trusted legal representation as soon as possible. This decision could make the difference in whether or not someone faces a lengthy prison term and hefty fines.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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