Is a Twelve-Person Jury Required for Criminal Cases in Florida?

May 16, 2025 Don Pumphrey, Jr. Criminal Defense Social Share

When someone is put on trial for allegedly committing a crime, a common misconception is that a twelve-person jury is required. But Florida is one of a handful of U.S. states that requires just six jurors to be seated in all criminal trials – except when someone is tried for a capital offense. This blog will explore the law and history surrounding twelve-person juries for criminal trials in Florida.

Under Fla. Stat. Section 913.10 and Gonzalez v. State, 982 So.2d 77 (Fla. 2d. DCA 2008), all criminal cases with the exception of capital cases are to be tried with just six jurors. Capital cases consist of two phases – the first involving the determination of the defendant’s guilt, and the second deciding whether the defendant will receive the death penalty. 

If the State tries a defendant for a capital offense under Florida law, a twelve-person jury will be impaneled. This is required even if the State does not actually intend to seek the death penalty. State v. Wong, 271 So.3d 74 (Fla. 3rd DCA 2019). 

Capital crimes in Florida include:

• First-degree (premeditated) murder
• Treason
• Sexual battery of a child under 12 (if the crime occurred after October 1, 2023)
• Aggravated child or elder abuse, if it resulted in death of a victim
• Capital drug trafficking (over 150 kilograms) resulting in death of a user
• Carjacking, aircraft piracy, or human trafficking that resulted in death of a victim
• Arson, robbery or burglary that resulted in death of a victim
• Murder of a law enforcement officer under F.S. 782.065
• Home invasion robbery resulting in death of a victim
• Armed kidnapping resulted in the death of a victim

Though Florida requires a twelve-person jury for capital cases, the right to a twelve-person jury may be waived by the defendant in a capital case if they prefer to be tried by six jurors. This waiver cannot be forced by the State – it must be made knowingly, intelligently, and voluntarily by the defendant. State v. Wong, 271 So.3d 74 (Fla. 3rd DCA 2019)

But in non-capital cases, criminal defendants in Florida will receive a jury of just six individuals, regardless of if they are charged with a felony or misdemeanor. All but a handful of states require a twelve-person jury to be impaneled in non-capital criminal cases. However, the U.S. Supreme Court has ruled this is not a constitutional requirement. 

In Williams v. Florida, the Court ruled that due to a lack of historical evidence indicating that a twelve-person jury is an indispensable component of the Sixth Amendment’s jury trial right, Florida was permitted to try non-capital defendants with six jurors. Williams v. Florida, 399 U.S. 78 (1970) 

Though the Williams decision is the law of the land, it has sparked controversy since it was handed down – with many calling for it to be reversed. Though Gonzalez v. State ruled that the appellant was only entitled to a jury of six, the court opined:

“Florida is one of only two remaining states that regularly use six jurors to decide the outcome of criminal cases in which life imprisonment is a mandatory sentence if the defendant is found guilty of the charged offense. The common-law tradition of twelve jurors for such important criminal cases is overwhelmingly recognized as the better policy throughout the United States.” Gonzalez v. State, 982 So.2d 77, 78 (Fla. 2d. DCA 2008)

Subsequent U.S. Supreme Court decisions have subtly resisted the holding in Williams. In Blakely v. Washington, the Court featured a quote from renowned English jurist and philosopher William Blackstone declaring “that the ‘truth of every accusation’ against a defendant ‘should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours.’” Blakely v. Washington, 542 U.S. 296, 301 (2004). 

Though Blakely did not reverse Williams, the Court’s inclusion of Blackstone’s quote was an acknowledgment of historical grounds for a twelve-person jury requirement – as Blackstone’s writings were highly influential in aiding the development of the American legal system. 

In recent years, Supreme Court justices have even gone so far as to openly disagree with the Williams decision. Penning a dissent in Khorami v. Arizona, Justice Neil Gorsuch voiced his position that a criminal defendant is entitled to a twelve-person jury for “serious criminal offenses.”

“For almost all of this Nation’s history and centuries before that, the right to trial by jury for serious criminal offenses meant the right to a trial before 12 members of the community — nothing less.” Khorrami v. Arizona, 143 S. Ct. 22, 23-27 (2022) (Gorsuch, J., dissenting).

In sum, Florida requires only six jurors to be seated in all criminal trials – with the exception of when a defendant is charged with a capital offense. A capital offense is defined as one that allows the death penalty as a possible punishment, even if the State does not intend to seek it. 

Florida is one of only a few states to require only six jurors in criminal cases (including those involving serious felony charges), which is permitted by Williams. But many have questioned the logic of the Williams decision and called for it to be overturned – which may occur in the future.

Criminal Defense Firm in Tallahassee, FL

If someone is arrested and formally charged in Florida and concerned about jury selection in their case, 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.

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for almost 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 attorneys at Pumphrey Law have decades of experience fighting to win for clients across the state of Florida. Call now at (850) 681-7777 for a free consultation.

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