One Top Florida Court’s Evolution On 12-Person Jury Right

October 23, 2025 Don Pumphrey, Jr. Criminal Defense Social Share

Florida’s 2nd District Court of Appeal had once expressed skepticism towards Florida’s current laws requiring only six jurors. But 16 years later, that skepticism seems to have evaporated.

In Florida, a six-person jury is impaneled in the vast majority of criminal cases. Florida is the only state in the nation to routinely use juries of six members for all trials, except if someone is charged with a capital offense (crime punishable by death under Florida law). Lessard v. State, 232 So. 3d 13 (Fla. 1st DCA 2017). For those trials, twelve jurors are required.

Florida’s jury laws date back more than a century and were upheld by the U.S. Supreme Court in a landmark decision, Williams v. Florida, 399 U.S. 78 (1970). Williams was accused of a serious felony and was convicted by a jury of six. He argued the U.S. Constitution (Sixth Amendment) guaranteed a right to a twelve-person jury in such cases.

However, the Court ruled against Williams – affirming his conviction by a six-person jury and upholding Florida’s jury laws as constitutionally permissible.

The Court reasoned the following in support of their decision:

• The Sixth Amendment (which creates the right to a jury trial) does not specify a set number of jurors
• Six people can still perform the “deliberative function” required of a jury
• States are permitted to “experiment” and create more efficient ways of operating their justice systems (e.g. small juries cost less), so long as a defendant’s due process rights are not fundamentally violated

Despite Williams remaining the law as of 2025, the arguments advanced by the Williams majority have come under increased scrutiny in recent years. Serious questions about Williams were first raised after the Court decided in Ballew v. Georgia, 435 U.S. 223 (1978) that juries of 5 members violated a defendant’s due process rights. Thus, post-Ballew, six became the minimum.

After Ballew, many advocates observed that it (and Williams) seemed like arbitrary line-drawing. This instinct was supported by the additional social science research that emerged in the years following Williams and Ballew – revealing that larger juries (especially those with 12 members) are in many ways preferable to six-person juries. 

As current U.S. Supreme Court Justice Neil Gorsuch wrote in Khorrami v. Arizona, 143 S. Ct. 22, 23-27 (2022) (Gorsuch, J., dissenting), championing the reversal of Williams:

“An array of studies … suggest that 12-member juries deliberate longer, recall information better, and pay greater attention to dissenting voices.”

Arguments in opposition to Williams v. Florida only grew louder after the Court ruled that jury verdicts in all state and federal criminal trials must be unanimous. Ramos v. Louisiana, 590 U.S. 83 (2020). Prior to Ramos, some states (such as Louisiana) had laws allowing juries to convict defendants even if one or two did not agree the defendant was guilty.

But Ramos did away with this. In its opinion, the U.S. Supreme Court cited a seminal treatise of Sir William Blackstone, an English jurist whose writings laid the foundation for the jury trial right in the U.S. Constitution. Blackstone wrote in Commentaries on the Laws of England (1769) that a defendant should be judged by a “unanimous suffrage of twelve” peers.

The Court relied upon Blackstone to argue that even though the Constitution says nothing about a “unanimity requirement” for juries, this is an implicit part of the jury trial right. This led to a flurry of challenges from defendants in states like Florida. If someone has the implicit right to a unanimous jury, given Blackstone’s writings, don’t they also have the right to twelve jurors?

U.S. Supreme Court Justice Neil Gorsuch has embraced this logic, most notably in his 2022 Khorrami dissent and 2024 dissent in Cunningham v. Florida. But how have Florida’s courts responded to arguments that there is a constitutional right to a twelve-person jury? 

One decision by a top Florida court provides an intriguing answer, both because of its recency and its demonstration of the fact that some judges in the state are becoming more skeptical of pro-12-person jury arguments – not less. Let’s discuss this.

KEY CASE: Serrano-Delgado v. State, 392 So. 3d 251 (Fla. 2d. DCA 2024)

In Serrano-Delgado, the defendant (Serrano-Delgado) was arrested and charged with a variety of sex offenses. One of these was capital sexual battery, but this had allegedly occurred before the Florida Legislature amended the statute to allow the death penalty for the offense (2023). He was convicted on all counts and sentenced to life in prison. 

Serrano-Delgado argued to Florida’s 2nd District Court of Appeal that he was constitutionally entitled to a twelve-person jury to decide his case. He noted that he had been accused of a capital felony – and although state law did not technically allow for the death penalty at the time he was charged, a life sentence after a conviction by a six-person jury violated his due process rights.

Notably, capital sexual battery (victim under 12, defendant 18 or older) was punishable by death in Florida. But in 1981, the Florida Supreme Court ruled that the death penalty for rape without the death of a victim is unconstitutional (violates the Eighth Amendment’s cruel and unusual punishments clause). Buford v. State of Florida, 403 So. 2d 943 (Fla. 1981)

Three years after Buford, the Florida Supreme Court ruled in State v. Hogan (1984) that only six jurors were required in a capital sexual battery case. As the offense was no longer punishable by execution due to the Buford, a “capital jury” (12 members) did not have to be impaneled.

Citing Hogan, the 2nd DCA ruled against Serrano-Delgado, affirming his conviction. It noted that even though the Florida Legislature had amended the state’s capital sexual battery law in 2023 to override Buford v. State (making capital sexual battery once again punishable by death) Serrano-Delgado was charged prior to that change. 

Thus, a six-person jury was all that was required in his case. Rejecting Serrano-Delgado’s claims and affirming his convictions, the 2nd DCA (Greater Tampa area) wrote:

“Mr. Serrano-Delgado’s claim fails under current constitutional law. The Florida Constitution provides that: ‘The right of trial by jury shall be secure to all and remain inviolate. The qualifications and the numbers of jurors, not fewer than six, shall be fixed by law.’”

The 2nd DCA also rejected Serrano-Delgado’s assertion that Williams v. Florida, 399 U.S. 78 (1970) is bad law and “due to be overruled,” especially in the wake of the U.S. Supreme Court’s Ramos decision. The 2nd DCA wrote:

“Relying on Ramos v. Louisiana, Mr. Serrano-Delgado insists that the law may be shifting in his favor. He asserts that Williams is bad law and due to be overruled… Mr. Serrano-Delgado seemingly ignores the fact that Ramos involved the unanimity of jury verdicts, not jury size… Juror unanimity has always been a crucial component of the Sixth Amendment.”

Florida’s 2nd District Court of Appeal also rejected U.S. Supreme Court Justice Neil Gorsuch’s arguments in Khorrami and Cunningham that Williams should be reversed, noting: 

“With all due respect, Justice Gorsuch is but one voice on the Supreme Court. We are bound by precedent, not by what one Supreme Court Justice wishes. Therefore, the use of a six-person jury at Mr. Serrano-Delgado’s trial did not constitute a violation of federal or Florida constitutional rights.”

One of the most intriguing aspects of the 2nd DCA’s decision is that it strikes a very different tune from the one the court sang in another case (sixteen years prior): Gonzalez v. State, 982 So.2d 77 (Fla. 2d. DCA 2008). There, Gonzalez was (similarly) convicted by a six-person jury and sent to prison for life after he was accused of sexual battery.

Though the 2nd DCA did not try to reverse Williams v. Florida and require Gonzalez to be tried by a 12-person jury, it did strongly criticize Williams and noted its sympathy with Gonzalez’s position. The 2nd DCA wrote: 

“Throughout history, there is little question that many societies and cultures have relied on groups of twelve to make reliable decisions. Whether reliance on such duodecuple decision-making has only been based on a religious or cultural tradition of twelve or on some intuitive sense that a group of twelve is reliable is probably an unanswerable question. However, within the law, we quite reasonably give trust to solutions that have withstood the test of time, and the jury of twelve has clearly withstood that test.”

The 2nd DCA included many of the same arguments in Gonzalez as Gorsuch did in his pair of recent dissents, including an observation of the fact that studies have shown 12-person juries are generally preferable to six-person juries:

“There clearly is more scientific evidence today than in 1970 that a twelve-person jury may be superior to a six-person jury to accomplish the functions, purposes, and goals identified by the Williams court.”

The 2nd DCA labeled Gonzalez’s demand for a 12-person jury “persuasive” – and admitted that it was only ruling against him because Williams v. Florida, 399 U.S. 78 (1970) required it. The 2nd DCA concluded:

“As persuasive as Mr. Gonzalez’s argument may be, this court is bound by existing Supreme Court precedent to hold that the six-person jury that convicted him was not, by sheer virtue of its size, constitutionally deficient. That argument must be made ultimately to the Supreme Court.”

Though Serrano-Delgado and Gonzalez technically produced the same outcome (affirming the defendant’s convictions), it is intriguing to see the attitude of the 2nd DCA towards 12-person jury arguments significantly change. None of the sympathetic language included in Gonzalez can be found in Serrano-Delgado, despite extremely similar facts and arguments.

This is likely due to an evolution in the 2nd DCA’s composition over time. As Gonzalez was decided over a decade and a half before Serrano-Delgado, different judges heard each case and authored the court’s opinion. However, it is remarkable that as arguments against Williams have gained popularity, those same arguments have lost support among 2nd DCA judges.

This fact is especially significant given that Ramos v. Louisiana, 590 U.S. 83 (2020) had not even been decided at the time Gonzalez was written. Due to its “history and tradition”-friendly reading of the Sixth Amendment jury trial right, many courts have been more receptive to twelve-person jury arguments post-Ramos (2020). But the opposite is the case for the 2nd DCA. 

In sum, Florida’s 2nd District Court of Appeals has soured on pro-12-person jury arguments as many courts (including the U.S. Supreme Court) have grown friendlier towards them. Although there are likely many reasons for this, it is a break from the broader trend of judges reconsidering the logic of Williams in recent years.

It is important to note that the 2nd DCA could not have legally required a twelve-person jury due to Florida’s current laws and the Supreme Court’s Williams ruling. 

But the lack of any support for Serrano-Delgado’s 12-person jury argument is a clear change from how the court viewed this very issue in Gonzalez (2008). This shows there may be a long road ahead before twelve-person juries become a reality for non-capital cases in Florida.

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.

  Social Share