The 12-Person Jury Debate: Law in Florida and Where the Supreme Court is Headed

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

In Florida, current law dictates that a jury be impaneled in both felony and misdemeanor cases with only six jurors selected. Florida is one of only a few states that still relies upon six-person juries in all criminal cases, with the exception of capital felonies, which require twelve jurors to be seated. 

But many jurists and attorneys – including justices on the U.S. Supreme Court – have called for a nationwide rule that juries in a criminal trial be composed of twelve people. Gorsuch and others have cited the history of the U.S. Constitution in making the case for 12-person juries, including British common law that laid the foundation for the American legal system. This article will explain the current state of Florida law regarding the 12-person jury – and arguments for and against six-person juries in criminal cases.

In Williams v. Florida, the U.S. Supreme Court ruled that Florida’s law impaneling six person juries in felony and misdemeanor (non-capital) cases was constitutional. Williams v. Florida, 399 U.S. 78 (1970). The Court reasoned that the Fourteenth Amendment did not incorporate the right to a twelve person jury to states.

Williams further argued there was no historical evidence that twelve jurors was a constitutional requirement, and that six jurors could perform the same deliberative function as a jury of twelve while avoiding some of the major risks of even smaller juries (such as insufficient diversity of perspectives or underrepresentation of minority groups).

Florida’s courts, bound by Williams, have consistently adhered to its holding when hearing constitutional challenges about the right to a twelve-person jury. In Salmon v. State, 387 So.3d 393 (Fla. 1st DCA 2024), Judge Bradford L. Thomas offered his support for the Williams ruling by advancing three main arguments:

• The Constitution does not put forth a requirement for 12-person juries, and could have done so if it was mandated
• If Florida’s courts were to break from Williams, it would lead to the retrial of thousands of cases on direct appeal, raising efficiency concerns
• There is no evidence that a 12-person jury results in more accurate outcomes than a six-person jury, nor evidence that the defense benefits from a 12-person jury

Salmon responded directly to conservative U.S. Supreme Court Justice Neil Gorsuch’s 2022 dissent from a denial of certiorari in Khorrami, which called for the nationwide use of 12-person juries under Gorsuch’s interpretation of the Sixth Amendment.

In arguing for twelve-person juries, Justice Gorsuch and others have observed that even though the Constitution does not create an explicit requirement of twelve jurors, it also does not set a minimum number of jurors at all and does not require juries to be unanimous in their verdicts. Nevertheless, the U.S. Supreme Court has ruled that under the Sixth Amendment, juries smaller than six in criminal cases are unconstitutional, and there is a requirement that verdicts be unanimous. Ballew v. Georgia, 435 U.S. 223 (1978); Ramos v. Louisiana, 590 U.S. 140 (2020). 

How did the U.S. Supreme Court arrive at these conclusions in the absence of explicit constitutional text? The answer is: by reviewing history, and in particular, the common law. William Blackstone, an English jurist who inspired the Framers’ vision of the American justice system, vocally advocated that criminal disputes be resolved by a “unanimous suffrage of twelve” members of the community. Commentaries on the Laws of England (1769).

Gorsuch and other proponents of twelve-person juries have observed that the same common law that supports a unanimity requirement also supports requiring twelve-person juries in criminal cases. Thus, they support expanding the twelve-person jury beyond capital cases. Twelve-person jury advocates argue that common law that lays at the root of the Constitution is to be deferred to when there is not an explicit answer given by the constitutional text.

Judge Thomas in Salmon also amplified a separate, common concern – wouldn’t thousands of cases have to be retried where six-person juries were impaneled if the Supreme Court strikes down Florida’s current six-person jury law? The answer to this question is likely yes. 

But the increasingly conservative U.S. Supreme Court has moved away from its previous prioritization of efficiency over common law, when the constitutional text is silent on the issue. Its more liberal precedents on Fifth and Sixth Amendment due process issues have increasingly been called into question – including Williams by Gorsuch in Khorrami and Almendarez-Torres by Erlinger v. United States (2024). 

Justice Gorsuch observed in Erlinger, “There is no efficiency exception to the Fifth and Sixth Amendments. In a free society respectful of the individual, a criminal defendant enjoys the right to hold the government to the burden of proving its case beyond a reasonable doubt to a unanimous jury of his peers ‘regardless of how overwhelmin[g]’ the evidence may seem to a judge.” Erlinger, 602 U.S. at 842 (citing Rose v. Clark, 478 U.S. 570, 578). He believes the same is true for the right to a twelve-person jury – choosing common law over efficiency.

Moreover, 12-person jury proponents have observed that the same efficiency concerns were raised in Gideon v. Wainwright. Gideon’s opponents argued that if the U.S. Supreme Court ruled he had the right to an attorney, thousands of cases would have to be retried, as the defendant’s right to counsel had been violated due to a lack of a government-appointed attorney. The U.S. Supreme Court, however, declined to prioritize judicial efficiency over what the law demanded – and ruled in Gideon’s favor. Gideon v. Wainwright, 372 U.S. 335 (1963).

A final argument advanced by Judge Thomas in Salmon is that twelve-person juries do not produce more accurate results, and do not necessarily benefit the defense. Gorsuch contended with this in his Khorrami dissent, observing:

“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 

Though the academic literature is still evolving on the issue, proponents of the 12-person jury have pointed out that a jury of twelve creates more opportunity for a dissenter – which may result in a hung jury (or even an acquittal) in cases where only six would unanimously declare someone’s guilt at trial. Thus, the advocates of a 12-person jury argue it is more likely to satisfy “Blackstone’s ratio.”

“It is better that ten guilty persons escape than that one innocent suffer.” – William Blackstone, Commentaries on the Laws of England (1768)

Additionally, Florida and all other states require a 12-person jury in cases involving the potential for capital punishment (capital cases). A twelve-person jury is not unprecedented in the state of Florida – it already exists, just not for non-capital cases.

In sum, the debate surrounding whether a twelve-person jury is constitutionally required is a fascinating one, steeped in history and constitutional tradition. Some courts, such as the U.S. Supreme Court in Williams and the First District Court of Appeal in Florida have held that a six-person jury satisfies the “bare minimum” of the U.S. Constitution.

Williams binds Florida’s courts to order juries of six (so long as a jury of six remains Florida law), unless a capital case is being heard. In that case, twelve jurors are to be seated. But many have objected to Williams and noted that:

• Twelve person juries amplify dissent and are more representative of the community
• Common law (dating to the time of the Magna Carta in 1215) is overwhelmingly on the side of a twelve-person jury requirement in criminal disputes (particularly felony cases)
• Concerns of inefficiency or a “backlog” in the court have historically not stopped the U.S. Supreme Court from ruling on the side of due process if the justices believe it is being infringed (see Gideon and Erlinger)
• The Constitution does not specify a minimum jury size or a unanimity requirement for verdicts in criminal cases, but the U.S. Supreme Court has said the Sixth Amendment requires at least 6 jurors and a unanimous verdict. (see Ballew and Ramos).

It is impossible to say definitively if the U.S. Supreme Court will rule that a twelve-person jury is required in criminal disputes. In Khorrami v. Arizona (2022), only Justices Neil Gorsuch and Brett Kavanaugh voted to hear the case. This means seven of the current nine justices on the Court declined. However, given the Court’s movement away from elevating judicial economy (efficiency) over common law, as it did in Williams, there is the potential for the decision to be overturned if a challenge similar to Khorrami’s is made in the future. 

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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