Why 12 Jurors, why not 11, 10, 9, 1? The question might seem basic, but why do juries in the United States consist of 12 members? Was there an experimental determination of this number? Would the addition or removal of a juror operate more effectively?
The origin of the jury is a complex mix of Saxon, Danish and Norman custom which morphed and melded along with English Common Law, which is the basis of the law in all ex-British colonies including the USA. Danish towns in the north and east of England had hereditary “law men”, often 12 in number who decided legal disputes. In parallel the West Saxons (Wessex) in the south and west charged 12 theigns in each area with keeping the peace. When the Normans conquered (who were also of Viking origin) they adopted and adapted the existing legal structures. In the 12th century, Henry II established that a jury of 12 should decide land disputes. Meanwhile other juries of various sizes were formed to investigate crimes and bring charges - this is the origin of the Grand Juries that still live on in some jurisdictions in the USA although they have been replaced by a judge in other common law jurisdictions (and some states in the USA). Ultimately the jury that brought charges and the jury that decided guilt were split and the size was standardised. However, it is incorrect to say that it is always 12: some jurisdictions have different numbers for different purposes. For example, rule 48 of the US Federal rules for civil procedure sets the number at not less than 6 and not more than 12. The jury system continues to evolve with various jurisdictions adopting different numbers, majority verdicts and judge only trials. There is nothing special or “scientific” about 12: it is what it is because it is what it is.
How would jury selection work for a trial of Donald Trump? Just like it does for everybody else - using the rules for criminal procedure in the relevant jurisdiction. For example, in New York, each juror must be fair and unbiased: A juror who cannot provide unequivocal assurance or whose credibility about the assurance is in doubt would properly be excused for cause. Jurors (like judges) are not blank slates; they have opinions about all sorts of things. That doesn't matter. What matters is if they can set those opinions aside and make a decision based only on the evidence. It is not necessary for juror's minds to be empty, just that they be open.
Short Answer Statements of jurors about their deliberations are not allowed to be considered for any purpose, subject to very narrow limitations which do not apply in the fact pattern you are asking about in this question. The General Rule And Its Exceptions Consideration of juror statements, subject to narrow exceptions, is barred by Federal Rule of Evidence 606(b), which has a state or territorial equivalent that is substantially similar in every U.S. jurisdiction that has true jury trials (as opposed, for example, to courts-martial which look like jury trials but are not jury trials from a legal doctrine perspective). Federal Rule of Evidence 606, which is the model for the lion's share of these rules reads as follows: Rule 606. Juror (a) At the Trial. A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence. (b) During an Inquiry into the Validity of a Verdict or Indictment. (1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters. (2) Exceptions. A juror may testify about whether: (A) extraneous prejudicial information was improperly brought to the jury’s attention; (B) an outside influence was improperly brought to bear on any juror; or (C) a mistake was made in entering the verdict on the verdict form. This is subject to exceptions only in a few extremely limited circumstances: To document interference or influence on the jury from outside the jury during the trial or deliberations (e.g. bribery of a juror, a juror's consultation of outside facts, blackmail of a juror, counsel for a party providing information not authorized by the judge to the juror). This is covered by Rule 606(b)(2)(A) and 606(b)(2)(B). To establish that a mistake was made filling out the verdict form (e.g. testimony immediately following a jury trial that the jurors confused the names of two co-defendants and incorrectly filled out the jury form convicting each one of the crimes where the jury found the other co-defendant guilty). This is covered by Rule 606(b)(2)(C). Under an exception created just this year for the first time (the source opinion of the U.S. Supreme Court by a 5-3 vote in this case, Peña-Rodriguez v. Colorado (March 6, 2017), is here), to document that one or more jurors essential to the verdict reached the result as a result of a racially/ethnically discriminatory reasons (e.g., one or more of the jurors who voted to convict in a case resulting in a conviction said "let's convict him because he's Hispanic" and then did so). This is not expressly covered by Rule 606(b), but the U.S. Supreme Court held that it is constitutionally necessary to allow it. The situation you pose does not involve any of these exceptions. Instead, it concerns the internal deliberations of a jury not subject to outside influence, and it does not involve racial or ethnic bias in deliberations. So, this information is legally irrelevant and may not be considered by any court at the trial or appellate level. Procedural Aspects Of This Question Of course, in all of these scenarios including the exceptions, the mere fact that a juror says something publicly is meaningless legally. But, there is no means by which a lawyer in a case (or anyone else) can obtain information about juror deliberations through a subpoena or other compulsory court process. The only way anyone could find out about improper jury deliberations is if a juror voluntarily discloses these facts. Any effort to introduce consideration to this statement would have to be submitted to the trial court (generally, the trial court that handled the original case, but sometimes a habeas corpus action trial court) in either the form of a sworn affidavit of the juror, or live witness testimony of the juror under oath in the trial court in a post-trial hearing of some sort. This would have to be submitted by a lawyer for the defendant (or less often by the prosecutor in the case, seeking to right a wrong discovered by the prosecutor, for example, in the context of a separate bribery investigation conducted by the prosecutor's office). The juror or a third-party would not have standing to challenge the verdict or to bring juror statements to the court's attention in a legally effective manner. A statement of a juror about the verdict or how it came to be at a trial can only be considered at the trial court level and only: (i) in a post-trial motion for a new trial, which can be considered on direct appeal, (ii) in a collateral attack on the original verdict in a different kind of post-trial motion (state practice differs regarding what these motions are called), or (iii) in a collateral attack through a separate civil action (called a habeas corpus action) to set aside a jury verdict. Generally speaking, appellate courts never consider new evidence in any kind of case and can only consider evidence that is part of the official trial court record. The only true exception to this rule is that it may consider a post-trial fact that would terminate the case for procedural reasons (e.g. the existence of a settlement by the parties, or the death of a defendant during the pendency of the appeal or earlier which would render the appeal moot). Appellate courts can take "judicial notice" of certain matters that constitute general knowledge not specific to the case before them (e.g. the existence and duration of the U.S. Civil War, or the distance between New York City and Chicago, or the name of elected officials at the time the facts of the case took place). But, evidence concerning juror statements is not something about which judicial notice may be taken. Policy Considerations Why do we have such a rule when allowing this testimony could prevent serious miscarriages of justice? In rough order of importance, the reasons include the following: To protect the ability of a jury to engage in "jury nullification", which is an issue also informed by the double jeopardy protections of the 5th Amendment to United States Constitution (applied to state and local proceedings by virtue of incorporation through the 14th Amendment to the United States Constitution and parallel state constitutional protections) against revisiting a jury acquittal in a criminal case for any reason. To minimize the burden jury service places on jurors who would otherwise routinely be interrogated by lawyers unhappy with their verdict after the trial even if they didn't want to speak with those lawyers. To protect the finality of verdicts on appeal and in post-trial proceedings as this would add another set of grounds to disturb a court decision in addition to those which can be observed in the court record. Non-Obvious Consequences Of This Rule One important consequence of this rule is that "harmless error" analysis by an appellate court, which is conducted when there is a legal error made in a jury trial to determine if the error, if it had been corrected, was material enough to change the outcome of the case, is always conducted on a hypothetical and theoretical basis rather than based upon actual factual knowledge of what would have or would not have influenced the jury's decision. Another important consequence of this rule for appellate practice is that jury verdicts will be upheld in any case where it would be possible for the trial court record to allow a jury to come to the conclusion that it did, whether or not the jury actually considered the arguments and facts it would have had to have considered to correctly reach its verdict. Thus, it is frequently the case that a jury misunderstands the jury instructions or the facts of the case and makes an incorrect decision as a result, but that verdict is upheld on appeal because it would have been possible for a jury which, for example, found witnesses that the actual did not actually believe were telling the truth to have been truthful to rule in the manner that it did. Another practical effect of this rule is that it is easier to overturn a judge's decision on appeal because the judge must articulate his or her factual and legal basis for each ruling, than it is to overturn a jury verdict, since a jury need not articulate the reasoning behind its verdict except to the extent that it is given and completes special verdict forms when it deliberates.
Yes. Juries aren't terribly accurate. There is an irreducible chance that no matter how clear the outcome should be that the jury will get it wrong. Based upon a review of the academic literature on wrongful convictions and inaccurate acquittals, I generally tell my clients that this is about 10%. Many people think that this is a low end estimate. Also, sometimes a jury will acquit a defendant in a case where they think that the defendant was actually legally guilty because of extraordinary circumstances, and so the jury will disregard the law and acquit. This practice is called &quot;jury nullification.&quot; And, as other answers have noted, sometimes the prosecution or the judicial system screws up for reasons that are unforeseeable, after a not guilty plea, in a way that makes proving your guilt difficult or impossible. Basically, if you &quot;roll the dice&quot; there is some non-zero chance you will be acquitted, while if you plead guilty, there is none. Also, sometimes court decisions will change the law in way favorable to you after the trial, and as long as your case is still on direct appeal from the conviction, you can benefit from those changes in the law, which you cannot if you simply plead guilty without any concessions. Likewise, if you are innocent and the evidence is currently strongly against you, but you wish to preserve the ability to later attack the conviction based upon future newly discovered evidence, not pleading guilty is generally necessary to preserve that option. Another circumstance where going to trial but losing can still be worth it, is where there are extenuating circumstances that make your conduct understandable, even if it is not a legally valid defense. Getting these facts in front of the judge in a fuller fashion, as a trial can make possible, can convince the judge that while you are legally guilty, that you deserve leniency. Going to trial typically results in a longer sentence, even without a plea bargain, however, so going forward with a hopeless trial is rarely a good move.
The exact procedure varies from one district to the next, but generally speaking, it is essentially by lottery. The procedure is typically spelled out in the court's local rules. Jump to page 105 of SDNY's local rules for an example. The lottery system is not entirely random, though. Frequently it is weighted to make it more likely that a case is assigned to a judge from the district's courthouse nearest to the parties, or to make it less likely to be assigned to the chief judge or a judge on senior status. There are then various other rules governing assignments of cases to new judges or visiting judges, but those typically don't happen when a case is originally filed.
Overview The rule on whether jurors may discuss a case before closing arguments is almost always a matter of statewide law and not a decision left to a particular judge in a particular case. There is good reason to believe that prohibiting pre-closing deliberation by jurors tends to make ultimate jury verdicts more accurate for reasons discussed below. The question about juror questions seems to be based upon the inaccurate assumption that jury questions are only allowed if collectively approved by the jury. Details The Rationale For Preventing Pre-Deliberation Discussions Among Jurors The Traditional Rule Described Is Not Universal First of all, prohibiting jurors from deliberating or discussing a case prior to the close of evidence and closing arguments is not universal practice. Colorado, for example, is one of the minority of reformist states that allow jurors to deliberate at any time that they are all present together in a case, after the panel is chosen. Arizona was one of the first states to experiment with this innovation. But, there is a rational reason for the older majority rule. Discouraging Pre-Judgment Of The Case This is first, to discourage jurors from reaching conclusions before all of the evidence is in, because people have a natural tendency to place more emphasis on the evidence that they hear first and to jump to conclusions before hearing all of the evidence, such as the defendant's evidence that comes last. Talking to other jurors consolidates and solidifies opinions and that makes it harder to change opinions when new evidence confronts an original opinion. Groups cling more tightly to an initial consensus than individuals. In contrast, individual jurors often change their minds during the course of a trial. Preventing Groupthink Secondly, it is to maximize the independence with which jurors reach their conclusions at the close of evidence. This matters because, empirically, the ultimate decision of a jury panel is overwhelmingly consistent with the initial pre-deliberation inclination of the median juror on the issue of guilt or innocence. The ultimate verdict of a jury is almost completely foreordained by the initial impressions of the jurors when they start their deliberations, even though it doesn't feel like that because jury deliberations cause people who are in the minority in an initial straw poll on the verdict to change their minds based upon what the other jurors have to say about 90% of the time. Twelve Angry Men (a drama and movie in which a holdout juror convinces all of the other jurors to change their mind on their verdict from their first straw poll) is an extremely outlier case that almost never happens in real life, especially in non-death penalty cases. So getting the first straw poll right is much more important than getting deliberations right since those have very predictable results. Deliberations almost never matter unless the jury has a 50-50 split in their initial straw poll and a lot of cases where there is a 50-50 split in the initial straw poll will produce a hung jury. Statistics on jury decisions To put some flesh on the numbers, the best empirical estimates of the overall accuracy of jury panels in making guilt-innocence determinations is about 90%. (Estimates on false convictions range from about 2.3% to 7% for all serious felonies including convictions arising from plea bargains in a 2007 study, a 14% acquittal rate was found in stranger rape cases where DNA evidence can lead to acquittals following jury trials, and roughly 40-47% of death sentences are overturned in the appellate and post-conviction review process.) Note that about 90% of criminal cases, overwhelmingly those with more clear cut guilt, result in plea bargains, so only about 1% of criminal defendants who are convicted are wrongfully convicted as a result of an inaccurate jury verdict. This accuracy rate somewhat underestimates how hard it is to be that accurate. It has been shown statistically (in the same article supporting the majority rule of jury verdict outcomes linked above), that about 68% of cases are pretty much guaranteed to produce convictions regardless of the makeup of the jury or the process used, while about 14% of cases that produce acquittals are sufficiently clear that the makeup of the jury or the process used doesn't matter (in a large, representative Sarasota, Florida sample). Thus, only about 18% of cases presented to juries are actually close cases and on those cases juries get the right result only a little better than 50% of the time. It is reassuring that about 95%+ of cases that are prosecuted have predictable outcomes in the system either through plea bargaining or correct jury verdicts, but not very comforting that about 2%+ of criminal prosecutions, and about one in five criminal jury trials, involve such unclear facts that their outcome at trial is basically a coin flip. In general, as a matter of mathematics, it is universally true (subject to assumptions that are present in this situation) that when something is more than 50% likely to happen in each trial as you would like it to happen, you are more likely to get a good result if you maximize the number of independent determinations that are made. In contrast, if something is less than 50% likely to happen as you would like, you maximize your odds of a desired result with as few independent trials as possible. The leading article explaining this idea is called &quot;How To Gamble If You Must.&quot; In a jury context, in real life, any given independent juror who ends up on a jury poll is more than 50% likely to get the right answer in an initial straw poll the vast majority of the time. So, the more independent jurors you have, the more likely it is that a majority of them will get the right answer. And, the fewer independent jurors you have, the more likely it is that a majority of them will make a mistake. So, by preventing pre-judgment deliberation, you increase the number of independent evaluations of the evidence that are made by the jurors and increase the probability of a correct result on the merits. The Case For The Modern Rule Allowing Pre-Closing Deliberation The counterargument for the modern rule is that an overall mistake on guilt or innocence flows from multiple earlier mistakes in interpreting particular items of evidence, and that the ultimate conclusion flows from a lot of mini-determinations. And, if someone makes a wrong mini-determination early on and can't be swayed from it once deliberations come along, this can lead to the jury being wrongfully hung. In contrast, if jurors deliberate on each item of evidence as it comes along as a complete group, the likelihood of getting any particular sub-issue wrong is minimized, and getting sub-issues right consistently may be more important to reaching a correct decision than maintaining independent points of view throughout the trial. Jury Questions Should Juror Questions Be Allowed? The traditional position is that jurors can't ask questions at all. To the best of my knowledge, juror question asking is a very recent phenomenon (probably late 1980s or later). The modern position, followed in a minority of states, allows jurors to ask questions if they are not objectionable under the rules of evidence that apply to lawyers. Some jurisdictions allow this in both civil and criminal cases, while others allow it only in civil cases. I honestly don't know what the rule in Colorado is on juror questions in criminal cases, because my practice is exclusively non-criminal. The state of the law on jury questioning in criminal cases in the federal courts is summarized in a recent 6th Circuit opinion: Juror questioning, we have explained, “should be a rare practice,” but “the balance of risks to benefits is more likely to weigh in favor of juror questions in complex cases.” The concern about allowing juror questions in criminal cases is that the burden of proof beyond a reasonable doubt is on the prosecution and it can lose simply by failing to meet that burden of proof. An answer to a juror question could provide additional evidence that turns a case where it seems likely that a defendant committed a crime but there has not been proof beyond a reasonable doubt, into one where there is proof beyond a reasonable doubt, unfairly and unconstitutionally disfavoring the criminal defendant. In a civil case where the preponderance of the evidence burden of proof makes the balance equal between the parties, and where the focus is more on getting a right result between two people who are equal before the state as opposed to protecting people from state overreach, the same considerations about aiding one side in meeting a burden of proof with jury questions don't apply to the same extent. The argument for the modern position is that psychology research shows that people make more accurate decisions when they can ask questions on points about which they are unclear. The lawyers and judge in the room may think that a point made by a witness was perfectly clear, but some of the jurors may not understand the word that someone used and come to the wrong conclusion. But, lawyers can't clarify the facts so as to assist the jurors in making the right decision if the jurors can't ask questions that illustrate what the jurors aren't understanding of the presentation before them. Deliberation As Related To Juror Questions A related issue is asking questions. Obviously if the jury wants to ask witnesses questions, they may need to talk among themselves to decide what question to put to the witness, so the instruction would seem to directly conflict with basic juror rights, such as the right to question witnesses. In my experience when juror questions are allowed, any juror who wants to ask a question may do so unilaterally without reaching the agreement of the other jurors, on the theory that even one juror who doesn't understand something about the testimony or has unanswered questions when facts are available to them, is one too many. Usually, a few jurors ask lots of questions, and many jurors ask few or no questions. So, it isn't clear how a prohibition on jurors deliberating prior to the close of evidence would change the practice of jurors asking questions. Perhaps there are places where jurors are allowed to ask questions only if they agree on those questions, but I am not aware of any such jurisdiction. In every jurisdiction that I am aware of that allows questions, individual jurors can ask them, and questions are not asked by jurors only if no juror has any questions for a witness. Also, even if jury questions did require the approval of the entire jury, my experience with how juries interact is that most juries would routinely approve almost every question of almost every individual juror anyway, so I don't know that it would make much of a difference.
There are cases out there like Unnamed Petitioners v. Connors, State v. Unnamed Defendant, Williams v. Unnamed Defendant; there have been indictments of John Doe who was only identified via a DNA profile. Not knowing the actual name of a person wouldn't pose a problem per se, and it seems that when the name is not known, John or Jane Doe is generally filled in. There was in instance a year ago in the UK where rioters who refused to identify themselves, and prosecution decided to drop the case.
An appeal to ignorance asserts that a proposition is true because it has not yet been proven false. That is not in any way the situation here. The defendant knows if he/she has or has not so the only available answers under oath are "yes" or "no" - the jury knows this too so any other answer will be seen as disingenuous. However, this information (affirmative or negative) is off limits to the jury as it could prejudice their decision, hence the mistrial. A quick judge could instruct the defendant not to answer and instruct the jury to disregard the question but if a conviction results the defence team could use the fact that it was asked as grounds for appeal. A judge must decide if the interests of justice are better served by a retrial or a tainted conviction.