Jury Trial Issues -- The Twelve Person Jury

By John DiMotto

Did you ever wonder why, in Wisconsin, a criminal defendant is entitled to a trial by a twelve person jury?

The 6th Amendment to the United States Constitution provides that "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed..." There is no reference as to how many jurors shall constitute the jury.

Article I, Section 7 of the Wisconsin Constitution provides that "In all criminal prosecutions the accused shall enjoy the right ... to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed..." Once again, there is no reference as to how many jurors shall constitute the jury.

If there is no direct language as to how many jurors shall constitute a jury, how is it that in Wisconsin we have settled on twelve in every criminal case? The answer lies in case law.

In State v. Hansford, 219 Wis.2d 226 (1998), the Wisconsin Supreme Court addressed the issue in the context of whether a six person jury in misdemeanor cases is constitutional. In absence of any direct language in the constitution itself, the Court resorted to extrinsic evidence to ascertain the intent of the framers of our constitution.

The Court looked to records from the constitutional conventions of 1846 and 1847. However, they found almost no debate about the guarantee of the right to a jury trial let alone as to the number of jurors. What the Court did find was a comment by a delegate to the convention, Charles H. Lakin, during a debate regarding whether Article I, Section 5 should prohibit judges from instructing juries other than as provided by statute. In his remarks, Lakin stated, "If it be the name of trial by jury that enamours you, you can get something that will do as well, perhaps better, than flesh, and blood, and bones. Erect within your temples of justice twelve hollow, graven, brazen images. Have them so constructed that they will case an echo; and as the dicta of the bench shall be hurled at them, the same will be reflected back to record; and if you will, you may call this, trial by jury." Far from definitive, but the starting point.

In Norval v. Rice, 2 Wis. 17 (1853), the Wisconsin Supreme Court concluded that the right to trial jury guaranteed by the Wisconsin Constitution is the right to a jury of twelve persons as recognized by common law as it existed at the time the constitution was adopted. Subsequent cases - Bennett v. State, 57 Wis. 69 (1883), In re Staff, 63 Wis. 285 (1885), Jennings v. State, 134 Wis. 307 (1908) and State ex rel Sauk County District Attorney v. Gollmar, 32 Wis.2d 406 91966) - reaffirmed this conclusion. It does not matter whether the accused is charged with a misdemeanor or a felony. The jury shall consist of twelve person.

In ensuring the right to a twelve person jury for all persons charged with a crime, the Wisconsin Constitution parted ways from the United States Constitution. Wisconsin provides greater protection to its citizens than the 6th Amendment to the United State Constitution does. In Williams v. Florida, 399 U.S. 78 (1970), SCOTUS concluded that the refusal to impanel a jury of more than six persons did not violate the criminal defendant's rights to a trial by jury guaranteed by the 6th Amendment. SCOTUS reasoned that although juries at common law generally consisted of twelve members, there is "absolutely no indication" that the framers intended to "equate the constitutional and common-law characteristics of the jury." SCOTUS held that a twelve person jury is not "an indispensable component of the 6th Amendment."

In the final analysis, when it comes to the right to a jury trial in a criminal case, Wisconsin affords great protection to persons charged than is afforded to those accused of crimes than the United States Constitution provides.