The Founders Revered the Right to Trial by Jury. Will SCOTUS Now Follow Their Example?

Understanding the stakes in Kian v. Florida

The U.S. Supreme Court just added a new case to its upcoming 2026–27 docket that should interest fans of early American history.

At issue in Kian v. Florida is whether the Sixth Amendment right to trial by jury requires 12-person juries in all criminal cases. Florida law says it does not. According to that state's statute books, "twelve persons shall constitute a jury to try all capital cases, and six persons shall constitute a jury to try all other criminal cases." Hamed Kian, who was tried by a six-person Florida jury and sentenced to prison for practicing chiropractic medicine with a suspended license, wants the Supreme Court to overturn his conviction and restore the 12-person jury in the Sunshine State and the handful of other states that currently lack it.

To win, Kian will have to persuade a majority of the justices to overrule the Supreme Court's 1970 precedent in Williams v. Florida, which allowed the use of six-person juries. "Williams was incorrectly decided," Kian argues, "and is contrary to the understanding of the Sixth Amendment at the time of the Founding."

At least one member of the Supreme Court seems more than ready to reach that same conclusion and rule in Kian's favor. In 2022, the Supreme Court declined to hear a similar case about the constitutionality of an eight-person jury called Khorrami v Arizona. Dissenting from that denial of certiorari, Justice Neil Gorsuch argued that "a mountain of evidence suggests that, both at the time of the [Sixth] Amendment's adoption and for most of our Nation's history, the right to a trial by jury for serious criminal offenses meant a trial before 12 members of the community—nothing less."

Two years later, the Court declined to take up a six-person jury case called Cunningham v. Florida (2024). And once again, Gorsuch filed a sharp dissent. "Florida does what the Constitution forbids because of us," he declared. "In Williams v. Florida, this Court in 1970 issued a revolutionary decision approving for the first time the use of 6-member panels in criminal cases." And "in doing so," Gorsuch continued, "the Court turned its back on the original meaning of the Constitution, centuries of historical practice, and a 'battery of this Court's precedents.'"

Gorsuch's historical argument is convincing. The Sixth Amendment's right to trial by jury was rooted in the British common law. And that British common law right, as William Blackstone explained in 1769 in his widely read Commentaries on the Laws of England, rested on the existence of 12-person juries. "The founders of the English law," Blackstone observed, "have, with excellent forecast, contrived, that…the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours, indifferently chosen, and superior to all suspicion."

To say that the right to trial by jury was of paramount importance to America's founding generation would be putting it mildly. Among the "repeated Injuries and Usurpations" charged against King George III in the Declaration of Independence, for example, is the fact that the crown "depriv[ed] us, in many Cases, of the Benefits of Trial by Jury."

Likewise, when the Anti-Federalists complained in the late 1780s about the lack of a Bill of Rights in the new U.S. Constitution, they frequently lamented the lack of additional jury trial safeguards. "How does your trial by jury stand?" Patrick Henry demanded of the Virginia Ratification Convention on June 5, 1788. "In civil cases gone—not sufficiently secured in criminal—this best privilege is gone." The Sixth Amendment was ultimately added to the Constitution to assuage such Anti-Federalist concerns.

Kian v. Florida thus presents the Supreme Court with the opportunity to both correct one of its past mistakes and vindicate a venerable constitutional right the founding generation clearly held dear.

Comments

[Mickey Rat]

"Kian v. Florida thus presents the Supreme Court with the opportunity to both correct one of its past mistakes and vindicate a venerable constitutional right the founding generation clearly held dear."

Or is it an attack on federalism and States Rights, in favor of a single standard?

Much rests on the contention that only a twelve person panel can be a jury. The reasoning of Williams v. Florida is not directly discussed here at all, even to refute.

[GOD OF PENGUIN ISLAND]

Neither is the fact that the 6th doesn't say 12. Common Law does, but I'm pretty sure The Federalist papers don't. Did any other writings by the founders?

Seems like the kind of thing that should be discussed, since it's the question at hand.

[Stupid Government Tricks]

The 6th doesn't say they have to be adults either, or a lot of other things. The fact is that "jury" meant 12 competent adults, and changing it to 6 is just another constitutional amendment by reinterpretation, bypassing Article V.

[GOD OF PENGUIN ISLAND]

Is there a state law that specifically allows jurors to be children?

If one state set the minimum age at 18 and another 21, would that be in conflict with the 6th?

It also originally meant 12 knights, so obviously not every part of the original meaning is being used.

My point was that Damon’s article is arguing that 12 is acceptable and 6 is not, but he makes no actual argument for why that is.

[BYODB]

One might simply note that the fewer jurors one has for a given case, the easier it is to get agreement.

Florida left the number at 12 for capital offenses, so it seems they are well aware of the usefulness of having more jurors in important cases, and doesn't want to bother with lesser crimes.

It seems likely that Florida simply wants to make it easier to convict for lesser crimes.

By the logic presented in reducing the juror count to six, why not reduce it to one person?

I'm not saying that twelve is a magic number, but it seems to me that it's a reasonable minimum number of jurors, and if the state wants to increase the number of a jury they'd be fine in doing so but if they want to reduce it they should go fuck themselves.

[Mickey Rat]

"I'm not saying that twelve is a magic number,..."

The legal contention in question is that 12 is the only acceptable number (at least minimum acceptable number) , otherwise it is a violation of civil rights. In that sense, supporting this suit winning means that one does think 12 is a "magic number".

[BYODB]

Studies have concluded that 12 is the optimal number as well as studies have found that smaller juries are more prone to errors. So I guess I am saying that twelve is the magic number.

Less than twelve you get more errors, more than twelve deliberation time goes way up which starts to infringe on speedy trials.

[Davy C]

studies have found that smaller juries are more prone to errors.

So... how do we know that? Maybe we should use whatever method we're using to determine whether a conviction was erroneous, to convict people in the first place.

more than twelve deliberation time goes way up which starts to infringe on speedy trials.

Deliberation time is not going to infringe on speedy trials unless you're talking like a month of deliberations.

[BYODB]

Feel free to read the studies yourself, but I'd assume the most probable way is look at verdicts that were overturned on appeal or by other means.

I don't disagree that it would be a stretch to call the delay an infringement of the right to a speedy trial compared to the court delays we already have, but it's also not that hard to realize that increasing the size of a jury to 100 people is going to result in a much, much longer process.

That might be an absurd bit of hyperbole but it does illustrate the point that there can be too few, or too many, jurors.

[Rossami]

Citations, please.

I ask because a casual search found no such studies (though it did find lots of conclusory articles with no supporting data) so obviously my search terms are wrong.

[JFree]

More accurately, the contention is that the number SIX is a number that more effectively allows Florida to violate civil rights. Which in fact was the REASON Florida chose that number - first in 1877 and then in 1967

[DRM]

The fact is that "jury" meant 12 competent adults,

Well, no. It meant twelve competent men.

If you're going to declare that, when the Fourteenth Amendment incorporated the Sixth against the states, it incorporated the composition of juries as they were invariably constituted in 1789, then please do so consistently. If a six-member panel is not a jury, neither is a panel that includes one or more women.

[Gasman]

No just any men at that
Land holding freemen was the standard of the day

[Mickey Rat]

It is typical of Root's question begging style of writing. He does at least offer some historical support on the 12 man jury being proper, but does not examine any counterargument.

[JFree]

The burden of counterargument should be on Florida. The citizens right to jury protections at trial can't be infringed by a state. So Florida has the burden of arguing why six is acceptable - with reverting to the explicit reason six was chosen (to eliminate civil rights of blacks to trial protections).

[JFree]

Or is it an attack on federalism and States Rights, in favor of a single standard?

Much rests on the contention that only a twelve person panel can be a jury.

A 12 person jury has been the established defined standard for thousands of years. From the earliest common law legal codes of Ethelred (roughly 1100 years ago) to a play by Aeschylus (The Euminides - from roughly 458 BC) ) where the 12 person jury is implemented by Athena herself to move Greece beyond revenge killings and vendettas.

Nothing arbitrary about that number if you look at the history of that. In the case of Florida, a number lower than 12 was explicitly chosen because it allows for more manipulation of who will sit on the jury. - to exclude blacks

Williams v Florida admits that a 12 person jury has been the common law standard since forever. They chose to be lazy as fuck and pretend that in the Constitution 'jury' is just a word and therefore there is no further meaning. Six is fine. So is twelve. For that matter, one would be fine too. They picked six as an acceptable number for a jury because that is what Florida had defined into law. Florida had created that precedent as the FIRST legislation of Jim Crow (in 1877) and then reinforced it in 1967 (which was the change at question in the 1970 Williams v Florida case - explicitly to eliminate blacks from juries.

[MWAocdoc]

I don't believe this is about any particular magic number but, rather, a case of "more is better" when talking about a unanimous verdict. If that is so, then tradition and experience become more important than any "federalist" bias in the system. There seems to have been considerable weight placed on the notion that requiring a dozen of your peers to agree upon your guilt was a reasonable safeguard.

[JFree]

It is partially about a 'magic number' that comes from tradition, biblical symbolism, and mathematical simplicity in any pre-decimal era. Which is why weights and measures also use 12 as a common base.

The sample size needed to be large enough to be truly 'judged by peers' in smaller communities. Back then hides (the land necessary to support a family - etymology of hide derives from hiwan meaning family) and hundreds (the amount of land to support roughly 120 families) were pretty much the definition and extent and jury pool of a community. Those measures also defined militia and citizen obligations. The sample size (diversity) needed to ensure that questions of fact get addressed and that bad verdict risk is reduced. Needed to ensure a reasonable ease of a trial/logistics and jury pool selection while still placing the burden on the court. And yes - the burden of unanimity.

So really 12 is not a magic number. It is merely a number where we moderns have lost the meaning and importance.

[Stupid Government Tricks]

Let's look at the Supreme Court and jury trials, shall we? Here's the Sixth Amendment:

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, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Look at those bolded bits. All criminal prosecutions get a jury trial. No exceptions.

Then look at this (https://www.cato.org/blog/when-constitutional-right-petty-exception):

Accordingly, the Supreme Court confected a doctrine to subvert the jury process altogether. They called it the "petty offense exception."

In the 1968 case of Duncan v. Louisiana, the Supreme Court incorporated the right to a criminal jury trial against the states. In doing so, the Court indicated that "[t]he penalty authorized for a particular crime is of major relevance in determining whether it is a serious one subject to the mandates of the Sixth Amendment." Two years later, in Baldwin v. New York, the Court established a bright-line rule, holding that any crime with a maximum sentence of more than six months is a serious one, deserving of a jury. But nearly two decades later, in Blanton v. City of North Las Vegas, absent any historical foundation, the Court cemented the "petty offense exception," firmly holding that if an offense carries a maximum sentence of six months or less, a jury is not required.

The Sixth Amendment says nothing of the sort. The Supreme Court just gutted it without batting an eye; Wikipedia says they claimed common law had such an exception, but I am not impressed when it took 180 years to "discover" something so common. How can anyone believe in the Rule of Law when mere Men can so easily make up such nonsense out of thin air? What is the point of a written Constitution when its words mean nothing?

It gets worse. The defendant in that article was being prosecuted for two six-month crimes. The Supreme Court says each one counts separately, not together, in spite of him having one trial for both charges. Six plus six equals six in Supreme Court arithmetic.

But what about someone — like Jay Carey — who is facing multiple petty offenses, where the combined maximum term of incarceration exceeds six months? This question was answered in the 1996 case of Lewis v. United States, in which the Court held that even if a defendant is facing multiple petty charges, each with a maximum six-month sentence, the person is still not entitled to a jury trial. The justices ruled that the right to a jury trial is tied to the severity of each individual offense, not the total potential sentence.

[MollyGodiva]

If hedge BoR required 12 people it would have said so.

[Bill Poser]

If it was widely understood at the time that a proper jury consisted of 12 members, the Founders might have felt it unnecessary to specify the number.

[Bill Poser]

Note that it did not specify that the jurors had to be adults, citizens, or male, all of which were assumed at the time, and the first two of which are still assumed.

[SCOTUS gave JeffSarc a big sad]

Have you even met California yet?