Faculty Scholarship Repository
A Service of the Ross-Blakley Law Library
| Article |
| And Then There Were Twelve: The Supreme Court, Statistical Reasoning, and the Size of the Jury |
| David Kaye |
| 68 Cal. L. Rev. 1004 (1980) |
| Library Access |
|
Abstract: This article investigates whether the Supreme Court’s allowance of reducing the criminal jury size from 12 members to six articulated in Ballew v. Georgia and Burch v. Louisiana can be reconciled with its announced adherence to the reasoning of Williams v. Florida. The article suggests that such a reconciliation is possible – but only if Ballew and Burch are construed as establishing a new, and ultimately unsatisfactory, test for the constitutionality of deviations from the common law jury. It enumerates three possible standards by which the constitutionality of such departures might be judged, and it describes criteria that can be used to measure the extent to which a modified jury differs from the traditional jury of twelve. Applying rudimentary statistical theory, it also evaluates the familiar line-drawing argument as a basis for the Court’s ho0ldings. It further analyzes the more elaborate statistical models cited in Ballew which are careless and do not support the conclusion that juries of six are functionally superior to juries of twelve. Furthermore, it considers the possibility that Ballew implicitly establishes a new test for the constitutionality of changes in jury size, and argues that such a new standard is unworkable and undesirable. Any diminution in the size of the jury from the traditional twelve should be rejected as unconstitutional. |
| 289 |
| Total Views |