1 441 U.S. 130 (1979).Google Scholar

2 In the courts of limited jurisdiction, the 5-out-of-6 member jury is standard in six states—Arizona, Kentucky, Nebraska, Oklahoma, Oregon, and Texas. In Montana 4 out of 6 jurors can find a verdict, and in Utah 3 out of 4 jurors. In the Virginia courts of limited jurisdiction a jury of 5 must be unanimous.Google Scholar

3 Minn. Const, art 1., § 4; Minn. Stat. Ann. § 546.17 (West 1955); N.J. Const, art. 1, § 9; N.Y. Const, art. 1, § 2.Google Scholar

4 Fisher v. Hatcher, 44 Mich. App. 541 (1973).Google Scholar

5 435 U.S. 223 (1978).Google Scholar

6 399 U.S. 78, 86 (1970).Google Scholar

7 399 U.S. at 100 (emphasis added and note omitted).Google Scholar

8 441 U.S. at 138 (emphasis added).Google Scholar

9 I presented the essence of this argument at a pretrial hearing in Warner v. General Motors Corp., No. 75–11229-NI (Mich. Cir., Van Buren, 1981).Google Scholar

10 Courts requiring that the same majority agree on all issues include: McCormick v. Octopus Fresh Fish Market and Seafood Grotto, 1 Civ. 46196 (1st Cir. 1981); Ferguson v. Northern States Power Co., 307 Minn. 26, 239 N.W.2d 190 (1976). The courts are divided on whether to insist that a required minimum majority must be composed of the same individual jurors. The standard situation arises if, for example, the law allows 9 out of 12 jurors to find a verdict, and 9 jurors agree on liability, 9 jurors agree on damages, but one juror who voted for liability failed to agree on the damages, and instead a juror who had voted against liability is now one of the 9 jurors who agreed on the damages. One court argues: “it is inferred [the juror who voted against liability] would hold out for a minimum verdict for plaintiff …. We see no sound reason to assume that such a juror would violate his oath.” (Ward v. Weekes, 107 N.J. Sup. Ct. 351.) Similarly Forde v. Ames, 93 Misc. 2d 723 (Sup. Ct. 1978): “The appropriate assumption in such a case is that the juror who is outvoted on the question of liability will accept the outcome and continue to deliberate … honestly and conscientiously ….” Other courts have decided differently, apparently being less optimisitic about the ability of the outvoted juror to “accept” the majority verdict on liability: Murphy v. Sherman Transfer Co., 62 Misc. 2d 1960, Sup. Ct. App. (1970), and Ferguson v. Northern States Powers Co., 307 Minn. 26, 239 N.W.2d 190 (1976). In Wisconsin a statute prescribes: “If more than one question must be answered to arrive at a verdict on the same claim, the same five-sixth of the jurors must agree on all the questions” (Wis. Stat. Ann. § 805.09(2) (West 1977)). It would be constructive to learn whether the jurors who were outvoted on liability but then voted on the damage issue did or did not start out at the lower end of the damage spectrum.Google Scholar

11 See Harry Kalven, Jr., and Hans Zeisel, The American Jury 487 (Boston: Little, Brown & Co., 1966).CrossRefGoogle Scholar

12 435 U.S. 223 (1978).Google Scholar

13 In its efforts to deal with the problem of minority representation, the law by necessity fastens upon recognizable demographic characteristics of jurors such as sex, race, age, etc. These characteristics are only indirectly related to whatever minority values or perceptions may be relevant in a certain case, such as different views as to what constitutes negligence, or as to the appropriateness of certain damage awards. It is the great accomplishment of random selection to assure, automatically, optimal proportional representation of all minorities and minority views.Google Scholar

14 435 U.S. at 236. Compare on this point Kaye, David H., And Then There Were Twelve: Statistical Reasoning, the Supreme Court, and the Size of the Jury. 68 Cal. L. Rev. 1004 (1980)at 1026ff.Google Scholar

15 Another possible way of defining a “wrong verdict” would be comparing the jury's verdict with the decision the presiding judge would have reached had he tried the case without a jury. It might be interesting to see whether the discrepancies are more frequent with 6 member juries than with 12 member juries. The difficulty with that test is that its results require adjustment because the jury's deviation from what the judge would have done does not necessarily constitute a “wrong verdict.” Occasionally the jury will deviate for a reason that represents a tenable moral position for a jury, although not for the judge who is bound to the letter of the law. (Compare Kalven & Zeisel, supra note 10, at 429.).Google Scholar

16 See Kalven & Zeisel, supra note 10, at 488. Henry Fonda's feat in Twelve Angry Men has hardly ever a parallel in real life. I would have said “none” until I happend to find an instance, albeit a highly irregular one. See Zeisel, Hans & Diamond, Shari Seidman, The Jury Selection in the Mitchell-Stans Conspiracy Trial, 1976 A.B.F. Res. J. 151.Google Scholar

17 The survey was conducted in Atlanta, Georgia, for lawyers who were looking for voir dire guidance.Google Scholar

18 Mich. Const, of 1963, art. 1, § 14.Google Scholar

19 Mich. Const, of 1963, art. 4, § 44.Google Scholar

20 Mich. Comp. Laws Ann. § 600.1352.Google Scholar

21 44 Mich. App. 541 (1973).Google Scholar

22 44 Mich. App. at 549–52. Justice Levin in fact concurred in the court's decision, however, only on the limited ground that in the particular case at bar the 5-out-of-6 provision had not been operative, since the jury's verdict had been unanimous.Google Scholar

23 399 U.S. 78 (1970). We may note that the New Hampshire Supreme Court disregarded and thus by implication rejected Williams and Colgrove when asked by the state's senate whether the authorization of a jury of fewer than 12 members would violate the United States or the New Hampshire constitutions. The justices unanimously referred to an opinion their court had rendered in 1860 on this issue: “‘no body of less than twelve men, though they should be by law denominated a jury, would be a jury within the meaning of the constitution …. nor [has the legislature the power] to provide that a number of the petit jury, less than the whole number, can render a verdict.’” The justices add: “We reaffirm this [1860] decision, believing that the vitality of its conclusion remains today, especially in light of the number of empirical studies that have questioned the impact of the six-member jury on our court system” (Opinion of the Justices, No. 81–196, N.H. Sup. Ct., 431 A.2d 135, 137).Google Scholar

24 441 U.S. 130 (1979).Google Scholar

25 435 U.S. 223 (1978).Google Scholar

26 McRae v. Grand Rapids, Lansing & Detroit R.R., 93 Mich. 399, 53 N.W. 561 (1892); Swart v. Kimball, 43 Mich. 443, 5 N.W. 635 (1880). Cf. Chicago & Michigan Lake Shore R.R. v. Sanford, 23 Mich. 418 (1871); Paul v. Detroit, 32 Mich. 108 (1875).Google Scholar

27 93 Mich. 399 (1892).Google Scholar

28 Fisher v. Hatcher, 44 Mich. App. at 544, 551 n.13.Google Scholar

29 See text at note 5 supra.Google Scholar

30 “The language of the 1963 constitution which specifically authorizes verdicts by ten jurors in a case tried to a 12 member jury and specifically authorizes the legislature to provide for juries of less than 12 members in civil cases, but is silent as to whether a non-unanimous verdict might be received in such cases, would seem to provide a substantial argument that the five juror verdict is unconstitutional.”Heuer, Jeffrey G. & Shannon, Brian G., Constitutional Law, 20 Wayne L. Rev. 325, 344 (1974).Google Scholar

31 Curtis v. Loether, 415 U.S. 189 (1974); Hardware Dealers Mut. Fire Ins. Co. v. Glidden Co., 284 U.S. 151 (1931); Hawkins v. Bleakly, 243 U.S. 210 (1916).Google Scholar

32 591 F.2d 1164 (5th Cir. 1979).Google Scholar

33 Michigan and federal courts have held that due process requires a fair hearing by a fair tribunal. Meshriy v. Sun Oil Co., 67 Mich. App. 709 (1976), cert, denied, 429 U.S. 1043 (1977); Armstrong v. Manzo, 380 U.S. 545 (1965); Bradford Audio v. Pious, 392 F.2d 67 (2d Cir. 1968); Knapp v. Kinsey, 232 F.2d 458 (6th Cir. 1956). The Michigan Supreme Court has stated that due process requires an impartial tribunal. Kar v. Hogan, 399 Mich. 529 (1976); Milford v. People's Community Hosp. Auth., 380 Mich. 49 (1968). Milford, in fact, specifically recognizes the application of Fourteenth Amendment due process to Michigan tribunals.Google Scholar

34 See the Federal Jury Selection Act of 1968.Google Scholar

35 399 U.S. 78, 86 (1970).CrossRefGoogle Scholar

36 413 U.S. 149 (1973).Google Scholar

37 See text at note 5.Google Scholar

38 413 U.S. at 157 (emphasis added).Google Scholar

39 Otherwise there is the danger that failures of these minijuries will be used in turn as arguments against the jury itself. The federal minijury of 6 is already being used for that purpose, if for the present only with respect to the so-called complex cases. See Lempert, Richard O., Civil Juries and Complex Cases: Let's Not Rush to Judgment, 80 Mich. L. Rev. 68 (1981).Google Scholar