Juries in Flux

While the right to a trial by an impartial jury remains a cornerstone of the Anglo-American legal tradition, the modus operandi of a “trial by jury” in the United States has been in constant flux. During the last 125 years, twenty-eight states in the U.S. reduced the size of their juries, while three others allowed non-unanimous verdicts in felony and/or misdemeanor cases. Blackstonian ratios and burdens of proof exhibited similar variations across jurisdiction. In 2020, the U.S. Supreme Court cast a critical eye on non-unanimous juries and reintroduced the requirement of unanimity for all felony convictions. In 2023, jury size also received scrutiny from the U.S. Supreme Court, underscoring the enduring volatility of criminal jury practices in the United States. U.S. states currently have the authority to determine jury size, retrial rates, and the Blackstonian ratio applied within their jurisdictions. In this paper, we examine the critical interdependence of these changes in jury structure and their impact on the expected correctness of verdicts and on the decisiveness and accuracy of the jury process. We conclude by discussing how these state-level decisions are often inconsistent with many states’ ability to uphold their stated policy objectives and Blackstonian ratios.