When justice is at stake, science says more jurors are better than fewer. So why are Utah juries so small?

When a person’s fate hinges on a trial jury’s decision, science shows that 12 jurors are better than fewer.

They remember facts of the case better, they deliberate longer and they better represent a spectrum of life experiences.

The 12-person tradition also has on its side centuries of history, leading to a sort of brand recognition in the American psyche.

And, like so many other conventions, Utah bucked it.

The Beehive State is one of just six — including Arizona, Connecticut, Florida, Indiana, Massachusetts — that seats fewer than a dozen jurors in most criminal felony cases. And it broke from the norm far earlier than them all — at statehood in 1896, for very Utah reasons: innovation and frugality.

“Can any man say why the number should be 12 rather than nine?” asked Samuel R. Thurman on the 19th day of Utah’s 1895 constitutional convention. He noted to the 90 or so other men gathered in what is now Salt Lake City Hall that a smaller jury meant “less men for which the State of Utah will have to pay.”

“That of itself is a consideration which I cannot ignore,” he continued, “and I believe that a jury of nine will prove just as effectual, will be just as well calculated to preserve the liberties of the people, and the rights of the people, as a jury of 12.”

Utah’s forefathers ultimately settled on eight jurors to decide all but the most serious crimes — those that could result in a death sentence — in the new state’s criminal justice system.

More than a century later, it appears there is some appetite within the nation’s highest court to return states to the 12-juror standard. Associate Justice Neil Gorsuch handed down a dissent three years ago that called the smaller jury standard’s foundational 1970 court decision in Williams v. Florida “wrong from the day it was decided.”

He further championed the cause last March, writing, “If there are not yet four votes on this Court to take up the question whether Williams should be overruled, I can only hope someday there will be.”

Utah defense attorneys have been working to lay the groundwork to meet that challenge.

Is 12 a magic number?

Kouri Richins has been in jail for nearly two years on allegations that the 34-year-old Utahn spiked her husband’s drink with an overwhelmingly lethal amount of fentanyl, killing him. The case drew national attention when Richins was arrested more than a year after Eric Richins died — after she’d published a book meant to help children cope with grief.

Kathy Nester is part of the team that took up Kouri Richins’ legal defense in May, when her other legal counsel withdrew from the Summit County case, citing an “irreconcilable and nonwaivable situation.”

In October, Nester filed a flurry of motions in anticipation of Richins’ trial — to reconsider bail, to call a bigger pool of prospective jurors and question them in person — and one she didn’t think had much of a shot, but that she said she believed in in principle: to seat 12 jurors.

Utah law mandates an ascending composition scheme to criminal juries. That means the more severe the offense, the more jurors seated to decide a verdict.

Capital cases, where a verdict could render a death sentence, returns to the 12-person standard. But all other felonies, including non-capital murder cases, require only eight jurors. Misdemeanor offenses require even fewer.

The result is defendants like Richins, charged with serious crimes and who may face a life sentence if convicted, being tried by a jury of eight peers instead of 12.

“That’s why I file it in these cases,” said Nester, “because, God forbid it doesn’t turn out well for your client. ... If the law ever changes, they may have a remedy, right? And get a whole new trial.”

David Ferguson, the executive director of the Utah Association of Criminal Defense Lawyers, said he has encouraged defense attorneys to file similar motions, but he doesn’t know how often they do.

He was “glad” to hear Nester had done it. Yes, because it could matter if the issue is ever successfully challenged and reversed in the Supreme Court, but also because he believes research that shows larger juries deliver more just — and trustworthy — results.

At least some of that is about meeting a defendant’s expectations, which is informed by what they see in media and in courtrooms across the country. It was, after all, 12 jurors who acquitted O.J. Simpson in 1995.

And, when Ferguson’s group filed an amicus brief to the Supreme Court in support of 12-member panels nearly three years ago, they cited the film “12 Angry Men” — the expectation right there in the title.

“If your position really is, ‘I’m innocent,’” Ferguson said, “and you get found guilty by fewer than 12, then that does start to raise questions about, ‘If I had the jury that the federal constitution requires, would things have been different?’”

Salt Lake County District Attorney Sim Gill said he understands why someone in Richins’ position would argue for a larger jury, but he also isn’t advocating for the standard to change. Like Utah’s constitutional framers, Gill doesn’t think the precedent of 12 jurors was divinely inspired and must remained fixed.

As Thurman said in 1895: “If it be true that the greater number we have, the better the jury will be, why not have 15, or 20, or 25, or 30?”

Some argue the longstanding 12-juror tradition was born out of the Viking tradition that bled into Europe after their conquests into England near the end of the first millennium. At the very least, it had been established for centuries in English common law by the 18th century, lawyers at the Arizona branch of the American Civil Liberties Union said in a 2022 brief to the Supreme Court.

“But if every man’s mind is constituted differently from every other man’s mind,” Thurman said, “is that any reason why it takes exactly 12 men to logically, and fairly, and squarely, determine a proposition?”

Gill thinks not. He added that the more pressing concerns in criminal trials are about maintaining due process.

“It’s about fairness. It is the consistency of application of those constitutional provisions. It’s about having access to good representation and competent representation if you’re indigent,” Gill said. “Those universal due process rules are, I think, more important than the arbitrariness of the number of jurors.”

More jurors, better deliberations

The arguments for and against smaller juries can be broken down into five categories: cost, efficiency, predictability, accuracy and representativeness, according to the National Center for State Courts’s 2021 report on jury size.

The most important factors, said Paula Hannaford-Agor, director of the Center for Jury Studies at the national center, are the diversity of perspectives in a 12-member trial and the higher quality of deliberations.

Diversity, she said, doesn’t just mean race and ethnicity. These larger juries also include more variety in ages, levels of education and life experience — transmogrifying the group into one varied entity, like the many-headed Hydra serpent of Greek mythology, to decide a case.

“Twelve heads and 24 eyeballs looking at the witnesses, looking at the evidence, talking about it amongst themselves, remembering details that not everybody would have picked up, just leads to more robust deliberations,” Hannaford-Agor said, “so you end up with more accurate fact-finding, more thorough fact-finding.”

In the legal system, the issue of jury size seems most bothersome to defense attorneys and their clients, for the simple fact, Hannaford-Agor said, that it’s harder to convict someone with a larger jury.

But she believes it should matter to the other players in the courtroom too, like prosecutors and judges.

Indeed, the American Bar Association said in their “Principles for Juries and Jury Trials,” issued in 2005 and last revised in 2023, that juries should have 12 members and their decisions should be made unanimously.

‘Wrong side of history’

There are costs associated with these larger juries, however — as pointed out by Utah’s Constitutional framers 130 years ago.

The state must pay jurors for their time, and more jurors obviously equals more time and money — in per day compensation; in renovating Utah jury boxes to accommodate more people; in the time it takes for each side to question and choose jurors for the trial; and in the time a trial can take away from those peoples’ personal lives, said Christopher Ballard, who serves as general counsel in the Utah County attorney’s office.

“That’s going to affect the whole judicial system,” Ballard said. “It’s going to take longer to seat juries, so all cases will take longer ... but when trials are delayed, then witnesses become unavailable, evidence becomes unavailable, victims have to wait longer. Defendants, frankly, will also have to wait longer for a resolution.”

He conceded that it’s “hard to argue with the idea that the jurors would be more likely to recall the evidence accurately, if you have more sets of eyes and ears that heard the evidence.” But ultimately, in his opinion, “this really is an issue for the Legislature to decide.”

Ferguson, with the state association of criminal defense attorneys, said he didn’t have plans to broach the issue with lawmakers this year, nor has his group made an effort in years past.

There are other related issues, according to Hannaford-Agor, that are “frankly sexier.”

“If you haven’t convinced them with all the literature that’s come out since 1970, you’re probably not, but there’s lots of traction right now around peremptory challenges, there’s lots of traction around who is eligible for jury service,” she said.

Should you extend invitations to those with a felony conviction? Those who aren’t U.S. citizens?

Then, there’s the fact that jury trials in the U.S. have been waning themselves. In 2009, the National Center for State Courts estimated 148,558 jury trials occurred in state courts, which dropped to around 125,000 a decade later. The next year, amid the coronavirus pandemic which rocked courthouses across the country, the center estimated just 33,880 total.

While numbers seemed to rebound some the next year — with nearly 49,000 — its still too early to know how much, according to the centers’s 2023 report, and whether numbers will continue to recover or if this relative low is a new baseline.

Kouri Richins’ case is poised to overcome the odds and is scheduled for trial in May. Nester and the rest of Richins’ legal team have been filing motions to seat a jury they think will be the most open to hearing Richins’ defense, including asking to draw jurors from outside Summit County.

However that shakes out, there will be just eight jurors deciding her fate.

From the bench of his Summit County courtroom in November, 3rd District Judge Richard E. Mrazik told Nester and the other attorneys that he had taken her ask for more jurors seriously. He seemed convinced, but was at odds with Utah law.

“The state of Utah may be on the wrong side of history on this one. It seems likely that it will be,” Mrazik said. “But when they gave me this robe, I took an oath to uphold the law as it currently exists.”

Mrazik followed the law — and denied the request.

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